As part of the 2009 Inpatient IPPS Final Rule (the Final Rule), the Centers for Medicare and Medicaid Services (CMS) adopted changes to the regulations governing the Emergency Medical Treatment and Labor Act of 1986 (EMTALA). The changes will be effective October 1, 2008. The following is a brief summary of the Final Rule’s EMTALA provisions.
CMS Withdraws Proposed Rule Applying EMTALA Requirements to Hospital Inpatients
In the proposed rule, CMS expressed its intent to revise EMTALA regulations to “clarify” that, 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, the “receiving hospital” has an EMTALA obligation to accept the individual so long as the transfer was appropriate and the receiving hospital has the capacity to treat the individual.
Numerous comments to that proposed rule were submitted, generally expressing the concerns of the provider community that the change would (i) have a negative impact on patient care, (ii) increase the number of inappropriate transfers and (iii) burden the emergency medical system. In the Final Rule, CMS agreed that implementing that proposed rule would have significant consequences for both admitting and receiving hospitals, and therefore withdrew that proposed rule.
In response to the comments, CMS confirmed in the Final Rule that when an individual with an unstable emergency medical condition is admitted in good faith to a hospital as an inpatient, the EMTALA obligation for that admitting hospital ends. Moreover, CMS indicated that, even if the patient’s emergency medical condition remains unstabilized and the patient later requires transfer to a higher level of care at another hospital, the receiving hospital does not have an EMTALA obligation to accept the transfer (though it may have such an obligation under other applicable laws).
CMS Deletes Language Requiring that an On-Call List Must Be Maintained “in a Manner that Best Meets the Needs of Hospital Patients”
CMS also removed language stating that a hospital is required to maintain an on-call list “in a manner that best meets the needs of the hospital’s patients.” CMS explained that this change was made in order to reduce provider confusion regarding the standard for maintaining an on-call list. CMS noted that the existing language stating that an on-call list must be maintained “in accordance with the resources available to the hospital” provides sufficient guidance that a hospital is obligated to provide on-call services based on the resources it actually has available at the time, including the availability of specialists.
In the Final Rule, CMS noted that “physicians should not perceive the change in the text of the regulation as confirmation that they should limit their on-call availability,” apparently acknowledging CMS’s concern that a physician who wanted to avoid on-call obligations (or a hospital that did not want to apply such obligations uniformly) could attempt to excuse non-compliance by claiming that the physician was not “available” as a resource.
CMS also moved the regulatory location of the regulation that requires hospitals to maintain a list of on-call physicians from the EMTALA regulations to separate regulations that pertain to the implementation of provider agreements, with the stated purpose of more closely aligning the rule with the section of the Social Security Act under which it was promulgated.
CMS Approves Community Call Arrangements
CMS adopted the proposed rule that would permit hospitals to meet the EMTALA requirement for maintaining an on-call physician list by participating in a formalized community Call Plan among hospitals, and retained all but one of the proposed Call Plan elements described in the proposed rule. CMS omitted from the Final Rule the requirement that hospitals demonstrate evidence that they have analyzed the specialty on-call needs of the community to be served by the Call Plan, concluding that the proposed requirement would be duplicative of the existing requirement that a hospital must annually assess the Call Plan.
Comments to the proposed rule also raised concerns regarding the potential antitrust and HIPAA implications of Call Plans. In both instances, CMS deferred to the U.S. Department of Justice and Office of Civil Rights, respectively, regarding these issues. However, the comments reflect that some providers have compliance concerns about participating in Call Plans that, if left unresolved, may deter their participation.
Additional comments to the proposed rule asked whether CMS anticipates that physicians or hospitals are to be compensated for their services related to participation in a Call Plan. CMS noted in the Final Rule that financial arrangements between an on-call physician and hospital are solely between those two parties and do not involve CMS. CMS further noted that financial agreements may, but need not, be a part of a Call Plan if hospitals choose to include such information, essentially leaving the issue of compensation to the discretion of the providers.
The elements of a Call Plan, as described in the Final Rule, are to include the following:
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 Emergency Medical Services system protocol formally includes information on “community on-call” arrangements
A statement specifying that, even if an individual arrives at a 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
Continued compliance by participating hospitals with EMTALA regulations governing appropriate transfers
Reassessment of the Call Plan on an annual basis by participating hospitals
As in the proposed rule, the Final Rule notes that hospitals participating in a Call Plan must have written policies and procedures in place to cover situations in which an on-call physician is unable to respond because of situations beyond his or her control (which is a pre-existing requirement under EMTALA). Furthermore, notwithstanding the existence of a Call Plan assigning on-call responsibilities to a particular hospital on a particular day, the Final Rule reiterates that participating hospitals still have an obligation to perform medical screening examinations on all individuals who present to the hospital seeking treatment and to provide for an appropriate transfer as needed.
In light of the Final Rule, hospitals should assess whether a Call Plan would be helpful to their communities and consider coordination of such efforts with other community hospitals.