a. History of why and when the CMS Region 4 letter regarding “Prescribing Pain Medication in the Emergency Department” was drafted?

Region 4 was made aware of instances or proposals to post signage in emergency department waiting areas and distribution of informational materials pertaining to “Prescribing Pain Medication.” The Region 4 letter was written in response to an inquiry from a state hospital association regarding these practices and their possible violation of the EMTALA statute and regulations.  Subsequently the same issue has been arising in other CMS Regions. 

The Region 4 response represents current national CMS policy. This is not a new policy, but the application of the current law, regulations, and CMS policies to this particular situation.

b. What are the concerns of CMS?

CMS shares the concerns of public health organizations and the hospital industry about prescription drug abuse and its harmful effects.  We understand that hospital EDs face considerable challenges in dealing with individuals seeking pain medication and controlled substances for non-legitimate purposes. We emphasize that it is within the bounds of reasonable professional judgment and discretion for a physician or other licensed healthcare practitioner to provide or withhold opioids and/or other methods of pain control, depending on the specific clinical circumstances of an individual’s presentation.

However, the posting in an ED of signs and/or distribution of brochures emphasizing that certain types of pain medications will not be prescribed appears designed to indiscriminately discourage any individual seeking treatment for pain from remaining in the ED for a medical screening examination or from coming to that ED in the future. Furthermore, such signage or brochures raise questions about whether the hospital would provide stabilizing treatment in cases in which administration of opioids might be clinically appropriate. In summary, hospitals, which employ such signage or disseminate similar brochures, are at risk of being found noncompliant with EMTALA requirements.

The EMTALA statute requires that any individual who comes to the emergency department for a medical condition must be provided an appropriate medical screening examination (not merely a triage exam) by an appropriately credentialed and qualified medical professional to determine whether or not an emergency medical condition exists. It is significant that the statute defines “emergency medical condition” to include symptoms such as severe pain. Additionally, the Medicare provider agreement statute (Section 1866(a)(1)(N)(iii)) requires hospitals to post conspicuously in any emergency department a sign that specifies the rights of individuals under EMTALA with respect to examination and treatment for emergency medical conditions and women in labor. Signs that announce restrictions on treatments, regardless of the facts of an individual’s case, appear to be at odds with the signage hospitals are required by law to post in their EDs.