• Emergency Medical Service Obligations Clarified in the Final EMTALA Rule
  • November 7, 2003
  • Law Firm: Briggs and Morgan, Professional Association - St. Paul Office
  • On August 29, 2003, the Centers for Medicare & Medicaid Services (CMS) issued a final rule clarifying the obligations imposed by the Emergency Medical Treatment and Active Labor Act (EMTALA or the "anti-dumping law") on Medicare-participating hospitals and critical access hospitals that have a dedicated emergency department. In general, the final rule reduces the EMTALA compliance burden on hospitals and physicians.

    On May 9, 2002, CMS published many proposed changes to EMTALA in conjunction with the annual update and payment rule for inpatient hospitals. At that time, CMS solicited public comments on the proposed EMTALA changes. Based on the timing, nature and volume (about 600 pieces) of correspondence CMS received, CMS delayed finalizing all but one EMTALA change. CMS determined that it needed more time to respond to the public comments and to finalize other EMTALA revisions.

    EMTALA requires hospitals to provide appropriate medical screening examinations to all persons who come to the hospital's dedicated emergency department and request examination or treatment for a medical condition. If the screening examination reveals the person has an emergency medical condition, the hospital must provide stabilizing treatment or appropriately transfer the person to another medical facility.

    EMTALA also is triggered when a person presents at a hospital location outside the dedicated emergency department and requests examination or treatment for an emergency medical condition. EMTALA is not triggered when a person presents for non-emergency treatment outside the dedicated emergency department.

    Hospitals violating EMTALA may lose their Medicare participation agreement, have civil money penalties of up to $50,000 per violation imposed and be subject to suit by private parties. Public relations, state licensure status and JCAHO or AOA accreditation also may be adversely affected.

    Summary of the Final Rule

    In the preamble to the final rule issued last Friday, CMS discusses its responses to last year's public comments. The final rule will be published in the September 9, 2003, Federal Register, and will be effective 60 days later.

      Final Rule Highlights:

    • Defines the term "dedicated emergency department" to mean any hospital facility or department, whether situated on or off the main hospital campus, that satisfies any one of the following criteria: (1) is licensed by the state as an emergency room or emergency department; (2) is held out to the public as providing care for emergency medical conditions on an urgent, non-appointment basis; or (3) during the preceding calendar year, based upon a representative sample of patient visits, provided at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent, non-appointment basis. In the preamble, CMS indicates that it may post questions and answers on its website to provide further clarification and help providers determine a representative sample. CMS also advises that the term "dedicated emergency department" may include hospital obstetrical departments and psychiatric units that provide services to persons who present as unscheduled ambulatory patients, but are routinely admitted for evaluation and treatment. However, persons who present to a provider-based off-campus department that is not a dedicated emergency department are not protected under EMTALA. And while an off-campus provider-based hospital department that is a dedicated emergency department must comply with EMTALA, it is not required to transport patients to the main hospital campus, when such a move would not be in the patient's best interest.

    • Clarifies when physicians, particularly specialists, must participate in the on-call rosters of hospital medical staffs. Given the limited availability of on-call physicians in many specialties and geographic areas, hospitals are given discretion in developing their on-call rosters to best meet their patients' needs. Hospitals can permit on-call physicians to accept simultaneous call at another hospital or to perform elective surgery while on call, provided the hospitals have written policies and procedures in place to provide that emergency services are appropriately available.

    • Clarifies that hospital-owned air and ground ambulances are permitted to comply with communitywide protocols in responding to medical emergencies. For example, if an ambulance is operating under communitywide emergency medical service protocols that require it to transport a person to a facility other than the hospital that owns the ambulance, EMTALA does not apply. In that situation, the person is considered to come to the emergency department of the hospital to which the person is transported, when the person is brought onto the hospital property.

    • Clarifies the extent to which EMTALA applies to inpatients and outpatients. EMTALA does not apply to persons who begin receiving scheduled, non-emergency outpatient hospital services, before they present for examination or treatment for an emergency medical condition (even if they are later transported to the hospital's dedicated emergency department). Moreover, once patients are admitted in good faith for inpatient hospital treatment following screening, the EMTALA obligations end.

    • Clarifies that hospitals may continue to follow reasonable registration processes, which may include asking whether persons are insured, and if so, by what insurer, provided the inquiry does not delay services or discourage persons from remaining.

    • Specifies that prior authorization policies apply to services furnished by a hospital, physician or other practitioner.

    • Specifies that emergency physicians and others involved in emergency treatment may consult a person's physician at any time about the person's medical history provided the consultation does not delay services.

    Compliance Issues, Interpretive Guidelines and Training Manuals

    Although the final rule provides significant guidance, some compliance issues remain. CMS notes in the preamble that it will be developing interpretive guidelines and training materials for EMTALA surveyors as well as EMTALA-related patient information and educational material. Furthermore, hospitals and physicians have responsibilities under accreditation standards, state laws, contractual arrangements and ethical obligations to meet the needs of patients even in situations when EMTALA obligations do not apply.