2. EMTALA Technical Advisory Group (TAG) Recommendations --excerpted from Federal Register April 20, 2008

    Section 945 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Pub. L. 108-173, required the Secretary to establish a Technical Advisory Group (TAG) to advise the Secretary on issues related to the regulations and implementation of EMTALA. The MMA specified that the EMTALA TAG be composed of 19 members, including the Administrator of CMS, the Inspector General of HHS, hospital representatives and physicians representing specific specialties, patient representatives, and representatives of organizations involved in EMTALA enforcement.
    The EMTALA TAG's functions, as identified in the charter for the EMTALA TAG, were as follows:

    (1) Review EMTALA regulations;

    (2) provide advice and recommendations to the Secretary concerning these regulations and their application to hospitals and physicians;

    (3) solicit comments and recommendations from hospitals, physicians, and the public regarding the implementation of such regulations; and

(4) disseminate information concerning the application of these regulations to hospitals, physicians, and the public.

The TAG met 7 times during its 30-month term, which ended on September 30, 2007. At its meetings, the TAG heard testimony from representatives of physician groups, hospital associations, and others regarding EMTALA issues and concerns. During each meeting, the three subcommittees established by the TAG (the On-Call Subcommittee, the Action Subcommittee, and the Framework Subcommittee) developed

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recommendations, which were then discussed and voted on by members of the TAG. In total, the TAG submitted 55 recommendations to the Secretary. If implemented, some of the recommendations would require regulatory changes. Of the 55 recommendations developed by the TAG, 5 have already been implemented by CMS. A complete list of TAG recommendations will be available shortly in the Emergency Medical Treatment and Labor Act Technical Advisory Group final report available at the Web site: http://www.cms.hhs.gov/FACA/07_emtalatag.asp <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/FACA/07_emtalatag.asp>.

The following recommendations have already been implemented by CMS:

     That CMS revise, in the EMTALA regulations [42 CFR 489.24(b)], the following sentence contained in the definition of ``labor'': ``A woman experiencing contractions is in true labor unless     a physician certifies that, after a reasonable time of observation, the woman is in false labor.''

    This recommendation was adopted with modification in the FY 2007 IPPS final rule (71 FR 48143). We revised the definition of ``labor'' in the regulations at Sec.  489.24(b) to permit a physician, certified nurse-midwife, or other qualified medical person, acting within his or her scope of practice in accordance with State law and hospital bylaws, to certify that a woman is experiencing false labor. We issued Survey and Certification Letter S&C-06-32 on September 29, 2006, to clarify the regulation change. (The Survey and Certification Letter can be found at the following Web site: http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp>).
    

That hospitals with specialized capabilities (as defined in the EMTALA regulations) that do not have a dedicated emergencydepartment be bound by the same responsibilities under EMTALA as hospitals with specialized capabilities that do have a dedicated emergency department.
   

This recommendation was adopted in the FY 2007 IPPS final rule (71 FR 48143). We added language at Sec.  489.24(f) that makes explicit the current policy that all Medicare-participating providers with specialized capabilities are required to accept an appropriate transfer if they have the capacity to treat the individual. We issued Survey and Certification Letter S&C-06-32 on September 29, 2006, to clarify the regulation change. (The Survey and Certification Letter can be found at the following Web site: http://www.cms.hhs.gov/
SurveyCertificationGenInfo/PMSR/list.asp<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp>).
    

That CMS clarify the intent of regulations regarding obligations under EMTALA to receive individuals who arrive by ambulance. Specifically, the TAG recommended that CMS revise a letter of guidance that had been issued by the agency to clarify its position on the practice of delaying the transfer of an individual from an emergency medical service provider's stretcher to a bed in a hospital's emergency department.
   

This recommendation was adopted with modification by CMS in Survey and Certification Letter S&C-07-20, which was released on April 27, 2007. (The Survey and Certification Letter can be found at the following Web site: http://www.cms.hhs.gov/SurveyCertificationGenInfo/
PMSR/list.asp<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp>).
    

That CMS clarify that a hospital may not refuse to accept an individual appropriately transferred under EMTALA on the grounds that it (the receiving hospital) does not approve the method of transfer arranged by the attending physician at the sending hospital (for example, a receiving hospital may not require the sending hospital to use an ambulance transport designated by the receiving hospital). In addition, CMS should improve its communication of such clarifications with its regional offices.
   

This recommendation was adopted and implemented by CMS in Survey and Certification Letter S&C-07-20, which was released on April 27, 2007. (The Survey and Certification Letter can be found at the following Web site: http://www.cms.hhs.gov/SurveyCertificationGenInfo/
PMSR/list.asp<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp>).
    

That CMS strike the language in the Interpretive Guidelines (CMS State Operations Manual, Appendix V) that addresses telehealth/telemedicine (relating to the regulations at Sec. 489.24(j)(1)) and replace it with language that clarifies that the treating physician ultimately determines whether an on-call physician should come to the emergency department and that the treating physician may use a variety of methods to communicate with the on-call physician. A potential violation occurs only if the treating physician requests that the on-call physician come to the emergency department and the on-call physician refuses.
   

This recommendation was adopted and implemented by CMS in Survey and Certification Letter S&C-07-23, which was released on June 22, 2007. (The Survey and Certification Letter can be found at the following Web site: http://www.cms.hhs.gov/SurveyCertificationGenInfo/
PMSR/list.asp<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp>).
   

We are considering the remaining recommendations of the EMTALA TAG and may address them through future changes to or clarifications of the existing regulations or the Interpretive Guidelines, or both.
   

At the end of its term, the EMTALA TAG compiled a final report to the Secretary. This report includes, among other materials, minutes from each TAG meeting as well as a comprehensive list of all of the TAG's recommendations. The final report will be available shortly at
the following Web site: http://www.cms.hhs.gov/FACA/07_emtalatag.asp<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs.gov/FACA/07_emtalatag.asp>.