New on-call options: CMS rejects EMTALA expansion

[Editor's note: This column addresses readers' questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you'd like answered, contact Steve Lewis, Editor, ED Management, Atlanta. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail: steve@wordmaninc.com.]

Question: On July 31, 2008, the Centers for Medicare & Medicaid Services (CMS) released final regulations for the inpatient prospective payment program system (IPPS) for fiscal year 2009. Among the new rules, CMS adopted new options for setting up community on-call plans, but it rejected its own proposal to expand the EMTALA obligations of accepting hospitals. What does this mean for ED managers?

Answer: In 2007, the EMTALA Technical Advisory Group (EMTALA TAG) recommended to CMS that hospitals should be able to participate in communitywide call arrangements to improve the coverage of specialty services and ease the call burden on individual hospitals. In the new rules, CMS adopted guidelines for hospitals to meet their on-call obligations through the voluntary use of community call plans, explains M. Steven Lipton, JD, an attorney with Davis Wright Tremaine in San Francisco.

The community plan concept involves two or more participating hospitals that adopt a plan for coordinating call coverage in a designated geographic area, Lipton says. For example, a three-hospital plan could include designation for each facility to provide 10 days of coverage in one or more specialties in a particular month, with specialty call rotating between the facilities. As noted by CMS, if a patient presents to a participating hospital when it is not providing coverage, the hospital, after medical screening and treatment within its capacity, could transfer the patient to the hospital that has designated specialty coverage, Lipton says.

The new regulations require that the hospitals adopt formal written plan that includes all of the following elements:

  • a clear delineation of on-call responsibilities for each hospital participating in the plan;
  • a description of the geographic area covered by the plan;
  • the signature of an appropriate representative of each participating hospital;
  • assurances that local and regional EMS system protocols include information on the community call arrangements;
  • a statement reaffirming the obligation of each participating hospital to meet its EMTALA obligations for medical screening and stabilizing treatment with its capacity, and to comply with the EMTALA transfer requirements;
  • an annual assessment of the plan by the participating hospitals.

In the preamble to the final rules, Lipton observes, commenters expressed concerns with antitrust liability for multihospital call arrangements. In response, CMS suggested that hospitals should direct their concerns to the Department of Justice. Hospitals that are considering community call arrangements should therefore consult with antitrust counsel for guidance on structuring the plan.

Accepting hospital obligations — inpatients

Under the EMTALA statute, Lipton explains, a hospital that has the capacity to provide specialized facilities or services (i.e., a higher level of care) must accept an appropriate transfer of an emergency patient who has an unstabilized emergency medical condition if the transferring facility does not have the capability or capacity to stabilize the patient's condition at the time of the transfer. In 2003, he notes, CMS adopted regulations providing that EMTALA did not apply to an individual after admission to a hospital as an inpatient, even if boarded in the ED while waiting for a bed.

In the draft rules earlier this year, CMS proposed to expand the accepting hospital obligation to include the transfer of an inpatient admitted to the sending hospital from the emergency department with an unstabilized condition if the condition had not been stabilized during the inpatient stay, Lipton says. CMS also requested comments on whether the proposed change should be expanded to other inpatients. The proposed change also was recommended by the EMTALA TAG, but by the margin of a single vote.

In the final rules, however, CMS rejected its own proposal. According to Lipton, CMS noted the submission of numerous comments opposing the proposal that questioned the legality and need for the proposal, the adverse impact on tertiary facilities and the emergency system, the administrative burden on hospitals to comply with the rule, the inconsistency of the CMS position, and the split decision of the EMTALA TAG. CMS ultimately concluded the following: "After consideration of the comments, we believe that finalizing the policy as proposed may negatively impact patient care, due to an increase in inappropriate transfers which could be detrimental to the physical and psychological health and well-being of patients. We are concerned that finalizing our proposed rule would further burden the emergency service system and may force hospitals providing emergency care to limit their services or close, reducing access to emergency care."

In addition to reversing course, CMS modified the accepting hospital obligation to state expressly that it does not apply to the transfer of an emergency patient who has been admitted to another hospital as an inpatient, Lipton says. The new language, he hopes, lays to rest any ambiguity as to the scope of the EMTALA obligation for the accepting hospital as it relates to inpatients.


For more information on the Emergency Medical Treatment and Labor Act (EMTALA), contact:

  • M. Steven Lipton, JD, Davis Wright Tremaine, Suite 600, One Embarcadero Center, San Francisco, CA 94111-3611. Phone: (415) 276-6500.