EMTALA regs: You may be surprised at proposed changes to requirements
July 1, 2002
EMTALA regs: You may be surprised at proposed changes to requirements
Long-awaited changes to federal regulations may make it easier to comply
If you’re like most ED managers, you probably have a long list of changes you’d like to see regarding the Emergency Medical Treatment and Labor Act (EMTALA). While a dramatic overhaul of the federal law is not to be expected, a proposed rule for new EMTALA regulations from the Baltimore-based Centers for Medicare & Medicaid Services (CMS) is a step in the right direction, according to experts interviewed by ED Management.
"I truly think those at the top are trying to make it easier for us to comply," says Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. "The general thrust is positive."
The changes attempt to strike a balance between ensuring access to care and making the requirements less burdensome for EDs, adds Charlotte Yeh, MD, FACEP, medical director for Medicare Policy at the Hingham, MA-based National Heritage Insurance Co.
However, not all ED managers are enthusiastic about the proposed rule. "I believe that both hospitals and physicians had hoped for and expected more significant changes," says Larry Bedard, MD, FACEP, a senior partner with Oakland-based California Emergency Physicians, which provides physician staffing and management services for EDs in that state.
Bitterman acknowledges that more changes are needed, but says this is a golden opportunity for ED managers to make their voices heard. "CMS wants to know how this affects the delivery of emergency care, and your input can make a difference," he says.
The deadline for comments is July 8, 2002, and the final rule is expected to become effective Oct. 1, 2002. (See "Resources" at the end of this article for instructions on how to send comments to CMS.) Here are key changes from the CMS proposed rule for implementation of EMTALA:
• A distinction is made between EDs and off-campus clinics. For the first time, CMS gives a description of a "dedicated ED," says Bitterman. "This is new. It means that if you hold yourself out as offering emergency or urgent services, CMS is going to call you a real ED," he says. However, other types of facilities such as radiology clinics, mammography clinics, primary care clinics, and rehab centers, where patients come in for scheduled visits and are not seeking emergency care, would no longer fall under EMTALA. "They really backpedaled on that, which is very good for hospitals," says Bitterman. "The change eliminates a whole bunch of the off-campus rules. But EMTALA never should have reached that far in the first place."
The advantage for you is that off-campus departments are no longer required to automatically contact the ED, and would be more likely to use existing emergency medical systems (EMS) protocols, says Yeh. "It prevents the ED from being bombarded with a host of questions from the off-campus site, which should facilitate the care of all patients," she says. EMTALA would not apply to patients with a scheduled outpatient visit.
CMS has begun to distinguish who is asking for emergency care and who isn’t, says Yeh. If it’s clear that someone is coming in for a scheduled visit and there is clearly no emergency medical condition, then obligations under EMTALA would end at that point, she adds. "This explains something that people had trouble grasping," she says.
Bitterman notes that rural hospitals often use the ED for nonemergency services during off hours, such as scheduled suture removals, injections, feeding tube replacements, and lab tests. "We hoped they would say EMTALA doesn’t apply to those scenarios, but they didn’t say that at all," he says. "They said if patients are coming to the ED, you’ve still got to screen them, and do whatever is required to determine if they have an emergency. That’s exactly what the statute says, so CMS’s proposed changes are really no change at all."
He adds that CMS uses a poor example to illustrate this, with nurses doing the screening rather than physicians. "I think that will embolden hospitals to use nurses to screen," says Bitterman. "The problem is, you don’t know if an emergency exists until the patient is examined." If you do use nurses for screening examinations, Bitterman warns that CMS has instructed state agencies, review panels and peer review organizations to scrutinize this using reasonable standards for physicians, not nurses, physician assistants, or nurse practitioners. "So they will judge your performance as if that individual was a physician," he says.
• EMTALA would not apply when hospital-owned ambulances operating under community-wide EMS protocols require transport to a hospital other than the hospital that owns the ambulance. According to the proposed rule, EMTALA would not apply as long as you operate hospital-owned ambulances within a community protocol, says Bitterman.
However, Yeh cautions that your community’s EMS protocols must follow well-established and recognized standards of care. "The concern would be hospitals using EMS protocols to deliberately triage uninsured or indigent patients away from their ED," she says.
