New outpatient PPS rule expands EMTALA’s reach
May 22, 2000 3 minutes read
New outpatient PPS rule expands EMTALA’s reach
The hospital outpatient prospective payment system (PPS) regulation creates new burdensome obligations on hospital outpatient departments and hospital-based entities that experts say will dramatically expand the reach of several requirements, including the Emergency Medical Treatment and Active Labor Act (EMTALA), otherwise known as the anti-patient dumping law.
The new rule applies the EMTALA mandate to all departments of a hospital, as well as any entity that is on campus. In fact, attorneys who have studied the final rule say the Health Care Financing Administration (HCFA) defines the term "comes to the emergency department" so broadly that it includes any time that someone winds up on the hospital’s property.
"I consider EMTALA to be like a virus because it just keeps expanding from the emergency department," asserts health care attorney Steve Lipton of Davis, Wright, Tremain in Seattle. "It has gone from the emergency department and labor and delivery to urgent care and occupational medicine and then around the campus and off the campus." In some parts of the country, it is even being applied to inpatient services, he adds.
Lipton notes that the interpretive guidelines for EMTALA published in July 1998 indicate that if a patient came to a hospital-owned facility that was off-campus, EMTALA applied. But he says HCFA never spelled out what the requirements were. "What they have now done is made these requirements very explicit," he says. "They have also upped the ante beyond what they said in the interpretive guidelines."
"The big difference is that now they have regulatory authority to back up what has been their policy," he adds. "It is a lot easier to cite a regulation than it is to cite a policy."
According to Lipton, the new rule requires that off-campus clinics that are providing medical and nursing care will now have to have someone on-site during regular hours who is designated to perform medical screening and provide stabilizing treatment for patients seeking emergency care.
But he warns that even some hospitals have not yet designated people to perform those functions. "What they probably have in place now are protocols about what you do when you have a patient come in who is in crisis."
In addition, providers will be required to establish protocols for handling emergencies, including direct contact between the personnel at the entity and the main provider’s emergency room, and appropriate training of the personnel if it is an urgent care center, primary care center, or other facility routinely staffed by nurses or physicians.
HCFA maintains that this does not mean that hospitals must add additional personnel in the off-campus emergency department or equip all areas of a hospital to provide emergency care. But attorneys say that hospitals that do not take these measures will leave themselves exposed.
While the gross penalties for EMTALA have not increased dramatically of late, Lipton points out that average settlements have increased. "It is clear that the OIG is collecting more on settlements per violation than they used to," he says. "If the smallest penalty used to be in the $3,000 to $5,000 range, today it might be $5,000 to $8,000."
But he also warns that violations can range up to $50,000 per violation for hospitals with more than 100 beds and $25,000 for hospitals with fewer than 100 beds. "That can multiply if you have multiple violations," he adds. "There are some cases where hospitals have paid more than $100,000."
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