CMS EMTALA memo says telecommunications OK

Averages for LOS, LWBS patients cut in half

In a memo of clarification that should have ED managers breathing a sigh of relief, the Centers for Medicare & Medicaid Services (CMS) has informed state survey agency directors that there is no prohibition under the Emergency Medical Treatment and Labor Act (EMTALA) against ED physicians using telecommunications in consultation with specialists who are not present in their hospital or critical access hospital (CAH).

The memo, dated June 22, 2007, noted that some parties had interpreted the guidelines for 42 Code of Federal Regulations 489.20(r) and §489.24(j), which deal with hospital/CAH on-call lists and the obligations of on-call physicians to make in-person appearances, and they did in fact contain such a prohibition.

"The prior guidelines were just flat out confusing about the ED practitioner's ability to reach out [to specialists] using that technology," concedes Alan Steinberg, an attorney with the Pittsburgh-based law firm Horty Springer, who attended the two most recent CMS Technical Advisory Group (TAG) meetings that led to the issuance of the memo. "This memo is quite significant, as many ED managers felt they were constrained and limited in their ability to use telemedicine," he says.

At a recent [TAG] meeting, there was an association in attendance that represented telemedicine that testified there was concern that telemedicine could not be used for on-call purposes, says Charlotte S. Yeh, MD, FACEP, regional administrator, Region I, for CMS in Boston. "While we had never prohibited that, there was concern that the way the guidance was worded it could have been interpreted as such, so we all agreed it was important to send out a clarification," she says.

The memo specifically states the following:

"The treating physician in a hospital's or critical access hospital's (CAH) dedicated emergency department (DED) who is conducting the medical screening examination and/or providing stabilizing treatment of an individual required by the EMTALA regulations at 42 CFR 489.24 may, without violating EMTALA, consult on the individual's case with a physician who is not present in the DED by means of any telecommunications medium that the physicians choose to use." It further adds that the portions of the guidelines that discuss telemedicine or telehealth are superceded by this new guidance.

Radiology, says Yeh, is a good example of a specialty that will benefit from the guidance. "Before, the radiologist would have to have come in [to the ED]," she says. "Now, some of that burden should be relieved."

Other sections unchanged

Experts are quick to point out that the other sections of 42 CFR 489.24 are unaffected by this new guidance. So, for example, the on-call physician who is requested to make an in-person appearance in the DED still is required to do so. Still, the new guidance does raise the question of whether greater use of telemedicine might help relieve the problem caused by specialists' growing reluctance to take call.

"If the use of telemedicine gives the ED more doctors to reach out to, or more ways to address the emergency medical condition, that is always a help in terms of the on-call burden," says Steinberg.

But others are not so sure, including Ralph Talkers, MD, the emergency services medical director of Middletown Regional Hospital, a community facility north of Cincinnati, which handles 55,000 ED visits per year. "I see limited value from the patient emergency evaluation and stabilization standpoint," he says. "There may be select cases in which consultation provides us an alternative disposition plan, i.e., the patient would not require the services of another institution [his facility generally requests transfers when on-call physicians are not available], but these would be far and few between in our practice setting."

Telemedicine might help, concedes Yeh, but that aid may be offset, at least in part, by one other portion of the memo: "This guidance does not affect policy by any health care third party payer, including Medicare, governing the circumstances under which it will or will not pay for remote consultation services," she notes.

"EMTALA is not a reimbursement policy, but a condition of care and access to care," Yeh explains. "We can say, 'Sure, you can use telecommunications,' and if in fact that makes the use of on-call physicians a more efficient part of doing business, all well and good, but [reimbursement] is separate and distinct."

As for whether third-party payers do, in fact, reimburse for telemedicine, Yeh says "it varies from payer to payer."

Sources/Resource

For more information on the guidelines concerning telecommunications, contact:

  • Alan Steinberg, Horty, Springer & Mattern, 4614 Fifth Ave., Pittsburgh, PA 15213. Phone: (412) 687-7677. Fax: (412) 687-7692. E-mail: asteinberg@hortyspringer.com.
  • Ralph Talkers, MD, Emergency Services Medical Director, Middletown Regional Hospital, Middletown, OH. Phone: (513) 420-5755.
  • Charlotte S. Yeh, MD, FACEP, Regional Administrator, Region I, Centers for Medicare & Medicaid Services, JFK Federal Building, Room 2325, Boston, MA 02203. Phone: (617) 565-1188.

Additional information on whether and how the Centers for Medicare & Medicaid Services will reimburse telehealth services can be obtained by accessing its Internet Only Manuals (IOM). You can access the following two sections on Telehealth Services:

  • Section 270 of Chapter 15 of the Medicare Benefit Policy Manual Pub. 100-02;
  • Section 190 of chapter 12 of the Medicare Claims Processing Manual Pub. 100-04, as downloadable PDF files (free of charge). The link is: www.cms.hhs.gov.