Morris Manning & Martin, LLP

EMTALA Again

12.01.2008

Recently, the Centers for Medicare and Medicaid Services (CMS) proposed new regulations addressing the application of the Emergency Medical Treatment and Active Labor Act (EMTALA) to patients admitted to the initial receiving hospital and “on call” clarifications as to what constitutes appropriate and adequate emergency on-call services. These regulations were in part in response to recommendations from the Technical Advisory Group (TAG), formed by the Secretary of Health and Human Services to advise the Secretary on issues relating to EMTALA. The regulations were proposed in April 2008, shortly after the TAG issued their Final Report. Final regulations were issued in the August 19, 2008 Federal Register and went into effect October 2008.

With respect to patients with an emergency medical condition (EMC) that were admitted to the initial receiving hospital, CMS reversed course from its proposed solution. The final regulation provided that once a receiving hospital admits a patient with an EMC, the EMTALA obligations of both the receiving/admitting hospital as well as any potential specialized hospital ends. CMS also indicated that it would not allow hospitals that admit patients for elective and other non-EMC conditions, which patients subsequently develop an EMC, to declare such patients “EMTALA Patients,” who would have to be accepted under EMTALA by specialized hospitals.

In attempting to establish a “bright line” with respect to admitted patients, CMS may have added significant burdens to smaller hospitals that are often “transferring hospitals.” They will be put to the task of making an early determination of their ability to resolve a patient’s medical condition or transfer the patient to a specialized facility. This Final Rule may also have the unintended effect of worsening the work load of hospitals with specialized capabilities. The traditional “transferring hospitals” will not have the option of admitting the sick or injured patient who is a marginal patient to see if they can treat the condition without risking the ability to transfer the patient if their efforts are unsuccessful. The question remains as to when EMTALA obligations will re-assert themselves, if at all, if an admitted patient’s EMC does not abate or he develops an EMC while admitted.

The final regulations also clarified the physician “On Call” rules. CMS removed language stating that a hospital is required to maintain an on-call list “in a manner that best meets the needs of the hospital’s patients.” CMS explained that this change was made in order to reduce provider confusion regarding the standard for maintaining an on-call list. CMS noted that the existing language stating that an on-call list must 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 on the resources it actually has available at the time, including the availability of specialists.

CMS also noted in the final regulations that “physicians should not perceive the change in the text of the regulation as confirmation that they should limit their on-call availability,” apparently acknowledging CMS’s concern that a physician who wanted to avoid on-call obligations (or a hospital that did not want to apply such obligations uniformly) could attempt to excuse non-compliance by claiming that the physician was not “available” as a resource.

CMS adopted the proposed rule that permits hospitals to meet the EMTALA requirement for maintaining an on-call physician list by participating in a formalized community Call Plan among hospitals and retained all but one of the proposed Call Plan elements described in the proposed rule. CMS omitted from the Final Rule the requirement that hospitals demonstrate evidence that they have analyzed the specialty on-call needs of the community to be served by the Call Plan, concluding that the proposed requirement would be duplicative of the existing requirement that a hospital must annually assess the Call Plan.

Comments to the proposed rule raised concerns regarding the potential antitrust and HIPAA implications of Call Plans. In both instances, CMS deferred to the U.S. Department of Justice and Office of Civil Rights, respectively, regarding these issues. However, the comments reflect that some providers have compliance concerns about participating in Call Plans that, if left unresolved, may deter their participation.

Additional comments to the proposed rule asked whether CMS anticipates that physicians or hospitals are to be compensated for their services related to participation in a Call Plan. CMS noted in the Final Rule that financial arrangements between an on-call physician and hospital are solely between those two parties and do not involve CMS.

While Call Plans have some appeal, it is unlikely that they will be extensively utilized until the above issues are addressed. Additionally, competing hospitals may be reluctant to develop a Call Plan as it will inevitably involve discussions about compensation for the physicians and distribution or re-distribution of uninsured patients. If these issues have already been addressed (or at least at a stale-mate in the community), it is unlikely that all sides will want to open it up for further discussion. If they have not been resolved, they will only add to the complications of developing a community wide Call Plan.

The elements of a Call Plan, as described in the Final Rule, are as follows:

  • Clear delineation of on-call coverage responsibilities (when each hospital is responsible for on-call coverage).
  • Definition of the specific geographic area to which the Call Plan applies.
  • Signatures from the appropriate representatives of each hospital participating in the plan.
  • Requirements that any local and regional EMS system protocol formally includes information on “community on-call” arrangements.
  • A statement specifying that, even if an individual arrives at a hospital that is not designated as the on-call hospital, that hospital still has an EMTALA obligation to provide a medical screening examination and stabilizing treatment within its capability.
  • Continued compliance by participating hospitals with EMTALA regulations governing appropriate transfers.
  • Reassessment of the Call Plan on an annual basis by participating hospitals.
  • Hospitals participating in a Call Plan must have written policies and procedures in place to cover situations in which an on-call physician is unable to respond because of situations beyond his or her control (which is a pre-existing requirement under EMTALA).