The Centers for Medicare and Medicaid Services (CMS) recently published final rules regarding the Emergency Medical Treatment and Active Labor Act (EMTALA) which can be found in the September 9, 2003 issue of the Federal Register and can be accessed at www.gopaccess.gov. The latest revisions to the Act became effective November 10, 2003. The revisions to EMTALA were done in response to public comments on a May 9, 2002 proposed rule that both reiterated the agency’s interpretations under EMTALA and proposed clarifying changes related to the implementation of the EMTALA provisions . Among other things, the revisions expand the definition of the "hospital emergency department" and additionally apply the EMTALA rules to hospital outpatients and to freestanding outpatient centers or urgent care clinics if they hold themselves out as providing "emergency services". The latest revisions to EMTALA further detail the obligations of physicians who serve on hospital staff on-call lists and clarify the responsibilities of hospital-owned ambulances. It is important for hospital administrators, employees and physicians to know and understand the changes to EMTALA in order to remain compliant and avoid sanctions and penalties imposed by EMTALA violations.
What is EMTALA?
EMTALA is a part of the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and can be found in Section 1867(a) of the Social Security Act. It is included as part of the section of the U.S. Code which governs Medicare. The COBRA law was passed in 1986 with a significant portion written to address the problem of "patient dumping" or denial of care or transfer of patients based solely on the inability to pay for the care they were seeking. Although not strictly written as an "anti-dumping" statute, the implementation of COBRA has changed the standard of practice for hospitals and physicians. In 1988 and 1987, revisions to the statute added more stringent provisions in regard to on-call physicians in general and to the practice of obstetrics specifically. EMTALA was the portion of COBRA that addressed the issues surrounding the screening of patients and defined "appropriate transfers".
Over the years, additional revisions have been made to the statute addressing patient rights, restraints and the use of seclusion including placing significant restrictions on use of physical and chemical restraints. The 1999 revisions to the Act placed heavy restrictions on these methods of control of patient behavior and required physician face-to-face evaluations, prohibited PRN (as needed) orders for restraints (including drugs for management purposes), and set time limits on orders given regarding restraint methods. These revisions have had significant impact on the care rendered to the psychiatric patient in the emergency room.
In 2000, Health Care Financing Administration (HCFA) issued new regulations for the Out-patient Prospective Payment System (OPPS) that have greatly impacted the influence of EMTALA. Specifically, the OOPS required that hospitals provide emergency response capabilities, beyond calling 9-1-1, for accidents, injuries, or patient presentations on the hospital campus. The new regulations defined the "hospital campus" to include a zone of 250 yards surrounding the main hospital building.
EMTALA governs when and how a patient may be refused treatment or transferred from one hospital to another when the patient is in an unstable condition. It was not primarily designed exclusively as a non-discrimination statute. It would be best to characterize EMTALA as providing that no patient who presents with an emergency medical condition and who is unable to pay may be treated differently than patients who are covered by health insurance. Although not the entire scope of EMTALA, it is important to realize that it imposes affirmative obligations, which go well beyond non-discrimination.
The interpretation of this statute and its provisions as applied to a particular situation is subject to varying conclusions depending on the facts of the case and is also subject to interpretation by HCFA, the government agency responsible for investigation and partially responsible for the enforcement of this statute. The Officer of Inspector General (OIG) of the Department of Health and Human Services is responsible for other enforcement aspects of the law including the assessment of fines. HCFA may impose civil monetary fines up to $50,000 per violation and may terminate the Medicare provider status of hospitals or physicians as a penalty. In addition to enforcement by HCFA, hospitals but not physicians may be named as defendants in lawsuits brought by private citizens. Under EMTALA, the patient is entitled to those damages available for personal injury under the law of the state in which the hospital is located.
Who Must Comply?
EMTALA applies only to "participating hospitals" which are hospitals that have entered into "provider agreements" under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of the program. Therefore the EMTALA provisions apply to virtually every hospital, with the exception of Shriners Hospital for Crippled Children and many military hospitals. However it is important to note that the EMTALA provisions apply to all patients, not just Medicare patients.
