Inpatient Transfers and Community On-Call Programs: New Rules Finalized

By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor

In August of this year, the Centers for Medicare & Medicaid Services (CMS) published final rules revising the Medicare hospital inpatient prospective payment system (IPPS). These regulations also contain policy changes related to a hospital's obligations under the Emergency Medical Treatment and Labor Act of 1986 (EMTALA).1

First, CMS rejected its own proposed rule which would have required referral hospitals to accept inpatients in transfer from other hospitals if the patient remained unstable after admission under EMTALA. Moreover, it severely limited the scope of EMTALA's transfer acceptance mandate by eliminating its application to inpatients entirely. Second, CMS affirmed its proposal to allow hospitals to band together to provide "community call" to meet their on-call duties under the law.1

The CMS proposed regulations2 and their potential ramifications were discussed earlier this year in the June and July issues of ED Legal Letter.3,4 This article will address the final rules, which become effective on Oct. 1, 2008, on the transfer acceptance requirement, and the new "community call" program intended to alleviate the nation's on-call crisis.

While the "final rules" address particular aspects of these two EMTALA obligations, it is highly likely that CMS will promulgate still more regulations on both issues, particularly the on-call requirement, since it has yet to address many of the recommendations made by the "Technical Advisory Group" (the EMTALA 'TAG') established by Congress to review and advise CMS on the EMTALA regulations.5,6

EMTALA's transfer acceptance requirement

Back in 2003 CMS took the position that a hospital's obligation under EMTALA ends when that hospital, in good faith, formally admits an individual to the hospital. However, CMS never directly addressed the question of whether EMTALA's transfer acceptance requirement applied if a hospital needed to transfer the patient after admission.7

Many attorneys and hospitals (particularly tertiary/academic medical centers) believed since EMTALA ended for one hospital upon admission, that no other hospital had any EMTALA obligation to accept an inpatient in transfer. Others believed that EMTALA imposed an independent duty upon accepting hospitals, and that their duty to accept transfers is not derivative or dependent upon the EMTALA duties of the other hospital. In other words, just because EMTALA ends for one hospital when it admits the patient does not mean the law does not apply to a different hospital when it is asked to accept an appropriate transfer of a patient who needs further emergency care.

In its April 2008 proposed regulations, CMS agreed that once the individual is admitted, admission only impacts the EMTALA obligation of the hospital to which the individual first presented, not the EMTALA obligations of other hospitals.2 It proposed to expand the duty to accept transfers to included patients admitted under EMTALA who remained unstable, and solicited comments on whether or how the transfer acceptance mandate should apply to all inpatients.

After reviewing the many comments it received and reconsidering the issues, CMS reversed itself and stated:

"Although we believe that the language of section (g) of the Act can be interpreted as either applying or not applying to inpatients ... we have serious concerns about the impact the proposed policy would have had on patient care and the possibility that it may overburden many hospitals that are currently having difficulties providing sufficient emergency care."1

In summary, CMS believed that applying the transfer acceptance mandate to inpatients (in addition to ED patients) would negatively impact patient care due to an increase in the number of inappropriate transfers; result in overcrowding academic medical centers, tertiary care centers, and public safety net hospitals; and "further burden the emergency services system and may force hospitals providing emergency care to limit their services or close, reducing access to emergency care."1

The end result is that CMS has created two distinct classes of patients with life-threatening emergency conditions, one class protected by EMTALA from economic discrimination by hospitals, and one class against whom it is fair game for hospitals to overtly discriminate and deny access to emergency care based solely on their insurance status.

Access to emergency care is now determined on what door someone enters the hospital! If an individual develops an emergency condition at home and seeks care at a local ED, but that ED can't manage the emergency, other hospitals that can manage the emergency have a legal duty under EMTALA to accept the person in transfer to provide the necessary care. However, if an individual is already admitted to a hospital and then develops an emergency that the hospital can't treat (think acute neurosurgical emergencies in hospitals without neurosurgeons on staff), no other hospital has a duty to accept the patient in transfer. Other hospitals can accept or reject inpatients in transfer based entirely on economic considerations alone.