• Hospitals are given flexibility regarding on-call physicians. The proposed rule recognizes that specialty physicians can’t realistically be compelled to be available at all times, but it doesn’t offer solutions to the increasing unavailability of these doctors, says Michael L. Carius, chairman of the Norwalk (CT) Hospital Department of Emergency Medicine and current president of the Dallas-based American College of Emergency Physicians. "This means that many ED managers’ jobs will get even more difficult as they cast a wider net to find coverage," he adds.
The proposed rule would correct misinformation that’s been circulating about on-call requirements, says Yeh. "For example, there is a belief out there that you need to have a certain number of on-call physicians, but there is no such rule," she explains. Yeh notes that there is an obligation to have a contingency plan in place if you don’t have an on-call physician for a particular specialty, or if the on-call physician has a legitimate reason why they can’t respond. "It forces you to be explicit about contingency plans," she says.
Unfortunately, the proposed rule is likely to further inflame the current on-call crisis, says Bitterman. "This is not going to help matters at all and will cause physicians to withdraw further from taking call," he says. The rule underscores that once a physician is on-call, EMTALA then would apply to them, which carries the threat of penalties and lawsuits. "So physicians are going to say, why would I want this?" he says.
• Prior authorization is not allowed. Although prior authorization for emergency services was prohibited in the interpretive guidelines, this was never codified as law, says Yeh. "So this elevates it from a guidance to regulation," she says.
Any requirement by a managed care organization for prior authorization renders that part of the contract void, because it conflicts with federal law, adds Bitterman.
Use this as leverage to obtain reimbursement for screening examinations required by EMTALA, urges Denise Casaubon, RN, owner and president of DNR Medical Legal Consultants, a Fountain Hills, AZ-based company specializing in health care corporate compliance. "ED managers, or whoever does the contract negotiations for the facility, should use this clarification to receive payment for services rendered," she recommends.
As an ED manager, you should have input into managed care contracts for emergency services, stresses Bedard. "Some hospitals continue to sign contracts agreeing to prior authorization for emergency services, which is prohibited by EMTALA," he says.
Resources
The Centers for Medicare & Medicaid Services proposed rule, which contains information about the new EMTALA regulations, is Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2003 Rates. The proposed rule was published in the May 9, 2002, Federal Register. A final rule will be published later this year. Comments from the public will be accepted until July 8, 2002. Refer to file code CMS-1159-P. No faxed comments will be accepted. Mail written comments (an original and three copies) to the Centers for Medicare & Medicaid Services, Department of Health and Human Services, Att: CMS-1203-P, PO Box 8010, Baltimore, MD 21244-1850.
To order a copy of the Federal Register with the proposed rule, contact New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. Specify the date requested. Credit card orders also can be placed by calling the order desk at (202) 512-1800 or by faxing to (202) 512-2250. The cost for each copy is $10. The Federal Register is available at many libraries and on the web: www.access.gpo.gov/nara/index.html.
Sources
For more information about the proposed rule, contact:
• Larry Bedard, MD, FACEP, 88 Prospect Ave., Sausalito, CA 94965. Telephone: (415) 332-1893. Fax: (415) 332-1895. E-mail: [email protected].
• Robert A. Bitterman, MD, JD, FACEP, Department of Emergency Medicine, Carolinas Medical Center, P.O. Box 32861, Charlotte, NC 28232-2861. Telephone: (704) 355-5291. Fax: (704) 355-8356. E-mail: [email protected].
• Michael L. Carius, MD, FACEP, Norwalk Hospital, Maple Street, Norwalk, CT 06856. Telephone: (203) 852-2281. Fax: (203) 855-3705. E-mail: [email protected].
• Denise Casaubon, RN, DNR Medical-Legal Consultants, 16217 Balsam Drive, Fountain Hills, AZ 85268. Telephone: (480) 816-6695. Fax: (480) 836-8185. E-mail: [email protected].
• Charlotte S. Yeh, MD, FACEP, Medical Director, Medicare Policy, National Heritage Insurance Co., 75 Sgt. William Terry Drive, Hingham, MA 02043. Telephone: (781) 741-3122. Fax: (781) 741-3211. E-mail: [email protected].
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content