CMS unveils planned changes to EMTALA

In its final inpatient prospective payment system (PPS) regulations for fiscal year 2007, the Centers for Medicare & Medicaid Services (CMS) has included some "modest" changes to the Emergency Medical Treatment and Labor Act (EMTALA) regulations, says M. Steven Lipton, an attorney with Davis Wright in San Francisco. They are as follows:

  • Determination of labor. Under the current regulations, a physician must certify a determination of "false labor," even if a nonphysician (such as a certified nurse midwife) has made the finding within the scope of his or her license. Changes to the regulation have been requested since its enactment in 1994, and the EMTALA Technical Advisory Group recently made a formal recommendation that CMS modify the rule to meet industry standards.

"At long last, CMS has revised the 'false labor' provisions to expand the scope of who may certify the presence of 'false labor,'" says Lipton. "The revised rule will state that a woman experiencing contractions is in 'true labor' unless a physician, certified nurse midwife or another qualified medical person acting within his/her scope of practice (and the medical staff bylaws and state law) certifies, after a reasonable time of observation, the woman is in false labor."

  • Accepting hospital obligations. Under the current regulations, a Medicare-participating hospital with a specialized capability must accept, within its capacity, an appropriate transfer under EMTALA from a requesting hospital. CMS has interpreted the 'accepting hospital obligation' to include all hospitals, including those that do not provide a dedicated ED, notes Lipton. "The EMTALA Technical Advisory Group recently ratified the CMS interpretation and recommended that all hospitals with specialized capabilities that do not have a dedicated emergency department have the same obligation to accept transfers as hospitals with dedicated emergency departments," he says. "In response, CMS has amended the regulations to state specifically that hospitals without dedicated emergency departments are subject to the 'accepting hospital obligation.'"

Regional referral centers. The final revision to the EMTALA guidelines is a clarification that the reference to "regional referral centers" means rural hospitals that are classified under 42 CFR Section 412.96 as rural referral centers (as opposed to all rural facilities located in rural areas).

The regulations are effective Oct. 1, 2006.