CMS Publishes Final Rule to EMTALA
The Centers for Medicare and Medicaid Services (CMS) published a final rule amending and adding regulations under the U.S. Emergency Medical Treatment and Active Labor Act (EMTALA) in the Federal Register on September 9, 2002. The final rule clarifies existing requirements and reduces certain burdens imposed on hospitals with emergency departments under the EMTALA regulations. The final rule is effective November 10, 2003.
EMTALA Applies to Dedicated Emergency Departments
EMTALA provides that if an individual “comes to the emergency department” of a hospital and the individual makes a request, or a request is made on that individual’s behalf, for examination or treatment of a medical condition, the hospital must provide an appropriate medical screening examination within the capabilities of the hospital. If the hospital determines that the individual has an emergency medical condition, the hospital is further obligated to provide either necessary stabilizing treatment or an appropriate transfer. The current rule extends EMTALA to every part of a hospital, including any department located on or off the main campus of the hospital.
The final rule materially alters a hospital’s obligations under EMTALA by limiting its application to “dedicated emergency departments,” defined as any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that meets at least one of the following requirements: it is licensed by the state in which it is located as an emergency room or emergency department; it is held out to the public (by name, posted signs, advertising or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or during the calendar year immediately preceding the calendar year in which a determination that an EMTALA violation is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. It is likely that “dedicated emergency department” will include most labor and delivery departments, psychiatric departments and urgent care centers, as such locations commonly meet one of the three prongs of the revised definition.
Off-campus departments of hospitals are not obligated to comply with any EMTALA obligations unless the location meets the definition of a dedicated emergency department. However, the final rule includes a new requirement that the governing body of a hospital assure that, with respect to off-campus departments that are not dedicated emergency departments, the medical staff has written policies and procedures in effect with respect to such departments for the appraisal of emergencies and referral when appropriate. CMS notes in the preamble that it would be appropriate for such departments to call emergency medical service and to furnish whatever assistance it can while awaiting emergency service personnel.
In the preamble to the final rule, CMS notes that individuals can “come to the emergency department” in one of two ways. They may either present directly to the dedicated emergency department, as described above, or present elsewhere on hospital property and request examination and treatment for an emergency medical condition. This reiterates CMS’s long-standing position that hospitals are not exempt from EMTALA requirements because a person entered the “wrong” door. The definition of hospital property is narrowed somewhat in the final rule. While it still includes parking lots, sidewalks, and driveways, hospital property now excludes areas not part of the hospital (even if owned by the hospital), such as physician offices, skilled nursing facilities, or non-clinical areas (e.g., restaurants and shops).
Application of EMTALA to Non-Patients
The final rule limits the application of EMTALA to an individual who is not a patient. A “patient” is defined as: an individual who has begun to receive outpatient services as part of an encounter, other than an encounter that the hospital is obligated to provide services for under EMTALA, or an individual who has been admitted as an inpatient. CMS states in the preamble to the final rule that because such individuals are already patients of the hospital and, therefore, have a previously established relationship with the hospital, CMS believes it is inappropriate that they be considered to have come to the hospital for purposes of EMTALA. Instead, such individuals would be entitled to the more general protections afforded patients under the Medicare hospital conditions of participation.
EMTALA does not apply to an outpatient who has begun an encounter. The final rule provides that an individual seeking outpatient services who has begun an encounter is a “patient” of the hospital who is not covered under EMTALA. An encounter means direct personal contact between a patient and a physician, or other person who is authorized by state licensure and, if applicable, by hospital medical staff bylaws, to order or furnish hospital services for diagnosis or treatment of the patient. Examples of outpatient encounters include a physical therapy session in a hospital outpatient department, or a CT scan ordered by an individual’s private physician and provided in a hospital outpatient department.
EMTALA does not apply to an inpatient admitted in good faith. The final rule provides that if a hospital has screened an individual under EMTALA, found the individual to have an emergency medical condition and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its EMTALA obligations with respect to that individual. In addition, EMTALA does not apply to an inpatient who was admitted for elective diagnosis or treatment. EMTALA would not apply even if an inpatient is not medically stable at the time of admission or if a medically stable inpatient later develops an emergency medical condition.
