Regulations and May 2004 Interpretive Guidelines Clarify Hospital EMTALA Obligations

The Centers for Medicare & Medicaid Services (“CMS”) revised regulations implementing the Emergency Medical Treatment and Active Labor Act, (“EMTALA” or “Act”). EMTALA requires Medicare participating hospitals to provide every individual seeking emergency treatment with a medical screening examination to determine if any emergency condition or active labor exists, and, if necessary, administer stabilizing treatment or appropriate transfer.

EMTALA, dubbed the “anti-dumping statute” in the health care community, is purported to prevent disparate treatment of individuals based upon their inability to pay. EMTALA was enacted to ensure that every individual who presented to a hospital in need of emergency care would be treated sufficiently to stabilize the emergency condition, regardless of the individual’s ability to pay. When Medicare certification surveys began in the summer of 2004, the surveyors look for compliance with EMTALA in several regards, two of which are the required maintenance of an on-call list, and ensuring adequate coverage for emergency cases presenting to hospitals for care.

It is important for hospitals to understand what qualifies as a “dedicated emergency department,” as EMTALA requirements apply only to those EDs. In response to commenters, CMS revised the definition of “dedicated emergency department” and clarified that it does not apply to off-campus departments, unless such departments hold themselves out as an emergency department that any individual would regard as a location to receive emergency care. Hospitals must have appropriate protocols in place for individuals who seek emergency care at off-campus non-emergency facilities. The proposed standard in ‘482.12(f)(3) is in place for that now.

EMTALA does not apply to admitted emergency patients; as such patients are already protected under the CoPs. EMTALA only applies to provider-based departments on the hospital’s main campus, not to provider based entities. EMTALA applies only to an ED that: (1) are licensed as emergency rooms or emergency departments by the State in which located; (2) are held out to the public (by name, posted signs, advertising or other means) as places that provide care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or (3) based on a representative sampling of patient visits, provided at least one-third of all of its outpatient visits for the examination or treatment of emergency medical conditions during the calendar year immediately preceding the calendar year in which a determination under ‘482.24 is made. See Comments to Final Rule, 68 FR 53222 (Sept. 9, 2003).

The Final Rule issued in September, and then ‘revised’ in November of 2003 clarified many issues for hospitals and other emergency departments. The Interpretive Guidelines issued in May of 2004 provide additional guidance for hospitals to simplify and demystify compliance with EMTALA. The Interpretive Guidelines specify standards for hospitals to implement individualized compliance programs.
The regulations require that once the hospital provides an appropriate medical screening, in the event an emergency condition is found, the hospital must then stabilize the patient or execute an appropriate transfer. Hospitals are to develop and implement procedures to provide emergency care to individuals who present in hospital departments other than dedicated emergency department locations on the hospital campus.

The Interpretive Guidelines address:

Necessity of adequate medical screening. A hospital has met its obligation provided that each individual presenting with a medical condition receives an adequate medical screening, meaning a screening sufficient to discern whether there exists an emergency condition requiring stabilization or transfer. Although the preamble to the Final Rule responds to comments regarding parameters for an adequate medical screening with an explanation that an individual who declares that he did not come for treatment of an emergency condition may be ‘adequately screened’ through questioning by a qualified medical professional (QMP), it appears inconsistent with CMS’ statement that a complaint for dumping may be filed by an individual who suffered from an emergency condition, but presented for other non-emergency treatment, unaware of the emergency condition. Thus the guidance that a brief interview with a QMP will suffice for individuals who presented to a dedicated ED denying an emergency condition offers little comfort since the insufficiency of the QMP interview cannot be known until an emergency condition manifests itself. The Interpretive Guidelines also note that triage is not the same as performing an emergency medical screening, and cannot serve as a substitute.

Narrower Definition of Emergency Department (ED) to which EMTALA applies – The dedicated ED need not qualify as a hospital department as defined under 42 C.F.R. ‘413.65. Hospital with an ED is altered in the definitions to hospital with a dedicated ED. Hospitals have an EMTALA obligation with respect to any individual who presents to a dedicated ED, regardless of whether the individual complains of an emergency condition, a screening must be performed, but such screening may consist only of questioning the individual by a QMP.

Definition of patient is being revised under ‘489.24(b) to indicate that it does not apply to outpatients who have already begun receiving outpatient treatment. Such patients are already covered by the Medicare CoPs. Individuals who present to provider-based off-campus departments that are not emergency dedicated are also covered by the hospital CoPs.

Physician On-call coverage

Any hospital with a dedicated emergency department must have an on-call list. A review of the comments to the regulations reveals numerous comments regarding the lack of specific or objective standards for physician on-call requirements. Yet CMS did not revise the proposed regulations to provide a framework to create greater accountability.

The Interpretive Guidelines issued on May 13, 2004, provide additional detail as to the on-call coverage requirements, including physician responsibility for responding to call. Treating emergency physicians have the discretion to send an individual needing services of an on-call physician to the physician’s office if it is part of the hospital-owned facility that shares the same Medicare provider number; however, an on-call physician cannot typically direct patients needing emergency care to be transferred to another hospital to receive the physician’s treatment. Such a request to have a patient leave a hospital system for another without the specialty physician’s assessment of the patient may constitute an EMTALA violation. Physicians who violate EMTALA may be subject to civil monetary penalties up to $50,000.

