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Find out: Are your ED staff parking patients with EMS?
"Parking" patients with emergency medical services (EMS) crews still can happen even when the risk manager knows it is wrong and has taken an official stance against it, experts warn.
Risk managers may be aware that the Centers for Medicare & Medicaid Services (CMS) says emergency departments (EDs) may violate the Emergency Medical Treatment and Labor Act (EMTALA) by parking patients with EMS crews instead of officially taking charge of the patients in the ED, but that doesn't mean the practice isn't still going on in your ED.
ED staff sometimes resort to parking under the mistaken notion that patients are not covered by EMTALA as long they still are in the hands of the EMS crew, notes Roberta Carroll, a senior vice president for Aon Healthcare in Chicago. Even if the risk manager has told them not to park patients, ED staff still may think the practice is OK as long as the EMS crew doesn't complain, she says.
A cooperative EMS won't change the law
But a cooperative EMS crew can't change the EMTALA rules, Carroll says. "The hospital is still obligated to EMTALA," she explains. "Even if the EMS crew is trying to be helpful and offers to hold on to the patient for an hour, that doesn't relieve the hospital of its duty under EMTALA. This isn't just about avoiding strife between the hospital and the EMS crews."
Parking patients with EMS crews can happen even if it not sanctioned by the hospital as a coping strategy for an overcrowded ED, says Mary Malone, JD, of Hancock Daniel, a health law firm in Glen Allen, VA. Malone recommends that risk managers actively prohibit parking and make sure that ED staff do not see it as an acceptable option when the going gets tough.
"It can be something that people decide to do on the fly, but it's a really poorly thought-out solution," she says. It comes from having an essential misunderstanding of the EMTALA law, Malone says. Once that ambulance rolls onto your lot, the EMTALA obligation is triggered, she says. "So staff are just fooling themselves if they think they can let people stack up with EMS and they're off the hook," Malone says.
ED staff sometimes park patients with EMS crews as a way to cope with overcrowding and short staffing, notes Mary Jean Geroulo, JD, an attorney with the law firm of Stewart Stimmel in Dallas. Geroulo previously worked in health care administration for more than 15 years, including serving as a hospital CEO. She explains that parking patients with EMS crews has the potential for devastating effects on a hospital if CMS investigates. An EMTALA violation is bad enough, but this violation could even lead to a violation of the Medicare Conditions of Participation.
"This is something that should be on the top of the list for things you want to stop dead in their tracks," she says. The potential consequences are just too severe, Geroulo says. "The problem is that simply telling ED staff it is prohibited may not get that message across," she says. "It may take some face-to-face discussions to impress on them how important this is."
CMS: No parking
CMS clarified its position on July 13, 2006, with a letter to surveyors. (To see the letter, go to www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter06-21.pdf.) The letter pointed out that under EMTALA, hospitals have an obligation to assess the patient's condition once they "present" at a hospital's dedicated emergency department. An emergency medical condition triggers the obligation to provide the treatment necessary to stabilize the patient, but because the determination of an "emergency medical condition" is subjective, there is enough of a gray area that CMS concluded there "may" be a violation of the law.
After acknowledging that EDs are challenged by overcrowding, the letter stated that parking "is not a solution. 'Parking' patients in hospitals and refusing to release EMS equipment or personnel jeopardizes patient health and impacts the ability of the EMS personnel to provide emergency services to the rest of the community."
Risk managers are unlikely to know that ED staff are parking patients with EMS crews until someone complains, and then it may be too late to prevent the damage, says Sean P. Dwyer, JD, a partner with the law firm of Havkins Rosenfeld in New York City. Once a complaint arises from and EMS crew or a patient, it will not be of much help to show that the risk manager sent a memo declaring parking patients is not acceptable.
At that point, it could even come back to hurt you if you sent a memo and then didn't do anything to enforce it, he says. "It's like anything in risk management and liability," Dwyer says. "If you have a policy and you didn't follow it, that can be worse than not even having the right policy in place at all."
The 2006 letter has caused many hospitals to back down from using this strategy as a coping mechanism in the ED, Dwyer says. That means any hospital that continues to park patients with EMS crews is even more of an outlier now and will draw the attention of CMS surveyors, he says.
Dwyer recommends that risk managers meet with EMS managers in the community to come up with a solution that works on both sides of the equation. Complaints about parking may originate with EMS crews who feel they are being abused, so the potential risk and liability could be minimized by working more cooperatively with EMS providers, he says.
"The important lesson at this point is that you need to be proactive in doing something about this. Go down and meet with your ED manager, talk to them about what really goes on, find out what the reality is in the middle of the night," he says. "You can't fix it unless you know what really goes on."
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