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(Editor’s note: This is the first of a two-part series on nonphysicians and medical screening examinations [MSEs]. This month, we cover how to comply with EMTALA while using nonphysicians for MSEs, and liability risks. Next month, we’ll cover what to include in protocols for this practice.)
It’s every ED manager’s nightmare: When an ED nurse sent a feverish, lethargic 2-year old girl to a private physician without a medical screening examination by a physician, there were tragic results. Several hours later, the child returned, dead from meningitis. The child was given only an initial triage, not the scope of assessment required by the Emergency Medical Treatment and Active Labor Act (EMTALA).
"The ED was unable to obtain prior approval for the visit from the gatekeeper physician in the patient’s Medicare plan," explains Stephen Frew, JD, president of the Rockford, IL-based Frew Consulting Group, which specializes in EMTALA compliance.
The hospital was cited by the Baltimore-based Health Care Financing Administration (HCFA) for failure to have proper policies and procedures in place and for allowing a nurse to discharge a patient without being seen by a physician for an MSE, Frew notes. The nurse and outside physician also were named in malpractice counts, and the confidential settlement was seven figures, he reports. "From the HCFA enforcement end, this case is typical of cases for nonphysician MSE citations," he warns.
Don’t let this scenario occur in your ED, urges Frew. Use of nonphysicians for MSEs has resulted in numerous citations and significant litigation, he notes. (See "EMTALA compliance checklist," in this issue.) "Typically, the problems arise from an assumption that nurses can simply be assigned to triage, and that triage classifications are sufficient for medical screening," he explains.
Although adverse events or poor outcomes certainly increase the probability that HCFA will be notified and an investigation will follow, under HCFA standards, a bad outcome is not required for a violation to be cited, Frew emphasizes. "They also state that a bad outcome does not necessarily mean a violation occurred, but it increases the index of suspicion," he adds.
Violations will be cited if HCFA determines that the system is not sufficiently documented, if protocols are not followed, or if the surveyor thinks that, in retrospect, the patient needed physician involvement that was not provided, warns Frew. (See excerpts of HCFA regulations pertaining to MSEs, in this issue.)
By using nonphysicians for MSEs, you also risk an EMTALA violation due to inconsistent treatment, says Todd Taylor, MD, FACEP, an attending ED physician at Good Samaritan Regional Medical Center in Phoenix, AZ. "Invariably, there will be some disparity, where some patients see a physician and others get a less qualified individual," he explains. "This could be construed as disparate care, which is prohibited by basic EMTALA principles."
Despite the obvious risks of using nonphysicians for MSEs, the practice is surprisingly common. A recent study found that 37% of EDs at academic medical centers use nonphysicians for MSEs at least occasionally.1 A third of these centers reported poorer clinical outcomes than expected from ED care as a result of the nonphysician MSE.
This practice is common in small communities that do not have a full-time physician in the ED and in fast-tracks in larger ED’s, reports Frew. "Some hospitals have flirted with this practice, thinking they can cut costs," he adds. "But where the issue is financial, they usually end up violating in multiple manners." As a result, hospitals are frequently cited for failure to properly designate staff to perform MSEs, and failure to provide appropriate protocols, Frew says. (See "Using nonphysicians for MSEs: Is it worth it?’" in this issue.)
Here are ways to avoid EMTALA violations when using nonphysicians for MSEs:
• Avoid using nurses to perform MSEs. Using nurses to perform MSEs is a very risky practice in the ED, warns Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. Never use nurses to conduct MSEs in the ED, Bitterman advises. "HCFA always determines that the patient was too sick or too complicated for the nurse alone to screen the patient and that the patient should have been seen by the emergency physician," he says.
• Never substitute triage for an MSE. The triage examination is not an MSE, but merely a tool by which the ED determines the order in which the MSE will take place, says Jonathan D. Lawrence, MD, JD, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA.
Every patient who presents must receive triage and a complete MSE, says Frew. "This generally amounts to a full ED visit," he acknowledges.
• Address the use of nonphysicians at remote sites. Realize that the obstetrical department, outpatient clinics, psychiatric assessment units, urgent care clinics, and all off-site locations operating under the new outpatient prospective payment system (OPPS) also must address MSEs and authorization of appropriate personnel if the MSE is not done by a physician 100% of the time, Frew stresses. (See sample policy for nurse performance of medical screening examinations in the obstetrical department, in this issue.)
Off-site locations without physicians will be at high risk for violations if they fail to have policies and procedures for assessment of presenting unscheduled patients and proper designation of medical screening personnel, says Frew. In the case of OPPS sites, the policies also must provide a determination of when the patient needs to be transferred to the home facility or nearest available facility, as a physician might not be available on-site to meet the requirements, notes Frew.
• Allow only qualified individuals to perform MSEs. The basic rule is that nonphysicians may perform the MSE in areas where they are properly designated, says Frew. "HCFA guidelines specifically indicate that this is similar to credentialing’ a person for a role, in that it is a formal designation and may not be one that changes frequently," he says. Frew notes that HCFA considers the following six factors to decide whether the designation process is adequate:
1. There must be formal designation by the governing board of the hospital as a "qualified medical person" or qualified screener.
2. The individual must be acting within the scope of practice for the individual level of licensure. The MSE must be sufficient to reach a diagnosis by exclusion; in other words, no emergency medical condition, as defined by the law, is present.
3. The individual must be acting under written protocol.
4. The individual must be acting within a written job description that includes training and competency standards.
5. There must be designation of whatever requirements there are for contact with a physician. Some states only allow nurses in contact with a physician to function under protocol for a medical screening exam.
6. There must be objective criteria for determining when the presenting condition exceeds the scope properly delegated to a nonphysician and when a physician must come in to complete the screening exam.
• Document carefully. If you use nonphysician screeners, you must maintain careful quality assurance documentation, cautions Frew. "This must cover adequacy of the medical record and adequacy of the scope of the MSE," he says. "Particular concern should be given to scope of practice and return visits."
1. Beddingfield FC, Uner AB, Kwon H, et al. A survey of nonphysician medical screening examinations in academic emergency medicine. Acad Emerg Med 2000; 7:61-65.
For more information about using nonphysicians to conduct medical screening examinations, contact:
• Robert A. Bitterman, MD, JD, FACEP, Department of Emergency Medicine, Carolinas Medical Center, 1000 Blythe Blvd., Charlotte, NC 28203. Telephone: (704) 355-5291. Fax: (704) 355-8356. E-mail: firstname.lastname@example.org.
• Stephen Frew, JD, Frew Consulting Group, 6072 Brynwood Drive, Rockford, IL 61114. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: email@example.com.
• Jonathan D. Lawrence, MD, JD, Emergency Department, St. Mary Medical Center, 1050 Linden Ave., Long Beach, CA 90813. Telephone: (562) 491-9090.
• Todd B. Taylor, MD, FACEP, 1323 E. El Parqué Drive, Tempe, AZ 85282-2649. Telephone: (480) 731-4665. Fax: (480) 731-4727. E-mail: firstname.lastname@example.org.