CMS Announces EMTALA Changes

By Laura A. Petersen

On July 31, 2008, the Centers for Medicare and Medicaid Services (CMS) released the Hospital Inpatient Prospective Payment Systems Final Rule for Fiscal Year 2009 (Final Rule).  The Final Rule addresses payment and reimbursement, Stark, EMTALA, and patient disclosure issues.  This article discusses the EMTALA changes, which took effect on October 1, 2008.

There are three major EMTALA issues associated with the Final Rule: community call arrangements; EMTALA’s application to hospital inpatients; and maintenance of an on-call list “in a manner that best meets the needs of hospital patients.”  The Final Rule details community call arrangements, clarifies that EMTALA does not apply to patients admitted to the hospital, and removes the “in a manner that best meets the needs of hospital patients” language from the on-call  list provision.

Community Call

CMS approved a shared/community call arrangement.  CMS allows hospitals to participate in a community call plan to provide on-call coverage for an entire geographic area.  A community plan would involve two or more participating hospitals adopting a plan to coordinate on-call coverage for a designated region.  One example would be a plan involving three different hospitals where each facility would provide ten days of coverage in one or more specialties in a particular month.  If a patient presents to a participating hospital’s emergency department which is not providing that coverage, the hospital may transfer the patient to the hospital with the designated coverage pursuant to the plan.  A community call plan must include the following:

1. Delineation of the on-call coverage responsibilities;
2. Description of the geographic region covered by the call plan;
3. Signatures of representatives of each hospital participating in the call plan;
4. Local and regional emergency medical system protocols must include information on the community call;
5. Statement recognizing each participating hospital’s obligation to fulfill EMTALA requirements for medical screening and stabilizing treatment within its capacity and to comply with EMTALA transfer requirements; and
6. Annual assessment of the call plan.

The proposed rule also required that hospitals provide evidence that they analyzed the community’s specialty on-call needs in developing the call plan.  However, CMS eliminated that requirement in the Final Rule because it was addressed by the annual assessment requirement.

The Final Rule’s preamble contains comments expressing concerns associated with potential antitrust and HIPAA implications of a community call plan.  CMS deferred to the Department of Justice and Office of Civil Rights regarding these issues.  Hospitals that are considering community call arrangements should consult with counsel to address these issues.  Additional comments inquired about compensation for services associated with community call plan participation.  CMS noted that such financial arrangements do not involve CMS.  CMS also stated that those financial arrangements may but are not required to be a part of a call plan.  This essentially leaves the compensation issue to the discretion of the providers.  Some commentators expect that CMS’s lack of resolution of these compliance issues will deter some hospitals’ participation in a community call plan.

Hospital Inpatients

CMS also reaffirmed that EMTALA does not pertain to hospital inpatients.  The proposed rule indicated that hospitals with specialized capabilities would have an EMTALA obligation to accept and treat an individual who first presented at another hospital’s emergency department with an emergency medical condition, who remained unstable upon admission, and then required transfer for specialized care that was not available at the admitting hospital.  CMS stated that this rule was a “clarification” of the current regulation.  Several comments were submitted opposing such a proposal.  The American Hospital Association’s (AHA’s) comment letter pointed out that this was a substantial change in policy, not merely a clarification of the current regulation as CMS suggested, that the change in policy was unnecessary as CoPs regulations and associated CMS interpretive guidelines provided appropriate care for all inpatients, that it would adversely impact trauma center and psychiatric hospitals, and that the EMTALA Technical Advisory Group (TAG) did not truly support the change.

CMS did not include this change in the Final Rule.  CMS determined that the potential for an increased level of confusion and more cases of patient dumping supported rejecting the proposal.  As such, once a hospital admits a patient with an emergency medical condition as an inpatient in good faith, that hospital no longer has any EMTALA obligations to that patient.  Additionally, if a patient is subsequently transferred to a hospital with specialized capabilities, that hospital does not have an EMTALA obligation to accept that individual.

“Best Meets the Needs of Hospital Patients”

Finally, CMS revised the language pertaining to maintaining on-call lists “in a manner that best meets the needs of hospital patients.”  CMS proposed the move of the regulation associated with on-call list requirements to the section regarding CoPs regulations.  It also amended the language to be more consistent with the EMTALA statute by removing the “in a manner that best meets the need of hospital’s patients” language from the current paragraph.

CMS indicated that the change was made to reduce provider confusion regarding the standard of maintaining an on-call list.  The AHA’s comments agreed with removal of the language, noting that the language was controversial when originally proposed in 2002 and remained controversial during TAG deliberations.  However, the AHA also recommended that CMS explain why it removed the language from the regulation.

CMS did not fully respond to the request for an explanation.  Instead, CMS merely noted that the existing language that the on-call list be maintained “in accordance with the resources available to the hospital” provides sufficient guidance that a hospital is obligated to provide on-call services based upon the resources it actually has available at the time, including the availability of specialists.  The AHA was concerned that the change not be misconstrued as undermining hospitals’ ability to set on-call requirements for physicians.  In response to this, CMS advised, “Physicians should not perceive the change in the text of the regulation as confirmation that they should limit their on-call availability.”  This establishes that CMS will not allow physicians to avoid on-call obligations or allow hospitals to selectively apply such obligations and claim that a physician was “not available” as a resource.

In EMTALA’s 20 years’ existence, CMS continues to vary its interpretations.  The Final Rule provides greater certainty as to the limits of an accepting hospital’s obligation associated with inpatient transfers.  It also allows more flexibility for hospitals to structure on-call schedules in a geographic region in coordination with other hospitals.  However, when establishing a community call plan, other legal issues must be considered before such implementation.  Community call plan requirements, as well as a variety of other issues, may change in the future as EMTALA Regulations continue to evolve.

Originally published in the Fall 2008 edition of Quinn Quarterly.