Read between EMTALA lines for ominous’ message

Challenge likely on inpatient stance

There is an "ominous" overtone and at least one glaring opportunity for court challenge in the proposed changes to the Emergency Medical Treatment and Labor Act (EMTALA) regulations, suggests Stephen Frew, JD, a longtime health care attorney and EMTALA expert.

"What’s ominous is that even though EMTALA may not apply [in certain situations], the Medicare Conditions of Participation do," says Frew, a web site publisher and risk management consultant for Physicians Insurance Co. of Wisconsin in Madison.

In several instances in the proposed rule, he points out, the Center for Medicare & Medicaid Services (CMS) states that even if EMTALA doesn’t apply, it has the right to look at a hospital’s actions under the Conditions of Participation. Although the language may not seem significant to lay people or even health care providers, Frew notes, there is a between-the-lines meaning for those familiar with the law.

"This says to me, We may let you off under the strict wording of EMTALA, but don’t think that gets you out of everything,’" he says. "This is the regulator’s way of saying, We’re warning you. Don’t think you can push the limit. We still expect reasonable conduct. If you push it, we’ll nail you.’"

The message, Frew adds, is that CMS is "loosening the chokehold, but still keeping hold of the throat."

When the proposed rule addresses EMTALA’s application to inpatients, he continues, it opens itself up to "substantial court challenge," using logic that is "entirely contrary" to a long history of court decisions on the law’s application.

The rule says that if a patient moves in and out of a stable condition, EMTALA applies, Frew notes. But if a patient comes in for an elective procedure and becomes unstable while in the hospital — for example, has an embolism while having knee surgery — the patient would not be covered by EMTALA under the CMS interpretation, he adds.

The CMS interpretation is that the person in such a situation would be covered by the Conditions of Participation, he says. "The [hospital] still has to do what is medically necessary."

"A patient might have a problem and Dr. So-and-so says he would rather deal with the problem at another facility," Frew adds. "Under EMTALA, [the hospital] couldn’t move the patient unless it had to."

By holding such situations to the lesser standard of the Conditions of Participation, he suggests, "CMS is ignoring a major court ruling that interprets this differently. It doesn’t matter which door the patient comes in, [according to that ruling] if the hospital is where the patient has an unstable condition, he is covered by EMTALA."

CMS will be challenged on this point, Frew predicts, "because those situations have resulted in lawsuits before."

Continuing lack of clarity

The proposed new regulations are written in the same "bureaucratic language that can be misinterpreted," Frew notes, which is his major criticism of the rule.

"Providers read the section that says it’s up to the hospital how many physicians are on call, but then CMS says we can second-guess you," he says. "They’re in the dark until they’re nailed."

The new regulations represent an effort to put in writing the agency’s general philosophy, Frew adds, "but philosophy doesn’t help people with compliance."

More than 97% of respondents to a survey Frew did on his web site, www.medlaw.com, said they agreed with EMTALA, he notes, but that they wanted "consistency, clarity, and a safe harbor" in regard to the law. "They said, Give us the line in the sand so we know where we stand and then tell us if we do this, we don’t have to worry,’" Frew adds.

The government has created safe harbors — "a set of rules that says if you follow these, we’re not going to second-guess you" — for Medicare fraud and abuse, Frew points out. "If they can create fraud and abuse safe harbors, which are much more complicated, they should be able to do the same for EMTALA."

The difference, Frew says, is that CMS doesn’t know how hospitals operate. "They’re not familiar with how different hospitals function, what patient flow is, what referral flow is, so when they put in rules that cause problems, they are pretty much bewildered."