(Ironically, it was CMS and the courts that originally expanded a hospital's duty to provide medical screening and stabilizing care when interpreting the statute's "comes to the ED" language, stating explicitly that "access to emergency care shouldn't depend upon which door you enter the hospital.")

Impact of the courts

However, CMS may not have the last word on whether the transfer acceptance mandate applies only to ED patients and not to inpatients. It is inevitable that an inpatient will develop an emergency medical condition and proceed to die or suffer severe damages because no other hospital would accept the patient in transfer due to lack of insurance. (One recent actual example: an unfunded inpatient developed an epidural abscess and was refused transfer for neurosurgical care, leaving the patient permanently paralyzed and incontinent.) The patient or family will sue the hospital that refused to accept the patient in transfer, claiming that the hospital had a federal duty under EMTALA to accept appropriate transfers of patients with emergency conditions if the transferring hospital couldn't treat the emergency.

The courts do not blindly accept CMS's regulations or interpretations of the statute, though they are given great weight and a high degree of deference. (The U.S. Courts have established complex legal precedents for interpreting statutes and regulations implementing them.) See, for example, the legal reasoning in the cases of Preston v. Meriter and Anderson v. Kindred Hospital,8,9 where the courts upheld CMS's regulations ending the application of EMTALA and the liability under the law for hospitals that admit the patient from their ED. Contrarily, the U.S. appellate courts have rejected CMS's interpretation of the meaning of an "appropriate" medical screening exam (MSE). When enforcing EMTALA, CMS determines whether a hospital or the emergency physicians provided an "appropriate" MSE based on ordinary medical "negligence standards" — did the physician meet the acceptable standard of care? The courts uniformly reject the negligence standard, and instead hold the hospitals and physicians to a "process standard" — did the hospital and physician put the patient through their usual screening process to determine if an emergency condition existed?10

Note the language of the transfer acceptance section, section (g), of EMTALA:

"Nondiscrimination. A Medicare participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units ...) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual."11

That word "appropriate" is once again used, this time to define the type of transfers that a hospital must accept. The language is broad and does not condition the acceptance of such patients on their location in the transferring hospital (ED vs. inpatient), or even whether they entered the hospital via the ED.

Remember too, that section (g) was not part of EMTALA originally. Congress amended the law in the late 1980s to add this requirement because referral hospitals were refusing to accept patients in transfer from other hospitals because of their insurance status and the patients were dying in the ED and dying in the inpatient settings. Congress' intent when it passed section (g) was to prohibit our more capable hospitals from refusing for economic reasons transfers of patients with emergency conditions that the original hospital couldn't handle. Hence the title of the section: "Nondiscrimination."12

Section (g) and its "appropriate transfer" language should be interpreted to mean that higher level facilities must accept medically indicated transfers of patients with emergency conditions when they can do so, regardless of the location of the patient in the sending hospital, and on a nondiscriminatory basis.

It will be interesting to see if the courts allow our nation's hospitals to revert to the pre-EMTALA days of openly discriminating against patients in the throes of life-threatening medical emergencies based on insurance status, only this time against inpatients, placing them at risk of death, instead of against ED patients.

Community on-call programs

As expected, CMS confirmed its commitment to allow "community call" programs to be established by groups of hospitals in self-designated referral areas to help address the shortage of ED on-call specialists.1,2

The final rule permits a group of hospitals to designate one of the hospitals in their geographic area as the "on-call facility" for a specific time period, such as weekends, or for a specific service, such as neurosurgery or hand surgery.1

The involved hospitals must establish a formal written plan, with formal written agreements recognized in their policies and procedures, and comply with set minimum criteria determined by CMS; however, no advanced approval from CMS will be required. Each hospital in the program must still medically screen, stabilize, and arrange an appropriate transfer when sending the selected patients to the "community call" facility.

