Further, federal EMTALA regulations (42 CFR 489.24) reiterate and expand upon these statutory requirements. For example, 42 CFR 489.24(d)(4)(iv) states that “Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.” Although certain signs and literature posted and distributed in emergency department waiting areas may be intended to “educate patients,” they nevertheless may have the real or perceived effect of discouraging an individual from remaining for further evaluation, or stabilizing treatment and thus be in violation of EMTALA. It should also be noted that EMTALA is a federal statute, which supersedes state laws, regulations, or municipal ordinances which are in conflict with EMTALA.

In some cases, CMS is asked to pre-approve or endorse specific or “model” language for waiting room signs or handout materials. However, as a matter of policy, CMS does not provide prior approval to any individual hospital’s policies and procedures, nor does it review a hospital’s EMTALA policies and procedures outside the context of a specific investigation of an EMTALA complaint. Each EMTALA case complaint or investigation will be judged based on the particular facts of each case. Certain signs or materials posted or distributed in ED waiting rooms may be determined in the course of such investigation to be inconsistent with the EMTALA signage requirements and/or to have the potential to discourage individuals from remaining in the ED.

c. What was the process of drafting the Region 4 letter of Feb. 6, 2013, pertaining to “Prescribing Pain Medication in the Emergency Department?

The Region 4 response was drafted by me, the CMS Atlanta regional chief medical officer, who is a board certified emergency medicine specialist, in consultation with the federal statutes, regulations, and sub-regulatory guidance and with specific consultation with the CMS central office and other regional offices. 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.

2) Many have reported that this is only a Region 4 opinion and have stated it is only an opinion and not policy and that this is not the position of all CMS regions. Can you speak to that?

As stated above, this letter was developed in consultation with CMS’s central office, has been shared with all CMS regional offices, and is being followed by CMS regional offices. However, given the frequency with which the issue is now arising and the questions about whether this letter represents CMS policy, CMS may issue a national memorandum on the topic.

3) Do you see alternatives to ED waiting room patient signage and flyers for chronic opiate needs when patients present to the ED?

Yes. In accordance with standard accepted medical practices and in accordance with the provisions of EMTALA, every individual who presents to the emergency department for any medical condition or complaint should first receive an appropriate medical screening exam by a properly trained and credentialed qualified medical professional. This exam is not a triage exam but is explicitly tailored to address the particular signs and symptoms of the patient. An appropriate medical screening exam uses all the available resources of the emergency department, which are appropriate to determine whether an emergency medical condition exists. After an appropriate medical screening exam is conducted, it is within the bounds of professional medical judgment and discretion for an appropriately licensed physician or other health care practitioner to provide or to withhold narcotic or other methods of pain control in a particular patient depending on the specific clinical circumstances. It is also left to the judgment of the provider as to how best to give specific patient-centered education, including handouts, policies, and institutional protocols. But again, it is emphasized that patient education should take place after a patient focused medical screening exam is completed and not by posting general policies and procedures or displaying such materials in the waiting area.