MedLaw E-Bulletin 4/17/06
CMS Regulations Propose Amendment To EMTALA
"False Labor" Certification rules and clarification of specialty hospital duty to accept transfers.
Published Apr 19, 2006
This is a LONG edition:
1. CMS Regulations Propose Amendment To EMTALA
"False Labor" Certification
2. CMS Regulations Propose Making Specialty Hospital
Acceptance Rules Explicit
3. EMTALA Signs Continue To Be Citation Sore Spot
4. Coming Soon...
------------------- 1 ---------------------
CMS REGULATIONS PROPOSE AMENDMENT TO EMTALA "FALSE LABOR" CERTIFICATION
Tucked inside more than 1192 pages of of the new CMS In-Patient Prospective Payment System (PPS) regulations, CMS has announced a change in its "False Labor" certification requirements.
Responding to a recommendation by the EMTALA Technical Advisory Group (TAG), CMS has decided that false labor can be certified by non-physicians under appropriate circumstances.
The new language will provide:
"...A woman experiencing contractions is in true labor unless a physician, certified nurse-midwife, or other qualified medical person acting within his or her scope of practice as defined in hospital medical staff bylaws and State law, certifies that, after a reasonable time of observation, the woman is in false labor."
(modification to 489.24(b))
1. Your hospital bylaws must designate the authority to the non-physician
2. It must be within state scope of practice standards
3. As with all non-physician exams, CMS looks for policies, procedures, and protocols with documented competencies and quality monitoring
4. "False Labor" is not the same thing as early labor. To address discharge of early labor patients, I continue to recommend that all OB units have a clinically objective assessment system to assure adequate assessment and documentation.
Discussion of this item starts at page 431 and the regulation text starts at page 566.
------------- 2 -------------------
CMS REGULATIONS PROPOSE MAKING SPECIALTY HOSPITAL ACCEPTANCE RULES EXPLICIT --NO CHANGE IN POLICY...JUST MAKING IT CLEAR
Specialty hospitals that do not have Emergency Departments are still subject to the EMTALA rules on acceptance of patients for transfer, and the new proposed regulations make that absolutely clear.
CMS has always taken this position, and has cited specialty hospitals for failure to take transfers.
The new regulations follow a TAG recommendation based on reports that specialty hospitals have turned down patients on the theory that because they do not have an ED they are exempt from EMTALA.
The new language in 489.24(f) will be:
"Any participating hospital with specialized capabilities or
facilities, even if it does not have a dedicated emergency
department, may not refuse to accept an appropriate transfer if it has the capacity to treat the individual."
This language does not mandate specialty hospitals to add an emergency department but makes explicitly clear that private specialty hospitals of any type may not evade the obligation to accept transfers required by EMTALA.
Watch for more psych, OB,ortho, and cardiac hospitals to get cited as frustrated general hospitals start reporting turn-downs of ED and in-patient transfers of unstable patients in need of a higher level of care.
I am aware of many locations where this battle has been building toward explosion, and "fair notice" has now been given...transfer requests and reports for denials are going to push this issue into open warfare if specialty hospitals don't heed the warning.
One issue will likely be that specialty hospitals will have to have some mechanism for achieving coverage for these transfer patients. If they don't have an ED, they often don't have an on-call system -- but as a practical matter, they may have to put physicians on-call or have hospitalists to address this acceptance obligation or face malpractice issues for inadequate care.
On the flip side of the on-call issue, specialty hospitals have rapidly become the haven for physicians seeking to avoid on-call requirements under EMTALA, and this is NOT good news to them. Specialty hospitals will soon find themselves in the same on-call battle that is engulfing general hospitals.
---------------- 3 ------------------------
EMTALA SIGNS CONTINUE TO BE AN EMTALA CITATION SORE SPOT
The easiest EMTALA compliance element of them all is to have the signs posted in the right places, in the right size, and in the right languages.
So, how come people are getting cited on EMTALA signage right and left? Why do 2 out of 3 hospitals I visit have inadequate signage or illegal conflicts of signs?
Actually, there are several reasons, but none of them are good enough:
a. We forgot to put them up after we finished.
CHECK THEM NOW -- CHECK THEM ONCE A MONTH
b. We did not realize we needed one there.
PUBLIC ENTRANCES, AMBULANCE ENTRANCES,WAITING AREAS, REGISTRATION AREAS, and TREATMENT ROOMS in the ED, OB, urgent care, and psych intake areas and any area used for overflow from those areas.
c. We did not realize they had to be that big.
EASILY READABLE FROM 20 FEET IN GENERAL AREAS MEANS BIG SIGNS.
IN REGISTRATION CUBICLES AND TREATMENT AREAS, THEY MUST BE EASILY READABLE FROM WHERE THE PATIENT IS LOCATED... WHICH OFTEN MEANS 8X10 IS SUFFICIENT.
d. What do you mean we cannot have our insurance signs and co-pay signs?
IF IT CONFLICTS WITH THE EMTALA MESSAGE, CMS CITES IT AS A VIOLATION-- and a sign that says there are co-pay or insurance requirements conflicts with the idea that you will provide care regardless of means or ability to pay.
WHERE TO GET SIGNS:
I no longer provide signs, but you can get them from Margaret
Sanderson by emailing her at EMTALAsigns@aol.com, She
has signs in several languages.
------------- COMING SOON ---------------
EMTALA SEMINARS FOR 2006
Thanks for participating in my survey last fall on topics and locations for EMTALA programs.
We plan on announcing dates and locations for three programs.
Watch future issues for the next two weeks for the announcement.
EMTALA SELF-ASSESSMENT TOOL
We are currently working on a website addition that will allow you to do an online self-assessment of your facility's EMTALA compliance as often as you want and receive a written report and to-do list.
This will be a password protected site to assure privacy of access and allow you to save your data or change it as you progress.
Estimated release date will be by July 4. Watch for further information.
If this proves useful, we may develop other online tools as