CMS proposal could have unintended consequences

Final passage for new regs is likely

The recent proposal by the Centers for Medicare & Medicaid Services (CMS) to allow hospitals to establish community call arrangements to satisfy their federal on-call physician requirements at a regional level is likely to be formally adopted, says Stephen A. Frew, JD, vice president of risk consulting for Johnson Insurance Services of Madison, WI.

"I would say that barring unforeseen political implications, I would expect it to go into play in October fairly closely approximating the language that's there now," he says. "The area where we might see some change may be the wording in the section dealing with transfers."

That section, Frew notes, says even if you have established a community call panel, it doesn't relieve you of your transfer obligations under the Emergency Medical Treatment and Labor Act (EMTALA). "You still have to call and get [transfer] acceptance, document it, and send the patient by an appropriate medical vehicle," he says. "They may play with some of the language, but the final form will be very close to the language we have now."

At first glance, it sounds like only good news for ED managers who are frustrated at their inability to have specialty services adequately covered. The Centers for Medicare & Medicaid Services (CMS) has proposed allowing hospitals to establish community call arrangements at a regional level to satisfy their on-call physician requirements under the Emergency Medical Treatment and Labor Act (EMTALA). However, warns one expert, there could be some potential pitfalls in this new reality.

For example, the proposal includes "one of the biggest changes in EMTALA in 10 years," says Michael J. Williams, MPH, HAS, president of The Abaris Group, a Walnut Creek, CA-based health care consulting firm specializing in emergency services. Now, he explains, if you have a specialist on call who could handle a given case, "you are absolutely required to accept the patient."

Another area where unintended consequences might result is ambulance patient "parking." Since ED managers try their best not to go on diversion, it might take ambulance patients as long as 45 minutes to get into a bed, notes Williams. "In the new proposed rules, CMS says your EMTALA obligations begin when you arrive at the ED," he says. "So EMTALA now says you are responsible for beginning the screening exam in the hallways on a stretcher."

Not doing this assessment also could be a violation of the hospital's condition of participation as it pertains to providing speedy emergency care, says Williams. "At the very least, you have to start the assessment while the patient is still on the stretcher," he advises.

ED managers "will have to write new policies that ensure if there is any parking, you need to go over and assess the patient," Williams says. "You are not obliged to complete the MSE [medical screening exam], but you at least have to perform a simple assessment."

The riskiest implication of all, says Williams, is that hospitals that have specialized capabilities must accept patient transfer and not put any conditions on it if they have the capacity and capability. "This is new," he says. "In the past, you would not accept patients when you should have had on-call coverage; you might, for example, have called a trauma center."