Plenty questions remain about EMTALA’s final rule
Risk managers have struggled for a long time to interpret the Emergency Medical Treatment and Labor Act (EMTALA), but the recent release of the final rule promised to clear up a great deal of disagreement and differing takes on what the law requires. Some of that promise was fulfilled, but there still is plenty of room to worry about what EMTALA really means, say legal experts who continue to study the law for its many nuances.
As soon as the final rule was released, one of the first questions for risk managers dealt with the infamous 250-yard rule, which was prompted by a case in which emergency department (ED) staff did not leave the hospital grounds to aid someone nearby. Many legal experts interpreted the final rule to mean that risk managers could worry much less about the 250-yard rule because EMTALA now applies only to a much more narrowly defined definition of hospital property.
But that may not be a safe way to interpret the final rule, says William M. McDonnell, MD, JD, a fellow in pediatric emergency medicine at The Children’s Hospital in Denver. McDonnell takes issue with other legal analysts who have suggested that hospitals will not incur EMTALA liability by refusing to evaluate and stabilize individuals with emergency conditions who seek care in public areas within 250 yards of the hospital. Some analysts interpret the final rule to mean that a person on a public street, for instance, no longer triggers EMTALA even if he or she is within 250 yards of the hospital.
A Centers for Medicare & Medicaid Services (CMS) official tells Healthcare Risk Management that such an interpretation is accurate, but McDonnell says he still would be cautious about telling ED 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, he says, and the wording of the law leaves plenty of room for disagreement.
McDonnell notes that the 250-yard rule was instituted after an incident in 1998 in which ED personnel at Ravenswood Hospital in Chicago refused to leave the hospital campus (in accordance with hospital policy) to assist a teen-age gunshot victim. 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."
McDonnell takes issue with how some legal analysts have concluded that the final rule eases the hospital’s obligations to such patients. He says they may rely on a single word change in the final rule, which now defines "hospital property" rather than the previous "property."
"This distinction is of little significance for purposes of the 250-yard rule," he says. "EMTALA was, and continues to be, triggered when a patient comes to the emergency department. The new regulations substitute hospital property’ for property’ now, stating that for purposes of this section, hospital property’ means the entire main hospital campus as defined . . . "
The new regulations then proceed to expressly preserve the 250-yard rule in the definition of "hospital property" and "hospital campus."
Definition of property in question
Some analysts also may rely on provisions in the new regulations which specifically exclude from the definition of hospital property all unrelated, privately owned and operated facilities such as physician offices, rural health centers, skilled nursing facilities, or other entities that participate separately under Medicare, or restaurants, shops, or other nonmedical facilities, he says.
The assumption may be that since public property off the hospital campus is "other nonmedical facilities," EMTALA will not apply, he says. "However, the new regulations clearly envision some nonmedical areas as still within the scope of EMTALA, expressly including hospital parking lots, driveways, and sidewalks," he says. "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."
McDonnell interprets the final rule to say that with specific exceptions, all of the regulatory language that imposed EMTALA obligations on a hospital with respect to a patient known to be seeking treatment for an emergency medical condition within 250 yards of the hospital continues under the new regulations.
"In addition, by expressly reasserting the 250-yard rule, the new regulations seem to reflect an agency decision that the underlying rationale of the rule is still valid and applicable," he says. "CMS presumably still believes that a hospital is best suited to provide initial care to an individual with an emergency condition known to be seeking assistance within 250 yards of the hospital, other than in a privately owned and operated facility. Prudent hospitals will continue to provide emergency medical screening and stabilization for such patients."
A CMS official acknowledges that the 250-yard rule can be confusing. Charlotte Yeh, MD, FACEP, CMS regional administrator in Boston, tells Healthcare Risk Management that the final EMTALA rule did not eliminate the 250-yard rule but it did change where EMTALA applies. In other words, the 250-yard rule still holds true but only in areas that otherwise would qualify for EMTALA coverage, she says. That means public areas with no connection to the hospital do not qualify even if they are within 250 yards, she says. "The original regs talked about the 250-yard rule and it was not clear. It appeared that everything within that 250 yards counted as hospital property, whether the hospital had any ownership or relationship to it or not," she says. "The final rule better clarifies what land and structures within the 250-yard rule can trigger EMTALA."
Yeh adds that dedicated EDs definitely count and so does any other hospital property within the 250 yards, including sidewalks, driveways, and parking lots. But EMTALA excludes provider-based entities operating under a different Medicare provider number and nonmedical facilities, even if they are within those 250 yards. "This would mean that a public highway within the 250-yard rule would not fall under EMTALA," she reports.
With varying interpretations, the best bet for risk managers, McDonnell says, is to continue with a cautious approach that ensures anyone who could even remotely be considered to coming to your ED receives proper care. Besides providing the best liability protection, it’s also just the right thing to do, he says.
Although the exact designation of "250 yards from the main buildings" may be somewhat arbitrary, McDonnell says, the rule enforces the notion that a hospital ED is in the best position to provide immediate assistance to an individual in close proximity with an emergent condition. That should be obvious to anyone, he says, and you risk a great deal by trying to split hairs about what is and isn’t covered, he says. "It is conceivable that CMS will change its position and choose not to enforce the 250-yard rule in situations like the Ravenswood incident, which involve patients on public property," he says. "However, medical directors, risk managers, and emergency physicians may choose not to gamble their Medicare provider agreements, possible administrative fines, and potential civil liability on that possibility."
Risk managers have struggled for a long time to interpret the Emergency Medical Treatment and Labor Act, but the recent release of the final rule promised to clear up a great deal of disagreement and differing takes on what the law requires. Some of that promise was fulfilled, but there still is plenty of room to worry about what EMTALA really means, say legal experts who continue to study the law for its many nuances.
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