CMS adopted all of its proposed requirements for community call except one. CMS dropped the section mandating that participating hospitals in the community call plan "analyze the specialty on-call needs of the community" for which the plan is effective.1,2

Therefore, under the final rule, hospitals must incorporate the following minimum criteria into a community call program for the plan to be acceptable to CMS:1

1. The community call system must be a formal plan among the participating hospitals, signed by an appropriate representative of each hospital participating in the plan, and with written policies and procedures in place.

2. The community call plan must include a clear delineation of on-call coverage responsibilities, that is, when each hospital participating in the plan is responsible for on-call coverage.

3. The community call plan must define the specific geographic area to which the plan applies.

4. The community call plan must ensure that any local and regional EMS system protocol formally includes information on community on-call arrangements.

5. The community call plan must include a statement specifying that even if an individual arrives at the hospital that is not designated as the on-call hospital, that hospital still has an EMTALA obligation to provide a medical screening examination and stabilizing treatment within its capability, and hospitals participating in community call must abide by the EMTALA regulations governing appropriate transfers.

6. Each hospital participating in the community call plan must have written policies and procedures in place to respond to situations in which the on-call physician is unable to respond due to situations beyond his or her control.

7. There must be at least an annual reassessment of the community call plan by the participating hospitals.

CMS expects these on-call changes to help hospitals attract more physicians, afford additional flexibility to provide on-call services, and improve access to specialty physicians for emergency care in their communities.1,2 Time will tell if it works out as CMS, emergency physicians, and the general public hopes.

References

1. 73 Federal Register (#161) 48,654-48,668 (Aug. 19, 2008). http://edocket.access.gpo.gov/2008/pdf/E8-17914.pdf. (The EMTALA changes are from pages 222-236 of the 651-page PDF version. Questions on the EMTALA revisions in the IPPS regulations should be addressed to Tzvi Hefner at 410-786-4487 or tzvi.hefner@cms.hhs.gov.)

2. Centers for Medicare & Medicaid Services (CMS) Proposed Changes to the Hospital Inpatient Prospective Payment Systems. Includes the proposed changes to EMTALA. The document is available at: http://edocket.access.gpo.gov/2008/pdf/08-1135.pdf. Accessed on 9/9/08.

3. Bitterman RA. Transferring patients: EMTALA rule to apply to those needing more care. ED Legal Letter 2008;19(6):61-64.

4. Bitterman RA. Shortage of on-call specialists for your ED? Help may be on the way. ED Legal Letter 2008;19(7):73-75.

5. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Pub. L. 108-173, 117 Stat. 2066, Section 945.

6. The final EMTALA TAG reports and recommendations are available at: http://www.cms.hhs.gov/FACA/07_emtalatag.asp. Accessed on 9/9/08.

7. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003); 42 CFR 489.24. EMTALA regulations effective Nov. 10, 2003, available though the Federal Register Online GPO Access under "Separate parts in this issue" at: http://www.access.gpo.gov/su_docs/fedreg/a030909c.html. Access on 9/9/08.

8. Preston v. Meriter, 2008 Wisc App. LEXIS 63 (Jan. 24, 2008).

9. Anderson v. Kindred Hospital, 2008 U.S. Dist. LEXIS 23162 (March 24, 2008).

10. See for example, Gatewood v Washington Healthcare Corporation, 933 F2d 1037 (DC Cir 1991); Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th Cir. 1995); Cleland v Bronson Health Care Group, Inc, 917 F2d 266 (6th Cir 1990); Vickers v. Nash General Hospital, 78 F3d 139 (4th Cir 1996; Correa v. Hospital San Francisco, 63 F3d 1184 (1st Cir 1995).

11. 42 USC 1395dd(g). Emphasis added.

12. Bitterman RA. EMTALA and the ethical delivery of hospital emergency services. Emerg Med Clin North Am. 2006;24:557-577.