Most of the provisions of EMTALA apply by their terms to hospitals only. Hospitals, of course, are not persons but rather institutions that can only operate through the people who work within its walls. A hospital is typically a corporation that can be sued and can have its Medicare provider agreement revoked by CMS. In truth, the requirements of EMTALA are imposed on the people who work within and on the behalf of the hospital, but it is the hospital who must bear the loss if it is found that they are in violation of the statute.
Although the hospital may shoulder the greatest burden of responsibility, it is the emergency room physician who will have to make the most difficult decisions that will be directly governed by EMTALA.
What are the responsibilities of hospitals under EMTALA?
Hospitals must provide an appropriate medical screening examination to individuals seeking emergency services to determine the presence or absence of an emergency medical condition. The hospital must stabilize the medical condition of the individual within the capabilities of the staff and facilities available prior to discharge or transfer of the patient to another healthcare facility.
The hospital must post conspicuous signs in the hospital emergency department stating the rights of individuals under EMTALA, and informing the public that the hospital participates in the Medicaid program. Prior to screening and stabilization, a hospital emergency department can follow normal registration processes, so long as it does not delay care of the patient or discourage the patient from remaining for evaluation. Some hospitals have chosen to conduct the registration process when the patient arrives but collect the insurance/payment information after care has been rendered.
The hospital must not transfer an unstable patient unless the patient requests the transfer or the transferring physician completes certification that the medical benefits for the transfer outweigh the risks the patient would face if they were to remain in that particular facility. It is important for this to be carefully documented in the medical record and for the patient to understand their rights and potentially the reasons for the transfer to another hospital.
Finally, the hospital is responsible for ensuring that all on-call physicians respond within a "reasonable period of time". The hospital is required to report and provide the name and address of any on-call physician who refuses to respond to a call or who fails to make a timely response, along with the transfer record of any patient transferred as a result of that refusal or lack of timely response.
What obligations apply to physicians?
Certain medical specialists are in short supply and under the EMTALA regulations before the revisions, were often required to be on-call 24 hours a day, 365 days a year as a condition of maintaining their hospital admitting privileges. As a result, many medical specialists began to limit their practice to one hospital to avoid the demanding on-call schedules. With the final rule allowing hospitals to design an on-call protocol that can address the needs of both the community and the physicians, the hope is that certain high-demand specialists will be made more readily available. Under the final rule, hospitals are being encouraged to draft policies on whether or not dual call is allowed for their on-call physician staff. These policies will need to address how the hospital will know when there is a dual call occurring. Hospitals will also need policies that address situations when their on-call physicians are engaged in another healthcare facility when they are called.
The on-call physicians who may be on-call at another hospital simultaneously, must not request that a patient be transferred to a second hospital for the physician’s convenience. It is important to note that on-call physicians responsible for examination, treatment or transfer of a patient is subject to potential civil fines of up to $50,000 per violation and possible exclusion from the Medicare program. Refer to Section 1395dd(d)(1)(C)C) for more information on the liability issues faced by the on-call physician.
On-call physicians must respond to the hospital in a timely manner when requested to attend to patients and complete a medical screening examination or provide stabilizing care in order to be compliant under the final rule of EMTALA. CMS has not set a specific rule for response time, but some HCFA reviewers have suggested thirty minutes or less. Hospitals are being advised that the on-call response time related to the EMTALA regulations should be addressed in their medical staff by-laws.
Physicians who are transferring patients to another healthcare facility must discuss the case with the receiving hospital’s authorized representative, in most cases this will be another physician, and obtain an agreement for the patient to be transferred. Again, it is important for the transferring physician to document the conversation, reasons for transfer and the name of the accepting physician at the other facility in the medical record in order to show compliance with the statute. Physicians at the receiving hospital are charged with the duty to accept patients transferred from other facilities and may not refuse any unstable transfer as long as their hospital has the capacity and the capabilities to provide the requested and required care.
