Don’t make changes yet, EMTALA expert cautions

Some definitions called unclear

While proposed changes to the Emergency Medical Treatment and Labor Act (EMTALA) would give hospitals more leeway in certain areas, it’s important to remember that those changes aren’t yet in effect, cautions Stephen Frew, JD, a longtime specialist in EMTALA compliance.

"The absolute crucial thing is that while we expect some revisions in the 250-yard and off-site rule, we have to follow it until it’s formally relaxed, says Frew, a web site publisher (www.medlaw.com) and risk management consultant for Physicians Insurance Co. of Wisconsin in Madison.

Previously, the law stated that if a patient made it within the "250-yard zone" of a hospital or to hospital outpatient departments, he or she was covered by EMTALA. The proposed change, he explains, is to limit that provision to hospital departments and off-site locations that are regularly used for unscheduled patient visits.

There continues to be some confusion about what is and what is not a "dedicated emergency service," he notes. "[The federal government] is struggling internally with some of those definitions of a dedicated ER [emergency room], and what percentage of walk-in patients you have to see."

Frew says he has cautioned Center for Medicare & Medicaid Services (CMS) officials that the percentage of walk-in patients at many hospitals changes on a weekly basis. "If they set it up like that, people will be doing creative accounting. His suggestion, he adds, is that the rule should simply be that if a care provider takes walk-ins, it should be covered under EMTALA, and if there are only scheduled patients, it shouldn’t be."

Until the details are clarified and the new rules go into effect, Frew advises, hospitals should act under the assumption that all off-site facilities operating under the same provider number are covered by EMTALA.

Mistakenly thinking the requirements are loosened would be most dangerous in the case of the requirement involving on-call physicians, he points out. "In that situation, the wording that’s been proposed is basically the first time [CMS] has put in writing what it is already enforcing."

Because the proposal talks about hospitals being able to set up the on-call system for emergency services any way they wish, Frew says, some have said that means physicians no longer have to be on call.

"It’s actually not liberal language," he adds. "It’s what always has been true. While hospitals are free to set up the system the way they want, CMS reserves the right to disagree with the hospitals’ conclusions and issue citations."

Such lack of clarity has been an ongoing problem with EMTALA, Frew says. "What people don’t understand is that bureaucratic language is designed to be fuzzy so [CMS] can do what it feels should be done in a specific case. It’s setting up a bunch of hospitals for a wave of citations."

The final EMTALA regulation originally was to have been issued the first of August, he notes, "then word was out it would be the last of September or the first of October. If it comes out before the end of this year, I’ll be surprised."