The Centers for Medicare and Medicaid Services (CMS) has recently proposed changes relating to the Emergency Medical Treatment and Labor Act of 1986 (EMTALA), and, in particular, requirements to hospital inpatients and physician “on-call” obligations. The changes, proposed in the April 30, 2008, edition of the Federal Register, would take effect in October 2008.
Applicability of EMTALA Requirements to Hospital Inpatients
In its 2003 final rule, CMS took the position that a hospital has satisfied its EMTALA obligations when a patient with an unstable emergency medical condition is admitted in good faith as an inpatient. However, the 2003 final rule did not address whether EMTALA’s “specialized care” requirements applied to inpatients. The “specialized care” requirements provide that hospitals with specialized capabilities or facilities (including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units or—with respect to rural areas—regional referral centers) may not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. CMS has not further defined what “hospitals with specialized capabilities or facilities” means.
CMS based certain of its proposed changes on the recommendations of the EMTALA Technical Advisory Group (TAG), a group established by CMS composed of industry representatives tasked with reviewing EMTALA regulations and providing advice and recommendations concerning the regulations and their application to hospitals and physicians. As noted in the Federal Register, the changes are intended to “clarify” that even after inpatient admission at one hospital, EMTALA obligations are not extinguished for all hospitals. Specifically, where an unstable patient is admitted at one hospital (the “admitting hospital”) and is subsequently transferred in an unstable condition via an appropriate transfer to a facility with specialized capabilities, that the “receiving hospital” has an EMTALA obligation to accept the individual so long as the receiving hospital has the capacity to treat the individual.
According to CMS, the proposed clarifications would extend EMTALA protections “to those who need it most” until such time as individuals with emergency medical conditions are admitted as inpatients and covered by the hospital Conditions of Participation.
CMS acknowledges provider concerns that the proposed policy clarification will increase the number of transfers, and notes that such an outcome is not the intent of the clarification, reiterating its position that “an individual with an emergency medical condition should be transferred only when the capabilities of the admitting hospital have been exceeded.” CMS acknowledges as well that it is not its intention to encourage “patient dumping” to specialized care hospitals in this interpretation of the antidumping statute. CMS, in making this point, implicitly acknowledged the tension between two of its goals: preventing patient dumping and encouraging top-down, pre-planned regional coordination of care delivery.
CMS does not address whether patients who are admitted for elective diagnosis or treatment and subsequently become unstable are to be treated similarly, but prior guidance and the recommendations of the TAG indicate that EMTALA would likely not apply to this universe of inpatients. Also, CMS has not proposed changes to the reporting obligations under EMTALA (but if hospitals are experiencing difficulty when transferring patients to a facility which they believe has specialized capabilities, or receiving hospitals receive transfers they believe are lateral transfers that do not require “specialized” care, possible voluntary reporting may increase).
CMS is seeking public comment on whether this “clarified” EMTALA obligation should apply in the case of individuals who have a “period of stability” during their stay at the admitting hospital and are later found to have an unstable emergency medical condition that is beyond the capabilities of the admitting hospital (thereby requiring transfer). Comments will be accepted through June 13, 2008.
Community Call Arrangements
CMS has also proposed that hospitals be permitted to meet the EMTALA requirement for maintaining an on-call physician list by participating in a formalized community call plan (a “Call Plan”) among hospitals.
Currently, EMTALA requires a hospital to 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. The hospital must have written policies and procedures in place that address what is to be done when 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.
As described by CMS, a Call Plan would permit a specific hospital in a region to act as the designated on-call facility for a specific time period, or for a specific service, or both.
CMS is soliciting public comments on the minimum requirements for a Call Plan, which has been proposed to include the following elements:
- Clear delineation of on-call coverage responsibilities (when each hospital is responsible for on-call coverage)
- Definition of the specific geographic area to which the Call Plan applies
- Signatures from the appropriate representatives of each hospital participating in the plan
- Requirements that any local and regional EMS system protocol formally includes information on “community on-call” arrangements
- A statement specifying that even if an individual arrives at the hospital that is not designated as the on-call hospital, that hospital still has an EMTALA obligation to provide a medical screening examination and stabilizing treatment within its capability
- Analysis by the participating hospitals of the specialty on-call needs of the community for which the plan is effective
- Continued compliance by participating hospitals with EMTALA regulations governing appropriate transfers
- Reassessment of the Call Plan on an annual basis by participating hospitals
If an individual presents to a hospital other than the designated on-call hospital and is determined to have an unstabilized emergency medical condition requiring the services of an on-call specialist, the individual would be transferred to the designated on-call hospital in accordance with the Call Plan.
CMS specifically notes that hospitals participating in a Call Plan must also have written policies and procedures in place to respond to situations in which the on-call physician is unable to respond because of situations beyond his or her control (an already-existing requirement under EMTALA). Further, notwithstanding the existence of a Call Plan assigning on-call responsibilities to a particular hospital on a particular day, participating hospitals still have an obligation to perform medical screening examinations on individuals who present to the hospital seeking treatment, and to provide for an appropriate transfer as needed.
CMS has also proposed a technical change moving the requirement for a hospital to maintain an on-call list from the EMTALA regulations to the regulations setting forth the requirements for hospital provider agreements, and replace the current language in that section with the language formerly included in the EMTALA regulations.
The proposed changes also include revisions to the EMTALA regulations to make them consistent with the Pandemic and All-Hazards Preparedness Act regarding the non-applicability of EMTALA provisions in an emergency area during an emergency period.
In light of these proposed rule changes, hospitals should take the following action:
- Consider submitting comments to CMS on the proposed changes
- Assess what “specialized units” and “capabilities” the hospital has and those of area hospitals
- Consider revisions to transfer policies to apply to “specialized units” (e.g., process on how to facilitate transfers from inpatient units or accept transfers to its specialized units) to demonstrate EMTALA compliance
- Assess whether a Call Plan would be helpful to its community and begin coordination of such efforts with other community hospitals