Proposed changes to EMTALA rule still lack clear direction, expert says

Prior authorization, off-site locations addressed

Proposed changes to the Emergency Medical Treatment and Labor Act (EMTALA) regulations indicate an attempt to "clear up areas that get the loudest complaints," but still don’t give providers the direction they need, says Stephen Frew, JD, a longtime specialist in EMTALA compliance.

"What people in the field really wanted is missing here," adds Frew, a web site publisher (www.medlaw.com) and risk management consultant for Physicians Insurance Co. of Wisconsin in Madison. In the proposed final rule, which would become effective in October after a comment period that ends July 8, the Centers for Medicare & Medicaid Services (CMS) "has tried to give examples and talk about the policies it expects to see, but still doesn’t say what the policies are expected to contain, what they mean in practical terms."

While the proposed rule generally represents "some changes in what’s in print, but not necessarily a lot in application," he says, there are some significant differences that should be of particular interest to access managers.

When it comes to issues regarding Medicare+Choice plans, Frew says, the proposed rule reiterates that the patient must be stabilized before any calls can be placed for prior authorization and points out that a patient may need admission and surgery before he or she can be stabilized.

"So you have to go to the point of stability — a medical determination — before the call is made," he adds. "That basically leaves a situation where calls for prior authorization are hazardous. In the emergency department [ED], [providers] just can’t do it."

EMTALA regulations have been enforced that way for 15 years, Frew says, but some hospitals have continued to interpret the stabilization requirement more loosely. "Because they are trying to make things more efficient, they’ve said, We’re not delaying care; we’re doing [authorization calls] simultaneously,’" he explains.

That’s a problem, he says, "because of the implications of what a denial from the payer might do midstream. [CMS] is maintaining its position on that and emphasizing that [providers] have to call Medicare Choice and Plus plans [for authorization], but just like with all the rest of the payers, they have to wait until the patient is stable."

What the proposed change in the prior authorization section boils down to, adds Linda Fotheringill, a partner in the Towson, MD, law firm Siegel & Fotheringill, is that before a call can be made to an insurance company to obtain authorization, the medical screening exam must be completed as well as "any further medical examination and treatment that may be required to stabilize the emergency medical condition.

"So the point is, when is that magic moment’ [when stabilization occurs]," adds Fotheringill, whose firm specializes in health care issues and payer denials. "The proposed regulation is very unclear and subjective as to when a call could be made to the insurance company."

Fotheringill says she believes CMS recognizes that the provision is unclear, and that is why the agency is requesting additional comments as to whether it should be further revised. "They’re asking whether the proposed regulation should be revised to state that the hospital may seek information from the insurance company and obtain authorization while providing stabilizing treatment — then they qualify that by saying apart from information about payment.’"

There is a discussion in the Federal Register about seeking comments on further changes that can be accessed by going to www.emtala.com, taking the direct link to the CMS comments on the proposed regulations, and looking at page 31,471, she points out.

"They’re talking about adding language [allowing] the hospital to call and get authorization so long as there is no delay in screening and stabilization services, but at the same time, they are prohibiting the hospital from obtaining information for payment," Fotheringill says. "Why would the hospital want to make what would amount to a meaningless call?"

Another confusing change under the prior-authorization section of the rule, she suggests, is that the proposed section states that for hospitals to be paid for post-stabilization care, they must notify the Medicare+Choice plan "promptly" after stabilization, but does not define "promptly."

But at the same time, Fotheringill points out, the proposed rule change says the hospital’s attempts to obtain preapproval are to be consistent with another section of the rules.

"If the proposal goes through as is, it’s setting up a situation where there will be more denials because the Medicare+Choice plans will be the ones making determinations as to whether the call was prompt," she adds. "As written, it appears that if the payer is not contacted promptly,’ there will be few ways to overturn the denial that will undoubtedly occur. The bottom line is, I would suggest, that this section is limiting the hospital further."

250-yard rule

Another proposed change that is significant has to do with EMTALA’s 250-yard rule, Frew says. "Previously, [the law] was set up to say that if a patient made it within the 250-yard zone or to hospital outpatient departments, he was covered by EMTALA."

The proposed change, he adds, is to limit that provision to hospital departments and off-site locations that are regularly used for unscheduled patient visits. CMS is asking for comments, Frew points out, on how to distinguish between a location that gets an occasional walk-in patient and one that is dealing with such patients enough to be held to the rules.

It is important for access managers to weigh in on this issue, he suggests, noting that comments will be accepted through July 8, 2002. "[CMS] is asking for a definition of significant portion of the time.’"

The proposal regarding the 250-yard rule indicates that CMS officials "are pulling in [EMTALA boundaries], but are not pulling in as far as it had been anticipated they might," he notes. Some members of Congress, Frew says, including EMTALA sponsor Rep. Pete Stark (D-CA), had said CMS "had gotten carried away with remote stuff."

Still, Frew says, the proposal limits the number of locations where EMTALA would directly apply. "It does still indicate that [personnel at these off-site locations] would be expected to do the best they can and call 911, but it lets them out of calling the ED, arranging for transport to the home hospital, and those kinds of issues."

The proposed rule goes on to say that if a patient presents in an area other than the ED with, for instance, a gash in the head, the receptionist is to summon aid, not send the patient somewhere else to get help, Frew says. "It also talks about allowing nurses in other situations to make the determination that the patient’s condition isn’t urgent and to send them elsewhere."

For example, he adds, if a patient previously had sutures and was told by the physician to come back to have them taken out, the nurse can assess the wound and send the patient to an outpatient clinic to have them removed.

"If the patient starts the visit as an outpatient on a scheduled basis, [the law] will assume for the course of events that the patient is not covered by EMTALA," Frew says. However, he adds, the proposal does give several examples. "If in the course of a visit, the patient should experience the sudden onset of a new condition — like having chest pain while blood is being drawn — then it is expected at that point the hospital will initiate EMTALA-type care."

Asked if that would not be an obvious course of action in a health care setting, Frew points out that in most such cases, hospital personnel call the patient’s physician, who directs them to send the patient over for an assessment.

Another touchy’ subject

Another EMTALA provision that is "a real touchy point" with hospitals has to do with policies regarding on-call physicians, he says. In the new proposal, CMS "reiterates that there is no hard-and-fast rule, but reserves the right to disagree with everything the hospital does."

"It depends on a lot of variables," Frew explains. "They are putting in writing that the hospital is free to decide how many physicians are on call in each specialty, but they will look at that and determine the capability of the hospital. It gets back to what they’ve always done in the past, which is second-guess the hospital."

CMS may have intended this change to be reassuring, he notes. "They are saying that it is not automatically a problem to allow senior physicians to be exempt from call, unless it compromises care."

[Editor’s note: Stephen Frew’s web site is www.medlaw.com. He can be reached by e-mail at sfrew@medlaw.com. Linda Fotheringill can be reached at (410) 821-5292 or (800) 847-8083 and by e-mail at sfllc@excite.com. To comment on the proposed EMTALA changes, send an original and three copies to CMS, attention CMS-1203-p, P.O. Box 8010, Baltimore, MD 21244-1850.]