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Clearing the EMTALA fog

By William H. Maruca, Esq. & Tina Batra Hershey, Esq.

The medical community has now had a few months to digest the new final regulations under the Emergency Medical Treatment and Labor Act (EMTALA) that were published in the Federal Register on September 9, 2003 by the Centers for Medicare and Medicaid Services (CMS). EMTALA, commonly referred to as the patient anti-dumping statute, is the federal law that requires hospitals to screen and stabilize patients with emergency medical conditions before they can be transferred to other hospitals in most cases. The new regulations took effect on November 10, 2003.

We can now begin to assess to what degree the regulations met their stated goal of reducing confusion and easing many of the burdens faced by hospital emergency departments, while still ensuring that individuals will receive appropriate screening and emergency treatment, regardless of their ability to pay.

One of the most noteworthy changes, the greater flexibility in establishing emergency department coverage schedules, was cheered by specialists and jeered by many emergency physicians and hospitals. It remains to be seen whether the flexibility afforded by these rules will increase or decrease access to specialty services at community hospitals.

EMTALA requires hospitals to provide an appropriate medical screening examination to any person who comes to the hospital emergency department and requests treatment for an examination for a medical condition. If the examination reveals an emergency medical condition, the hospital must either stabilize the condition or, if appropriate, transfer the individual to another medical facility.

CMS published interim guidance to its regional offices and state survey agencies on November 7, days before the rule took effect. The guidance can be accessed at http://www.acep.org/library/pdf/sc0410.pdf.

EMTALA rights begin when an individual “comes to the emergency department” of a covered facility. Although that simple phrase may appear to set a bright-line standard, the questions of what constitutes an emergency department, and when an individual has presented to an ED for treatment, have been the source of much controversy during EMTALA’s history. The new rule and the CMS guidance attempt to streamline the test and apply some common sense.

EMTALA obligations vary with where the patient first appears and what the patient actually requests. There rule assumes that a patient appearing through the “Emergency” entrance has done so to request emergency treatment, but the level of screening required is greatly reduced if the patient is clearly there for a non-emergency reason. Patients who arrive elsewhere in the hospital or in a hospital-owned facility are subject to different rules.

Dedicated Emergency Department. A hospital must provide an appropriate medical screening examination to all persons who present themselves to a “dedicated emergency department,” (whether on or off the hospital’s main campus), and who request an examination or treatment of a medical condition.

A dedicated emergency department is defined as an entity which: (1) is licensed by the State as an emergency department; or (2) holds itself out to the public by name, posted signs, advertising, or other means as providing emergency care without appointment on an urgent basis; or (3) during the preceding calendar year, provided at least one-third of its outpatient visits for the treatment of emergency medical conditions (EMC).

When an individual comes to the dedicated ED for non-emergency services (such as suture removal), the hospital is not obligated to conduct a comprehensive medical screening examination, but may simply make a determination that no medical emergency exists from facts and circumstances and the normal patient intake process.

Other locations on-campus: Persons presenting themselves at an area of a hospital on the hospital’s main campus other than a dedicated ED must receive a medical screening exam only if they request examination or treatment for what may be an emergency medical condition. Where there is no verbal request, a “prudent layperson” standard applies based on the person’s appearance or behavior.

Note that the controversial “250-yard zone” surrounding the hospital’s main buildings will continue to define the “hospital campus,” but will not include non-medical businesses (shops and restaurants located close to the hospital), nor does it include physicians’ offices or other medical entities that have a separate Medicare identity. EMTALA requires that a person who collapses on the sidewalk within this zone must be attended to, but not a person who collapses in the doughnut shop next door.

A patient suffering a heart attack or other emergency condition while on the hospital’s campus for outpatient treatment has no EMTALA rights, but the same patient who is stricken on the steps of the emergency department is protected by EMTALA. Hospitals will have no EMTALA obligations towards an individual who has begun to receive services as part of a scheduled outpatient encounter and subsequently experiences an emergency medical condition. CMS feels that such individuals are protected by the Medicare conditions of participation.

