In a little noticed rule change buried in 1500 pages of regulations set to go into effect August 1, the CMS rules on admissions terminating EMTALA appear to be getting a major change.
The CMS regulations currently state that EMTALA ceases to apply to a patient who is admitted in good faith with the expectation that they will remain hospitalized overnight. Applying the CMS/Medicare existing definition, that would mean at least one “midnight” spent in the hospital. This rule is already subject to challenge in several court cases, where the US Courts of Appeal for several federal districts have split on whether the rule is valid or CMS exceeded its authority and passed a rule that conflicts with the statute.
The new regulation in question changes the Medicare definition by creating a presumption that a medically necessary admission is one where the physician reasonably believes that the patient will spend at least “two midnights” in the hospital. It would still be possible to justify a “one overnight” admission, but it will be an uphill fight.
The obvious intent of the regulation is to discourage hospital admissions to reduce federal Medicare expenses, and the unintended consequence (I hope it is unintended) is to put pressure on ED physicians and on-call physicians to admit fewer patients to avoid non-payment situations. That in turn exposes the physician to a greater chance of EMTALA violations and medical malpractice suits for discharging patients who “should have been” admitted.
Emergency physicians will be strongly pressured not to admit patients who “might not” spend two midnights in the hospital to avoid payment denials. That in turn increases the probability that CMS and plaintiff’s attorneys will fault the discharge decision as financially motivated and a violation of EMTALA.
The net affect will most likely be that ED physicians will call in on-call specialists and admitting physicians on any potentially disputed admission to shift the risk of an admit/discharge decision and potential liability away from the ED physician.
Prior to the current EMTALA admission rule, CMS took the position that EMTALA applied until the patient was legally stabilized (such that there was no likelihood that the patient would deteriorate from or after transfer or discharge as a result of the transfer or discharge or as a consequence of the natural progression or risks of their condition.)