CMS Announces Rule on EMTALA

By Carole L. Stewart, J.D., M.H.A., L.L.M. candidate

On August 29, 2003, the Centers for Medicare and Medicaid Services (CMS) issued a Rule clarifying hospitals’ obligations under the Emergency Medical Treatment and Active Labor Act (EMTALA), stating, “The revisions . . . are designed to ensure that people will receive appropriate screening and emergency treatment, regardless of their ability to pay, while removing barriers to the efficient operation of hospital emergency departments.”  CMS New Release, August 29, 2003, accessible at http://cms.hhs.gov/media/press/release.asp?Counter837.

EMTALA, which applies to all hospitals participating in the Medicare program that provide emergency services, protects all patients who present to those hospitals and requires hospitals to provide “an appropriate medical screening examination” to any person who comes to the hospital emergency department and requests treatment or an examination for a medical condition.  42 U.S.C.A. § 1395dd. If the screening examination reveals an emergency medical condition, the hospital must also provide either necessary stabilizing treatment or an appropriate transfer to another medical facility.  Id.  Hospitals that violate EMTALA risk termination of participation in the Medicare program and civil monetary penalties of $50,000 per violation.  Id.  EMTALA grants individuals harmed by an EMTALA violation and hospitals to which patients were improperly transferred a “private right of action” against the violating hospital.  Id.

Published in the Federal Register on September 9, 2003 and effective on November 10, 2003, the Rule clarifies a number of key provisions of EMTALA.  68 F.R. 53221-53264, located at http://www.gpoaccess.gov/fr/index.html.  The Rule expands the definition of “dedicated emergency department” to include “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:  (1) it is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; (2) 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 (3) during the calendar year immediately preceding the calendar year in which a determination . . . is being made, based on a representative sample of patient visits, that occurred during that calendar year, it provided at least one-third of all its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.”  68 F.R. 53234, accessible at http://www.gpoaccess.gov/fr/index.html.

The revised Rule further clarifies that EMTALA does not apply to: (1) patients who present to “off-campus outpatient clinics that do not routinely provide emergency services;” (2) patients that have already received scheduled non-emergency outpatient services at a hospital’s main campus; or (3) patients that have been medically screened through the emergency department and admitted, provided that the hospital did not admit the patient in order to avoid other EMTALA obligations.  CMS News Release, August 29, 2003, located at http://cms.hhs.gov/media/press/release.asp?Counter837.  The Rule also permits hospital-owned ambulances to comply with local community standards for emergency medical response and allows off-campus hospital departments to care for emergency patients without moving the patients to the hospital’s main campus.  Id.

Most controversially, however, the revised Rule grants hospitals the discretion to develop their own “on call” lists in a manner which “best meets the needs of their communities,” and allows physicians, including specialists, to simultaneously be “on call” at multiple hospitals and to schedule “elective” surgeries during time periods when they are “on call.”  Id.  According to CMS, hospital policies may include a provision for “back up” on-call physicians in the event an on-call physician may not respond.  Id.  CMS Program Memorandum on Simultaneous On-Call Responsibilities, June 13, 2002, accessible at http://www.uplaw.net/061302.htm.

Not surprisingly, the new Rule has been met with both praise and concern.  Hospital and physician groups generally have expressed support for the new Rule, which they argue will reduce administrative costs and limit liability.  “New Rules for Hospitals Raise Some Concerns,” San Diego Tribune, September 19, 2003, accessible at http://www6.lexisnexis.com/wpublisher/EndUser?Action=UserDisplayFullDocument&org.  However, patient groups criticize the new Rule arguing that the resulting lack of “on call” coverage will harm patients due to the unavailability of specialist physicians.  Id.  Some Emergency Medical Department Directors are concerned for another reason.  According to Dr. David Guss, Director of the Emergency Department at the University of California San Diego Medical Center, “If the other hospitals don’t have everyone on call, they default to those hospitals who do [and] it increases the potential burden” for [those hospitals].  Id.  Thus, some believe that EMTALA, which is often referred to as the “anti patient dumping statute,” will, in fact, become just that, and patients with emergency conditions in need of specialist care will flood area hospitals with the most specialist physicians on call.

While CMS’s position on the on-call issue appears somewhat justified due to hospitals’ complaints of an overwhelming lack of specialists available to participate in on-call lists and the increasing financial burden to some hospitals to obtain on-call physicians, the Rule appears to have gone too far in allowing physicians to simultaneously be on call at multiple hospitals and to schedule “elective” surgeries during times in which they are on call.  Certainly, such an arrangement will compromise good patient care.  Most importantly, CMS’s new Rule does little to alleviate the cause of hospitals’ inability to retain enough on-call physicians: (1) the lack of physicians in certain geographical areas; and (2) physicians’ concerns about medical malpractice liability.  The Department of Health and Human Services should more aggressively address the origin of hospitals’ problems locating physicians for on-call coverage, rather than ignoring the origins of the problem and addressing only the symptoms.  Only time will tell if the new Rule will result in lower administrative costs for providers without a serious compromise in patient care.

10/09/03