What are responsibilities of specialty hospitals?

steve@wordmaninc.com.]

Question: A patient presents to "Community Hospital's" ED, is screened and is found to be in an emergency medical condition (EMC). She needs orthopedic surgery to stabilize her EMC. The problem: There are no orthopedic surgeons on Community Hospital's medical staff. They all left last year after building their own specialty hospital. Does the specialty hospital have an obligation under the Emergency Medical Treatment and Labor Act (EMTALA) to accept Community Hospital's proposed transfer of this patient?

Answer: Pursuant to a new EMTALA regulation published Summer 2006, the answer is yes, so long as the terms of a "specialized capabilities" transfer are met, according to Alan Steinberg and Ian Donaldson, attorneys with the Pittsburgh-based law firm Horty Springer.

Several dynamics have been involved in the rise of specialty hospitals, they note. One of the attractions for some physicians has been the belief that they could escape EMTALA responsibilities because the law was thought not to apply to those facilities, they say.

In changes made to the EMTALA Regulations published on Aug. 18, 2006, however, the Centers for Medicare & Medicaid Services (CMS) made it clear that EMTALA does apply to specialty hospitals that have "specialized capabilities," as compared to the proposed, sending facility, they say.

CMS' position is that the specialized capabilities provision always applied to specialty hospitals, but that this rule may not have been well understood, explain Steinberg and Donaldson. As described in its comments published with the regulatory changes, CMS states: "[I]t has come to CMS' attention that our policy regarding the application of EMTALA to hospitals that have specialized capabilities but are without dedicated emergency departments may be less well understood as it relates to individuals for whom an appropriate transfer is sought." [68 FR 48,097 (2006)].

CMS states that it has been its longstanding policy that any Medicare-participating hospital with a specialized capability, in accordance with EMTALA's specialized capabilities provision [42 U.S.C. §1395cc(g)], must accept, within the capacity of the hospital, an appropriate transfer from a requesting hospital. That policy has been applied to hospitals without regard to whether they have dedicated EDs, note Steinberg and Donaldson.

One particular point of review for the EMTALA Technical Advisory Group (TAG) has been the applicability of EMTALA to specialty hospitals. To quote from CMS' comments: "At its meeting held on Oct. 26-28, 2005, the EMTALA TAG heard testimony from representatives of physician groups, hospital associations, and others regarding EMTALA compliance by specialty hospitals that typically do not have dedicated emergency departments. After extensive consideration and discussion of the issues raised and views presented, the members of the EMTALA TAG voted to recommend to the secretary that hospitals with specialized capabilities [as defined in §489.24(f) of the regulation] that do not have a dedicated emergency department be bound by the same responsibility to accept an appropriate transfer under EMTALA as hospitals with a dedicated emergency department." [68 FR 48,097 (2006)].

Steinberg and Donaldson are in agreement with the EMTALA TAG's assessment. To address the TAG's recommendation, they point out, CMS proposed changes to the EMTALA regulations on April 25, 2006, as part of the fiscal year 2007 IPPS proposed rule [71 FR 24,118 (2006)]. In its proposed changes, CMS noted that the revision would not require hospitals without dedicated EDs to open EDs, nor would it impose any EMTALA obligations on those hospitals with respect to individuals who come to the hospital as their initial point of entry into the medical system seeking a medical screening examination or treatment for a medical condition. By its proposed revision, CMS sought only to clarify that any Medicare-participating hospital with specialized capabilities had EMTALA obligations as per the specialized capabilities provision.

The proposed changes became final as published Aug. 18, 2006. By the revision, 42 C.F.R. §489.24(f) now states: "(f) Recipient hospital responsibilities. A participating hospital that has specialized capabilities or facilities [including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers, which, for purposes of this subpart, means hospitals meeting the requirements of referral centers found at § 412.96 of this chapter] may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. This requirement applies to any participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department." (Emphasis added by Steinberg and Donaldson.) [68 FR 48,143 (2006).]

What does this all mean? Steinberg and Donaldson explain that if a patient at an acute care hospital requires specialized capabilities not then available at the hospital, but that are available at the specialty hospital, then the specialty hospital would have an EMTALA obligation to accept the proposed transfer as long as it has the capability and capacity to treat the patient.

Does that mean specialty hospitals must institute an on-call list and program as per other Medicare-participating hospitals? In its comments, CMS said no, but it adds that the specialty hospital must find appropriate ways to meet its Medicare responsibilities [68 FR 48,098 (2006)], according to Steinberg and Donaldson.

Therefore, they conclude, it would appear that physicians who provide their specialty services at specialty hospitals, and no longer at acute care hospitals or on a much more limited basis there, now can find themselves on the receiving end of specialty transfers if the acute care hospital cannot provide that specialty service at the time needed by the patient in an emergency medical condition. There likely will be more to come from this regulatory change, once its full meaning and scope are understood. For patient care purposes, this means that an acute care hospital and its ED that cannot provide specialty services at any given time can look to a specialty hospital for a specialized capabilities transfer.

[Editor's note: For more information on EMTALA, contact Steinberg or Donaldson at Horty, Springer & Mattern, 4614 Fifth Ave., Pittsburgh, PA 15213. Phone: (412) 687-7677. Fax: (412) 687-7692.]