CMS clarifies when EMTALA applies
Proposed changes could add burden to CMs
Case managers who work in emergency departments (ED) have long been concerned with requirements that go along with the Emergency Medical Treatment and Labor Act (EMTALA). Now the Centers for Medicare & Medicaid Services (CMS) has proposed changes that may well make it necessary for case managers in more traditional inpatient settings to become more familiar with the anti-patient dumping rules.
Some nurses have had EMTALA fines levied against them, and case managers who work in EDs must stay abreast of changes in the EMTALA rules, says veteran case manager and health care attorney Kathleen Lambert, JD, RN, in Tucson, AZ. "Case managers working in emergency departments will have liability associated with EMTALA that they can’t escape," she warns.
The proposed revisions, included in CMS’ hospital inpatient proposed rule, which was published in the Federal Register May 9, includes an important change that should be of interest to case managers, says Lowell Brown, JD, a partner with Foley and Lardner in Los Angeles. To date, some court opinions have stated that EMTALA continues to be effective as long as the patient is in the hospital, regardless of the specifics. However, other courts have placed the cut-off earlier than that. For the first time, the proposed regulation finally says that once a patient stabilizes, the obligation is over, he says. "That was something that was up in the air until now, and this would finally settle it."
For example, a patient presents to the hospital with a gunshot wound. As soon as the patient is stabilized, then EMTALA no longer applies, and the hospital can transfer or discharge the patient.
The proposed rule also states that inpatients admitted for elective, nonemergency treatment or diagnosis are not subject to EMTALA.
Many other standards and requirements regarding transfers still may apply, such as those promulgated by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and other standards about transfers and providing care.
It may be a relief for hospitals that some categories of patients do not fall under EMTALA. However, some complications may arise on the inpatient side, says Brown. That is because the proposed regulations provide that if the patient who presents to the ED is not stabilized at the time of admission, EMTALA continues to apply throughout the inpatient stay until there is documentation that that the patient has been stabilized.
That rule would not apply to an elective admission or to an EMTALA admission in which a patient is stabilized and then later destabilizes, Brown says.
In other words, it gets very complicated, says Steve Lipton, JD, a partner with the law firm Davis Wright Tremaine in San Francisco. What hospitals will face on the inpatient side is a subset of patients who will have come out of the ED and will not be stabilized and will be covered by EMTALA, he explains.
According to Lipton, that will raise several questions that are not addressed in the regulations. The first is, "How will EMTALA apply to the treatment decisions that are made [regarding] an unstabilized EMTALA inpatient?" He says an important medical staff issue is whether or not an on-call physician is required to come to the hospital to see an EMTALA inpatient or do a consultation for treatment.
Generally, Lipton says, surgical and specialty medical consultations are governed by the medical staff bylaws and the rules and regulations of the hospital and generally are not an EMTALA issue. But he says he already is fielding questions such as, if EMTALA applies to inpatients, will on-call physicians be required to respond to requests for consultations?
Lipton says hospitals also are confused about whether a specialty hospital that has an obligation to accept an EMTALA emergency patient would have the same obligation to accept the transfer of an emergency inpatient who is covered by EMTALA.
To help answers these questions, Lambert says case managers should look to their hospitals to give them guidelines on how to implement whatever changes occur.
"If you are following a policy that has been properly reviewed and given to you to implement, then you are functioning safely within the policy of your facility," she argues.
If the policy itself is flawed, that is an issue for the hospital and not the case manager. The good news, according to both Brown and Lipton, is that CMS seems genuinely interested in fielding comments and making further clarifications.
[For more information, contact:
- Lowell Brown, JD, Foley and Lardner, Los Angeles. Telephone: (310) 277-2223. E-mail: [email protected].
- Steve Lipton, JD, Davis Wright Tremaine, San Francisco. Telephone: (415) 276-6500. E-mail: [email protected].
- Kathleen Lambert, JD, RN, Tucson, AZ. Telephone: (520) 760-1955. E-mail: [email protected].]
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