Best to comply with the spirit of the 250-yard rule

Question: We're uncertain about whether the 250-yard rule still applies with EMTALA. When the final rule came out in 2003, we heard conflicting opinions about whether we were still responsible for providing emergency care within 250 yards of the hospital. Is there a definitive answer yet?

Answer: The 250-yard rule still applies, but exactly how you measure it is not so clear, even two years after the final EMTALA rule was released, supposedly clarifying all the grey areas.

The infamous 250-yard rule was prompted by a 1998 case in which emergency department staff did not leave the hospital grounds to render aid to someone nearby. After this incident, risk managers were told for several years that the hospital is responsible for complying with EMTALA not just within the physical confines of the hospital but anywhere within 250 yards. But when the final EMTALA rule came out in 2003, many legal experts interpreted it to mean that risk managers could worry much less about the 250-yard rule because EMTALA now applies only to a much more narrow definition of hospital property.

William M. McDonnell, MD, JD, a fellow in pediatric emergency medicine at The Children's Hospital in Denver, has never been comfortable with that "narrow" interpretation, and he now tells Healthcare Risk Management that risk managers are well advised to use a generous yardstick when obeying the 250-yard rule. But he also says complying with the rule need not be as burdensome as some assume.

CMS says rule eased, but no formal statement

When the final rule was released, Charlotte Yeh, MD, FACEP, CMS regional administrator in Boston, explained that the final EMTALA rule did not eliminate the 250-yard rule, but it did change where EMTALA applies. The 250-yard rule still applies, but only in areas that otherwise would qualify for EMTALA coverage under the final rule, she says. That means public areas with no connection to the hospital do not qualify, even if they are within the 250 yards, she says.

So where are you responsible for EMTALA? Yeh says dedicated emergency departments definitely count, and so does any other hospital property within the 250 yards, including sidewalks, driveways and parking lots. But she says EMTALA excludes provider-based entities operating under a different Medicare provider number, as well as nonmedical facilities, even if they are within 250 yards, Yeh says.

"This would mean that a public highway within the 250-yard rule would not fall under EMTALA," she says.

However, CMS has never released a formal statement to that effect, leaving some question as to how individual situations may be handled.

Without a formal statement ratifying more relaxed interpretations, McDonnell says he still would be cautious about telling emergency department staff that they have no obligation to an injured person lying in the street. The only interpretation that matters is the one CMS uses when an allegation is made against the hospital, and the wording of the law leaves plenty of room for disagreement, he says.

In the 1998 incident, the Department of Health and Human Services' Office of Inspector General fined the hospital, arguing that the patient's presence in the close vicinity of the hospital's main buildings constituted "coming to the ED." Subsequent EMTALA regulatory amendments specifically included regulations defining the "hospital campus" as areas "located within 250 yards of the main buildings, and any other areas, determined on an individual case basis, by the HCFA [now CMS] regional office, to be part of the provider's campus."

Some legal analysts have concluded that the final rule eases the hospital's obligations to such patients because the final rule now defines "hospital property," rather than the previous "property."

But McDonnell says that distinction is of little significance for purposes of the 250-yard rule. The final regulations clearly state that some nonmedical areas are still within the scope of EMTALA, expressly including hospital parking lots, driveways, and sidewalks. "Moreover, the specific exceptions to the 250-yard rule are only for specified 'areas or structures of the hospital's main building.' These exceptions are not addressed toward areas outside the hospital's main building, including public roads and sidewalks."

Courts may still see liability

Writing recently in a law journal article, McDonnell explains that if CMS interpreted the 250-yard rule as applying only within the hospital's formal property lines, "it would render the 250-yard rule both redundant and inconsequential." And if the rule were interpreted to apply only to patients on hospital property, it would duplicate the final EMTALA rule regarding people who present at a hospital location other than a dedicated ED. "The 250-yard rule would then become redundant and unnecessary," he writes.1

McDonnell calls on CMS to announce that it will aggressively enforce the 250-yard rule under the older, more liberal interpretation. If CMS does not do so, or if the agency states more clearly that the rule applies only within hospital property, then he warns that risk managers would be playing with fire by not treating people who may be in that 250-yard zone but off the property.

"Regardless of CMS' enforcement decision, individuals injured by EMTALA violations have a private right of action against the hospitals responsible for such injuries," he says.

In an interview with HRM, McDonnell says the best course for risk managers is to continue with a cautious approach that ensures anyone who could even remotely be considered to be coming to your ED receives proper care.

"Until you're given some indication otherwise from CMS in a formal statement, I would advise risk managers to enforce the 250-yard rule the same way they did before the 2003 final rule came out," he says.

But McDonnell also notes that even the older interpretation does not pose as much of a burden as risk managers may think. There is no need to set up patrols of nearby property, for instance. Comply with the intent of the rule, he says, by ensuring that ED staff never deny needed care over a technicality.

"The rule requires that when the hospital is aware of someone with an emergency medical condition, and that person is attempting to reach the hospital for emergency care, and this comes to the attention of the hospital, then you cannot deny treatment just because the person didn't make it onto hospital property," he explains. "But if that same person is on the property but you have no reasonable way to know that, you're not responsible. The rule was intended to avoid situations in which you're peering out the door and telling the person he didn't get close enough so it's not your problem. No one can argue with that."

Reference

1. McDonnell J. Will EMTALA changes leave emergency patients dying on the hospital doorstep? J Health Law 2005; 38:77-93.