Application of EMTALA to Individuals Requesting Non-Emergency Services
The final rule states that if an individual comes to a hospital’s dedicated emergency department and a request is made for examination or treatment for a medical condition, but the nature of the request makes it clear that the medical condition is not of an emergency nature, the hospital is only required to perform such screening as would be appropriate for any individual presenting in that manner and as would be necessary to determine that the individual does not have an emergency medical condition. As finalized, CMS has clarified a hospital’s right to direct patients to non-emergency locations for care once a qualified medical person has determined that no emergency medical condition exists.
Application of EMTALA to Individuals in a Hospital-Owned Ambulance
An individual is currently considered to have “come to the emergency department” if the individual is in a hospital-owned ambulance, a definition that has restricted hospitals from taking patients to the closest or most appropriate hospital. Under the final rule, this provision does not apply if the ambulance is operating under community-wide Emergency Medical Service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance, for example, to the nearest hospital, or if the ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance.
EMTALA and Inquiring About Insurance
The final rule incorporates into law existing policy set forth in a Special Advisory Bulletin published jointly by CMS and the Office of Inspector General on November 10, 1999. Specifically, the final rule prohibits a hospital from seeking authorization (for payment, not treatment) from the individual’s insurance company for screening or stabilizing services until after the hospital has provided the appropriate screening services required under EMTALA and has initiated any further medical examination and treatment that may be required to stabilize the patient’s emergency medical condition. The final rule clarifies, however, that a physician or non-physician practitioner is not precluded from contacting the individual’s physician at any time to seek advice regarding the individuals medical history and needs that may be relevant to the medical treatment and screening of the individual, so long as the inquiry does not delay services required under EMTALA. The final rule also incorporates into law existing policy set forth in CMS’s Interpretive Guidelines (published in 1998 and used by surveyors when evaluating hospital compliance with EMTALA). That is hospitals may follow reasonable registration processes for individual’s for whom examination or treatment is required under EMTALA. This may include asking whether an individual is insured and, if so, what that insurance is, as long as the inquiry does not delay screening or treatment. The final rule expressly states, however, that reasonable registration processes may not unduly discourage individuals from remaining for further evaluation, such as by emphasizing the patient’s financial responsibility for noncovered services.
EMTALA and On-Call Requirements
EMTALA currently requires hospitals to keep a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition. No guidance is given in the current regulations as to when such coverage must be available or what a hospital must do if there is no on-call physician in a given specialty or an on-call physician is not available. The final rule incorporates into law existing policy set forth in CMS’s Interpretive Guidelines and provides additional guidance regarding on-call responsibilities. The final rule provides that each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of its patients who are receiving services required under EMTALA, in accordance with the resources available to the hospital, including the availability of on-call physicians; and the hospital must have written polices and procedures in place to respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician’s control and to provide that emergency services are available to meet the needs of patients with emergency medical conditions if the hospital permits on-call physicians to schedule elective surgery during the time that they are on call or permits physicians to have simultaneous on-call duties.
Forthcoming Policy Guidance
CMS noted several areas that it did not address in the final rule but expects to address in further policy guidance or in updated interpretive guidelines for surveyors including the following: communication with Medicare+ Choice organizations concerning post-stabilization care for enrollees; non-emergency issues regarding psychiatric patients; and guidance regarding determination of a “representative sample” of patient visits for purposes of determining whether a department is a dedicated emergency department under the third prong of the new definition. In addition, CMS added a provision to the final rule exempting hospitals from sanctions for inappropriate transfers during a national emergency, and indicated that it would provide further instructions to hospitals at the time of any such national emergency.
Hospitals would be well advised to review their existing EMTALA policies and procedures, and Medical Staff Bylaws and Rules and Regulations, and to update them, as necessary to comply with the final rule.