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June 13,2002
CMS seeks comments on proposed EMTALA revisions:
A notice of proposed rulemaking was issued May 8 announcing broad generalities in the approach CMS is considering for revision of EMTALA enforcement. Comments are due by 5 pm July 8, 2002. An original and three copies must be provided and mailed to:
Centers for Medicare and Medicaid Services
Attention: CMS-1203-P
P.O. Box 8010
Baltimore, MD 21244-1850
The proposed revisions are summarized below and I wish to acknowledge the contributions of Dr. John Lipson in this break-down of issues:
- Hospital owned ambulances – codifies the current (recent) CMS position that if the hospital-owned ambulance is operating under community (city, county, regional, or state) EMS protocols that determine where the patient is to be taken, EMTALA will not require the patient to be taken to the owner-hospital.
COMMENT: This is a much-needed change that correctly places EMS protocols before ambulance ownership in deciding patient destinations. Coupled with the 9th Circuit Court of Appeals position that ambulances may not be redirected from hospitals except under formal diversion, we arrive at a reasonable standard...."follow your EMS system protocols (or get some and follow them) and follow EMS diversion standards and you will be OK." -- Publisher.
- Prior authorization – formalizes the 1999 OIG comments on pre-authorization (i.e. it is not permitted) but comments that Medicare+Choice must be contacted after the patient has been determined not to have an emergency medical condition or after stabilization, which might include admission and surgery. This provision is unclear whether it approves financial transfers for Medicare+Choice.
COMMENT: This provision begs the issue of formally defining the point when calls can be made. Better, but not good enough. People will still get into trouble and get cited because the "case-by-case" review concludes the call was placed too soon.
The interesting thing is that STATE medicaid offices and CMS programs and fiscal intermediaries should not have needed this rule...except they were routinely demanding pre-authorization in violation of HCFA prior directives under the Balanced Budget Act. Publisher
- Conditions of Participation – This is a very significant warning, which might be overlooked, which is repeated several times: CMS may not think EMTALA applies to a specific circumstance, but they reserve the right to cite abuses under Conditions of Participation which may likewise result in exclusion from Medicare.
COMMENT: For those of you who do not speak bureaucrat-ese, this repeated reference to conditions of participation translates --"OK, you folks want a little slack on EMTALA paperwork, we will go along with it, BUT don't try to slip out of the substance of the rules under EMTALA, because we will slam you with termination under the Conditions of Participation. Don't press your luck." -- Publisher.
- In-Patient EMTALA: In-patients are covered by EMTALA if they were admitted on an unscheduled basis and they remain covered until stabilized. If stability is not consistent, they are deemed unstable for the entire period. If the patient is admitted as a scheduled situation, CMS will approach the situation as non-EMTALA under Conditions of Participation and state licensure standards.
COMMENT: I don't think this one is going to hold up with the courts to the extent that they
- Allow an in-patient with identical unstable conditions to be transferred without the same protections as an ED admission patient with identical conditions (i.e.-denial of equal protection)
- The rationale is directly contrary to the Lopez-Soto case decision and many other cases that say that the duty to comply with EMTALA is based on known EMC or unstable condition, not means of access to the hospital
- Allow an in-patient admitted on a scheduled basis who has an unexpected emergency to be denied transfer to a higher level of care, when an identical patient admitted under EMTALA would HAVE TO BE ACCEPTED in transfer by the higher level hospital. [Hospitals already have problems with this on EMTALA patients who are admitted...now we have a new confusing element.]
I think you really missed the ball on this one guys, and if you win -- well, people will die.
- On-Call physicians – this proposed clarification is a no change in actual application. They recite that there is no absolute “rule of 3” (i.e. – interpreted by some as “you must have 3 docs in a specialty before you have to have a call list” and by others as “you have to have full coverage if you have 3 or more docs in a specialty”). They indicate that the hospital is free to select its own method to meet the needs of the community, and that “senior staff” status is permitted as long as it does not affect patient care. This represents a written version of the polices and practices currently enforced by CMS which result in numerous on-call violation citations, and offer no specific guidance upon which a hospital may rely.
COMMENT: See comments on CMS Announcement
- Out-patient and remote sites – does away from the total application of EMTALA to remote sites, unless they qualify for “regular” areas for treatment of emergency conditions. Sites that are not “regular” will be able to call 9-1-1 while providing reasonable care.
COMMENT: This rule makes it a lot more reasonable on how much EMTALA complaince is pushed off on remote sites, administrative areas, and surrounding premises. The idea of areas used for regular unscheduled purposes is wrapped up in the term "dedicated" emergency services. CMS asked for comments on just how much use should be considered "dedicated" -- 10%, 20% etc.
My personal opinion -- if the area, office, or department takes walk-in patients (i.e. -- not scheduled in advance)for exam and treatment (as opposed to lab work) then it should have EMTALA responsibilities. If not, then it should not. -- Publisher
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