The Latest Revisions
The latest revisions were meant to help clarify parts of the EMTALA statute that have, in the past, been difficult to interpret. The first revision deals with expanding the definition of the "emergency department". The provision now states: "any department or facility of the hospital, regardless of where it is located on or off the main hospital campus that (1) is licensed by the state and is located under applicable state law as an emergency room or emergency service; (2) is held out to the public (by name, posted signs, advertising or other means) that provides care for emergency medical conditions on an urgent basis requiring a previously scheduled appointment or (3) based on a representative sample of patient visits that occurred during the previous calendar year, the department provided 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." With regard to off-campus departments, hospitals will need to determine whether a department satisfies the one-third rule. For example, a hospital will need to apply the one-third rule analysis to a primary care clinic that does not hold itself out as providing urgent care, but nonetheless, does provide care on an urgent basis to individuals without appointments.
The latest revisions also clarify what the term "comes to the Emergency Department" and the "Prudent Layperson Standard" mean. "Comes to the Emergency Department" means that an individual presents themselves to a hospital’s main emergency department and requests examination or treatment for a medical condition; or presents somewhere on hospital property that is not a part of the main emergency department and requests examination and treatment for what may be an emergency medical condition. The "Prudent Layperson Standard" is what a prudent layperson observer would believe, based on the individual’s appearance and behavior, regarding whether or not that the individual needs examination or treatment for a medical condition.
Additionally, the final rules provide clarification of the "on-call" requirements that previously caused some confusion. Under the final rule, hospitals will be given the ability to develop on call lists in a way that best meets the needs of the communities that they serve. Physicians will be permitted to be on call at more than one hospital simultaneously to schedule elective surgery or other medical procedures during their on-call time at another facility. The final rule also clarifies that EMTALA does not apply after a patient has been screened and admitted for inpatient hospital services, unless the admission was completed in bad faith and as a means to avoid EMTALA requirements.
With regard to ambulances, the final rules provide that an individual has come to the emergency department if that individual is in a ground or air ambulance owned and operated by the hospital, even if that ambulance is not on hospital property. Under the final rules, an individual is also considered to have come to the emergency department if they are in an air or ground ambulance on hospital property even if the ambulance is not owned by the hospital. If an ambulance that is not owned by the hospital is off hospital property and contacts the hospital stating that they want to bring the individual in for emergency treatment, the hospital is allowed to direct the ambulance to another facility if it is in diversionary status. Diversionary status occurs when a hospital does not have the staff or the facilities to accept any additional emergency patients.
In light of the final rules of EMTALA which became effective on November 10, 2003, it is important that your hospital clients be aware that they need to revisit and update their policies and procedures in order to assure compliance with the new revisions of EMTALA. In particular, attention should be paid to current on call policies as the on-call responsibilities have undergone significant revisions under the new rules. While the new EMTALA regulations permit a number of changes, many institutions may choose not to implement all of the options now permissible at one time. It will be up to each individual hospital and the physicians who practice there, to examine the final rules of EMTALA in order to determine how best to respond to them and remain in compliance.
EMTALA -The Emergency Medical Treatment And Active Labor Act
COBRA - The Consolidated Omnibus Budget Reconciliation Act of 1986
HCFA - The Health Care Financing Administration-previously known as CMS
CMS - Centers for Medicare and Medicaid Services, a division of the Department of Health and Human Services. Responsible for the Medicare Program and the development and enforcement of regulations of EMTALA.
"transferring hospital" - A facility at which a patient is seen initially and whose personnel determine that transfer to another facility is warranted.
"receiving hospital" - A facility to which a patient is transferred; it may or may not constitute a "regional referral center" as that term is used elsewhere in the Medicare statute and (at one point)in EMTALA.
Ms. Schramm is an associate at Hinshaw & Culbertson’s Chicago office and concentrates her practice in the area of medical malpractice and general tort and insurance defense. Prior to joining Hinshaw & Culbertson, Ms. Schramm was a Legal Affairs Associate for Mercy Hospital and Medical Center . Ms. Schramm has her B.S. in Psychology and Nursing; her M.S. in Nursing; and her J.D. from the University of Florida.