Physicians are only penalized under EMTALA for refusing to appear for on-call duty when they previously agreed to be placed on the on-call list. The maintenance of the list rests solely with the hospital, and, ultimately, only the hospital is accountable under EMTALA. Although it is true that a hospital has some enforcement ability through revocation or suspension of physician privileges, a hospital with limited resources is unlikely to further reduce its access to physicians. CMS explained that the reason for its reluctance to institute mandatory minimum call requirements was the “wide variation in the size, staffing, and capabilities of the institutions that participate in Medicare. As hospitals, we do not believe it is feasible for us to mandate any particular minimum level of on-call coverage.” See Final Rule, September 9, 2003, Preamble, regarding Hospital Responsibility for On-Call Coverage. The onus is shouldered by the hospitals alone, and the regulations have now proclaimed that the hospital has the latitude to determine what level of on-call coverage must be maintained. Given this lack of prescription, the patient population is likely to suffer as community standards devolve to the physicians’ willingness for on-call duty.

Leaving the levels of required on-call coverage to individual hospitals and their medical staffs to determine impairs CMS’ ability to ensure adequate patient care in emergency situations. The hospital has the responsibility to ensure that the physicians on the call list have privileges to furnish care as required by the call lists. In a stated effort to preserve flexibility for the hospital’s implementation, CMS has not established requirements for on-call coverage. Section 489.24(j) now states that the on-call list must be maintained in a manner that best meets the needs of the hospital’s patients who are receiving services required under EMTALA, in accordance with the capability of the hospital, including the availability of on-call physicians.

The Interpretive Guidelines instruct surveyors to make case-by-case determinations as to whether a violation of on-call coverage has been made, in light of the circumstances particular to the hospital and physician situation. Ultimately, the policies and procedures that a hospital adopts to meet its EMTALA obligation are at the hospital’s discretion, as long as they meet the needs of the individuals who present for emergency care, taking into account the capability of the hospital and the availability of on-call physicians.
Physicians are permitted to take simultaneous calls at more than one hospital under EMTALA, but the hospitals are required to have policies and procedures in place to ensure that the individuals may be evaluated when the on-call physician cannot respond due to simultaneous calls, including back up on-call physicians or appropriate transfer. An on-call physician is not required to assess an individual in person, and may direct a nurse practitioner, physician’s assistant, or other health care personnel to whom the physician may delegate within the proper scope of authority, to assess the individual. However, the on-call physician remains responsible for the care of that individual. On-call physicians may also utilize telemedicine services for individuals in need of evaluation or treatment who are located in a rural health professional shortage area, (“HPSA”), or in a county outside a metropolitan statistical area (“MSA”). Thus, rural hospitals may be permitted additional flexibility for meeting EMTALA call requirements.

Physicians are not permitted to exercise discretion in whether to take call based on a prior patient relationship with the individual presenting for evaluation. Therefore, a physician who does not appear on a hospital’s call list cannot take call selectively for specific prior patients without risking an EMTALA violation. Likewise, a hospital cannot condone physicians taking selective call when the hospital’s coverage for that service is not adequate, as that would encourage disparate treatment of patients, and undermine EMTALA’s purpose.

Is EMTALA Contributing to the Disparity of Care?

The efficacy of CMS’ regulations is debilitated by the presumption that hospitals and physicians are on equal footing with respect to fulfilling on-call physician requirements, despite the fact that the physicians suffer no repercussions for deciding against agreeing to on-call status.

One thing that hospitals can do is revise their Medical Staff Bylaws to provide for specific call requirements, and, in that manner, ensure the necessary on-call coverage necessary. However, a hospital’s ability to dictate conditions for membership of its medical staff decreases in rural areas where hospitals may need the physicians more than the physicians need them. Quality medical practitioners are at a premium in Pennsylvania, and are more treasured such that the hospitals are not in an equal bargaining position.

With the persistence of the medical malpractice crisis, on-call coverage presents another obstacle to physicians. Most Medical Staff Bylaws contain requirements that physicians abide by all federal and state laws to which the hospital is subject, and participate in compliance measures, including EMTALA. Hospitals are compelled to implement policies and procedures that fulfill the on-call coverage requirements, without the ability to show the physicians a federal mandate for on-call coverage. This ‘flexibility’ afforded by the Final Rule, and as described through the Interpretive Guidelines, has the potential for decreasing the availability of qualified on-call physicians.

Physicians are not required to comply with EMTALA unless they have agreed to accept calls, and are thus listed on the on-call list. Ultimately, hospitals have the onus of EMTALA compliance, and hospitals are without authority to compel physicians to comply other than through their Medical Staff Bylaws. Hospitals cannot control whether they can adequately provide EMTALA call coverage.

Although the Final Rule and Interpretive Guidelines explain that the determinations of adequacy of on-call coverage will be decided on a case-by-case basis, determining what on-call coverage is required must be “within reason” depending on a number of factors. These factors include the availability of on-call physicians, the number of physicians on staff, the demands on these physicians, the number of visits requiring call physicians, and other subjective determinations. By leaving the determination of the necessary on-call coverage to each hospital to determine in conjunction with its medical staff, forces hospitals to accept deficient on-call coverage as the best it can obtain from its physicians. This leads to a second, and perhaps greater problem – a hospital’s inability to provide sufficient on-call coverage without means of ensuring minimum standards.

In lieu of minimum standards, CMS issued a flexible approach that allows the circumstances of each hospital to dictate the on-call coverage necessary to deal with their potential patient population. Under this approach, the hospital determines what on-call coverage to provide. Patient care is likely to be the victim in this scenario, and disparity is likely to increase, if not along income lines, then along geographic lines where rural hospitals which bear the greatest burden in physician recruitment and retention, now bear the burden of greater risk in providing on-call coverage for which physicians have no legal responsibility. EMTALA’s lack of on-call coverage requirements, and failure to impose legal obligations upon physicians is likely to result in lesser quality of care being administered in rural areas or other areas having difficulty with physician retention and medical staff membership.

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