Risk Managememnt for Legal Issues

Abstract

The purpose of this paper is to succinctly define the legal issue of the Emergency Medical Treatment and Active Labor Act (EMTALA), to identify the legal and regulatory principles and concepts affecting EMTALA, and how compliance with regulatory bodies will be achieved. This paper will also include risk management techniques to addresses patient safety and required reporting and resolution. Finally, it will include systems-based risk management recommendations for the future, lessons learned, and methods to minimize risk.

Risk Management for Legal Issues

It is critical from a risk-management perspective that hospitals be concerned with patient safety and ensuring compliance with EMTALA. Patient safety is compromised if EMTALA is not strictly followed in the ER. For example, a hospital in Chicago failed to give a patient the proper MSE and the patient was left unattended in the waiting room for 3 hours, which resulted in the patient later being found unresponsive. The patient was never properly logged into the hospital’s computer system and the patient was eventually taken back to a room where he was pronounced dead (Austin, 2011). A hospital in California was required to pay $30,000 after releasing a 15-year old narcotics overdose patient after giving her medication and after only three hours, she returned home and later died. A Michigan hospital was fined $5,000 after refusing to treat an elderly male complaining of chest pains. These are just a few of many examples and hospitals are at serious risk, both from a fines/penalties standpoint, as well as from a legal standpoint. The families of patients such as these could file suit and end up winning a large settlement.

On an organizational level, hospitals must employ risk managers and compliance officers to ensure that all laws, policies, mandates, and ethical guidelines are being strictly adhered to. Information regarding compliance needs to be disseminated by these individuals/departments to all levels of personnel from doctors, all the way to patient registration, and even service-level employees. American Society for Healthcare Risk Management (2009) suggests that hospitals promote a “safety first” culture that includes: excellent two-way communication, encouraging all workers to be responsible for patient safety, prioritizing safety goals above financial goals, allocating appropriate resources to educating all levels of staff on safety, having a team in place to analyze root-causes for sentinel events that occur, and develop plans to keep such events from occurring in the future. By holding everyone accountable for safety, employees at all levels will work together on solutions and help make safety a number one priority. Open and honest communication regarding safety concerns should be fostered and can offer opportunities for learning from mistakes. Reporting of such concerns should be encouraged and not necessarily result in punitive actions.

Another risk management tool that could be used is the “Input/Throughput/Output” (I/T/O) model. This model provides a structure for examining factors that affect emergency department operations and delays. There are some suggested compliance practices in this model that compliance officers should enforce to improve legal issues. Hospitals should review all EMTALA-related policies and procedures to ensure that the legal and regulatory requirements are addressed adequately. During the review, weaknesses in the policy should be identified that might put the hospital at risk of noncompliance or make it vulnerable to private cause of action. Always verify that the every member of the staff is following the policies and procedures for ensuring appropriate medical screening, and make sure these procedures are applied uniformly to all people with similar symptoms presenting themselves in the emergency department. In other words, hospitals would have to be able to demonstrate that all patients were treated uniformly (Rosenbaum, Siegel & Regenstein, 2005). Hospitals must also keep extremely good documentation, especially in cases of patients that leave without treatment (LWOT) or leave against medical advice (AMA). “Without a log of every patient contact in the ED, the hospital will be defenseless against a patient claim that he or she was misinformed or mistreated” (Brown, 2003).

Revenue cycle losses have become a major issue as of late because of the state of the economy and the growing number of uninsured and underinsured. While EMTALA was created for patient rights, there have been many emerging problematic issues due to the current health care climate. This law has been a hindrance to emergency providers’ attempts at an effective department revenue cycle which has resulted in “patient dumping” to other facilities due to noncompliant employees concerned with a lack of insurance or inability to pay for service (Health Care Registration, 2008). Hospitals have become a “safety net” for patients because they know they are guaranteed to receive care so physicians are being forced to make critical decisions without adequate medical histories resulting in malpractice suits (Bitterman, Bitterman- Fish, 2009). With an overcrowding of patients practicing their EMTALA rights, emergency rooms are hindered in their services to provide for a true emergency which only continues to add to the loss of revenue.

In accordance with EMTALA, patient access employees may register and even initiate payment dialogues with ED patients as long as such discussions do not delay the provision of needed emergency care. As noted by the OIG, EMTALA allows ED providers to conduct “reasonable registration processes, which typically include the collection of demographic information, whom to contact in an emergency and other relevant information” (Healthcare Registration, 2008). Hospitals must have policies and procedures in place such that registration functions do not deter proper care. Providers must be able to reasonable attain information from patients so the revenue cycle can be maintained, but also so that proper patient follow-up can occur for a variety of reasons. “Patient access leaders, therefore, should examine and establish ED registration processes that ensure EMTALA compliance and that, at the same time, best serve the provider organization and its patients, and develop effective ED registration processes that accomplish both of these objectives. Patient access leaders should avoid seeking prior authorization from health plans or prepare patient financial responsibility forms prior to initiating the medical screening examination or stabilizing medical services” (Healthcare Registration, 2008). Brown (2003) suggests