Other locations off-campus: In a reversal of CMS’s policy announced in the April, 2000 hospital outpatient PPS final regulation, EMTALA will not apply to off-campus outpatient clinics that do not routinely provide emergency services. If a request is made for emergency care in a hospital department off the hospital’s main campus other than a dedicated ED, such as a hospital-owned physician office, the off-campus facility is directed to call the local emergency medical service to take the individual to the appropriate emergency department (not necessarily their own) and should provide whatever assistance is within its capability. However, Medicare conditions of participation require hospital outpatient departments to have written policies and procedures for appraisal of emergencies and referrals when appropriate.

Stabilizing a patient. CMS defines a patient as stabilized if “no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility, or with respect to an “emergency medical condition as defined in this section under paragraph (ii) of that definition, that the woman has delivered the child and the placenta.” 85″A patient will be deemed stabilized if the treating physician or qualified medical personnel attending to the patient in the emergency department/hospital has determined, within reasonable clinical confidence, that the emergency medical condition has been resolved.”

Physician on-call requirements. Under EMTALA, and as a requirement for participation in the Medicare program, hospitals must maintain a list of physicians who are on-call for duty to provide the treatment necessary to stabilize an individual with an emergency medical condition determined after the initial examination. If a physician on the list is called by a hospital to provide emergency screening or treatment and either fails or refuses to appear within a reasonable period of time, both the hospital and the physician may be violation of EMTALA.

The new on-call requirements under EMTALA were designed to provide greater flexibility to hospitals and where a conscious effort by CMS to prevent the refusal of physicians to provide call coverage in many areas of the country. CMS explicitly recognized that physicians’ treatment of other patients, vacations, days off, conferences and other similar issues may be considered in determining the availability of physicians. In addition, CMS recognized that many hospitals, particularly those in rural areas, which must often highly compensate physician groups for providing on-call coverage to their emergency departments which strains already limited financial resources.

In the final rule, CMS provided that hospitals will have the discretion to create call schedules in a manner that best serves the needs of their communities, even if that means that certain specialists may not be available at certain times. In such situations, hospitals are required to have a plan to deal with patients who need specialized care. In particular, CMS clarified that exempting senior medical staff physicians from on-call coverage is not a violation of EMTALA as long as the exemption does not affect patient care adversely.

In addition, CMS did not set a predetermined ratio of how many days a hospital must provide medical staff on call coverage based on the number of physicians on staff for that particular specialty. Generally, CMS will consider all relevant factors, including the number of physicians on staff, other demands on these physicians, the frequency with which the hospitals patients typically require services of on call physicians, and the provisions the hospital has made for situations in which a physician in the specialty is not available, or the on-call physician is unable to respond for determining compliance with EMTALA requirements. While the final rule allows physicians to perform elective surgery while on-call or to be on call at more than one hospital, hospitals are required to have written policies and procedures in place to ensure that emergency services are available to meet the needs of patients with emergency conditions.

Enforcement. CMS notes that the enforcement of EMTALA remains a complaint-driven process. The investigation of a hospital’s policies and processes, and any subsequent sanctions, are initiated only by a complaint. There will not be roving “EMTALA Police” performing spot inspections of covered facilities. However, as patients continue to become more consumer-oriented and knowledgeable about their rights, it is likely that noncompliant facilities and physicians will need to defend their actions.

Penalties under EMTALA may be enforced against both hospitals and physicians if they negligently fail to appropriately screen an individual seeking medical care, negligently fail to provide stabilizing treatment to an individual with an emergency medical condition, or negligently transfer an individual in an inappropriate manner. Hospitals and physicians, including on-call physicians, who violate EMTALA may face stiff penalties, which can include civil fines of up to $50,000 per violation or exclusion from participation in the Medicare and Medicaid programs. In addition, EMTALA provides a private right of action to individuals who suffer personal harm.

William H. Maruca, Esq., is a partner with the Pittsburgh office of Fox Rothschild LLP, and Tina Batra Hershey, Esq., is an associate with the firm.

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