Statement from CMS region 4 office could have far-reaching implications for EDs nationwide

On Jan. 18, 2013, the South Carolina Hospital Association requested an opinion from its CMS Regional Office regarding the use of “pain posters” (Prescribing Pain Medication in the Emergency Department) that were developed for posting in emergency department waiting rooms and treatment areas. Despite the fact that these posters were well intentioned and proposed to deter inappropriate opioid drug seeking, concerns about CMS’s perspective and compliance issues with EMTALA must have been contemplated. Otherwise, why would such an opinion be requested? In summary, the CMS Chief Medical Officer for the Atlanta Regional office (region 4) responded—to the surprise of many. Dr. Rick Wild responded on behalf of CMS Region 4 making several observations and providing words of caution, strongly discouraging the use of such postings. In his response, Dr. Wild stated the following (summarized):

• The definition of an “Emergency medical condition” is a medical condition manifesting itself by acute symptoms of sufficient severity including severe pain, psychiatric disturbances, and/or symptoms of substance abuse.
• “Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.”
• “Accordingly, the language regarding, ‘Prescribing Pain Medication in the Emergency Department,’ which you have provided and any similar language, which the hospital might choose to post in patient waiting rooms or treatment rooms, might be considered to be coercive or intimidating to patients who present to the ED with painful medical conditions, thereby violating both the language and the intent of the EMTALA statute and regulations.”

These statements have generated a great deal of debate and discussion. Some say, “Well this is just an opinion.” Others have said, “This only impacts Region 4,” and yet some have said, “We’ll just word ours a little better.”

To help clarify the implications of this statement, I have asked Dr. Wild and CMS to clarify their opinion, which they have done with the written interview responses below.

—Kevin M. Klauer, DO, EJD, FACEP, Medical editor in chief, ACEP Now

1) Can you tell us about CMS EMTALA enforcement policy and the CMS Region 4 letter dated Feb. 6, 2013 regarding “Prescribing Pain Medication in the Emergency Department” (in general)?

CMS is responsible for the enforcement of and issuance of regulations, guidance, and policies pertaining to the Emergency Medical Treatment and Labor Act (EMTALA) (Sec. 1867 of the Social Security Act, 42 U.S.C.1395dd). The CMS Central Office in Baltimore has the overall responsibility for issuing regulations, guidance and policy, and each of the ten (10) CMS regional offices are responsible for the enforcement of the EMTALA law within their areas of jurisdiction and for responding to questions regarding EMTALA enforcement policy. The individual CMS regional offices regularly communicate with CMS Central Office and also conduct regular conferences between the central office and across all the regions to ensure that CMS policies are implemented and enforced in as uniform manner as possible. Each CMS regional office works with their respective state survey agencies and quality improvement organizations (QIOs) in each enforcement investigation and action. EMTALA enforcement is complaint-driven, i.e., investigations occur in response to complaints, which suggest violations of EMTALA. Each case is investigated and decisions are rendered based on the unique facts and circumstances of that case. Each CMS region is responsible for the final determination of whether EMTALA was violated, for issuing notices of termination from the Medicare and Medicaid programs, and for approving plans of correction submitted by hospitals to avoid termination. Additionally, each region refers cases to the HHS Office of the Inspector General (OIG) for consideration of possible imposition of civil monetary penalties when appropriate.