EMTALA reg eases overall burden, but on-call physician issues still unclear
EMTALA reg eases overall burden, but on-call physician issues still unclear
Rule is clearer, scope narrowed to true emergency units
It’s finally here, and it’s mostly good news. The government recently released the final rule of the Emergency Medical Treatment and Labor Act (EMTALA), and the 262 pages offer many long-awaited clarifications that mean you no longer have to worry so much about issues such as when you must deliver emergency care within 250 yards of your hospital.
But don’t throw out your EMTALA policies just yet. There still is plenty of bite left in the rule, and the final rule won’t wipe away all your EMTALA-related frustration. The question of on-call physicians, for instance, still is difficult, and the final rule may have just made it worse.
Tom Scully, administrator of the Centers for Medicare & Medicaid Services (CMS), announced the new rule by saying that it "carries out EMTALA in a common-sense and effective way . . . ," and many ED professionals are sure to agree. Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care in the department of emergency medicine at Carolinas Medical Center in Charlotte, NC, says CMS achieved its goal of making EMTALA clearer and less burdensome, with some notable exceptions.
"They did it without jeopardizing the safety of individuals seeking emergency care," he says. "There’s still plenty to get confused about, but part of that is due to the discrepancy between what they say and how they enforce it. They can say all these things in the rule, but if the regional offices don’t enforce it that way, we’ve still got problems."
The rule essentially limits the application of EMTALA to "what you and I think of as real emergency departments," Bitterman says.
The new definitions in the rule have the effect of clarifying the vexing "250-yard rule" that many ED managers interpreted to mean they were obligated to provide care to anyone who showed up within 250 yards of the hospital campus. That led to many debates over exactly where the campus borders lay and how to measure the 250 yards, not to mention how the ED staff was going to leave and provide care. Bitterman says ED managers misinterpreted that rule in the past and created unnecessary policies and procedures, including how to respond when a person needs emergency care on a public street near the hospital.
The final rule makes it clear that such a scenario would not trigger EMTALA, he says. "If it’s not hospital property, but it’s within 250 yards of the ED, that doesn’t count," he says. "It never did, really, but people thought it did. Now CMS is making clear that it definitely does not count."
That interpretation is seconded by Charlotte Yeh, MD, FACEP, CMS regional administrator in Boston and an emergency physician. CMS officials never applied the 250-yard rule to nonhospital property, even though health care professionals often interpreted it that way, Yeh says. The final rule makes clear that EMTALA applies only to dedicated emergency services, other hospital departments, parking lots and driveways, or other hospital property within 250 yards, she says.
"The outpatient regulations that came out in 2000 talked about a 250-yard rule, and it wasn’t clear," Yeh says. "It appeared that everything in that 250 yards counted as hospital property, whether the hospital had ownership or any relationship to it at all. But this is clarifying that 250 yards to say what counts and doesn’t count."
Thus, if you’ve been worried that you risk an EMTALA violation if you don’t respond to a person injured on the street within 250 yards of your hospital, you can relax.
"If the person is across the street in the boutiques and shops, even within 250 yards, you have no legal duty whatsoever because that’s not hospital property," Bitterman says.
In the not-so-good-news department, CMS declined to tell hospitals and physicians how to resolve their disputes about how to maintain an adequate on-call list of specialists for emergency care. That could turn into a real problem for EDs and patients, says George Molzen, MD, president of the American College of Emergency Physicians in Irving, TX. The omission creates uncertainty that could potentially increase the shortage of on-call medical specialists, and it could multiply the number of patients transferred to other hospitals in search of a specialist, Molzen says.
"Under the new rule, hospitals may not have to provide on-call medical specialists, such as neurosurgeons, orthopedists, and plastic surgeons, around the clock for emergency patients," he says.
Hospitals also can allow specialists to opt out of being on-call to the ED, Molzen says. "This means that patients in need of specialty care may need to be transferred to other hospitals," he says. "But the question is where? We already have a shortage of on-call specialists because of the medical liability crisis. This rule could exacerbate an already difficult situation."
The new rule potentially could leave only a few hospitals with medical specialists, which means those hospitals may be flooded with emergency patients, Molzen says. It could result in conflicts between hospitals over who will provide specialty care and result in delayed care or more transfers of patients, intensifying the ambulance diversion problem.
Bitterman says CMS gave hospitals and physicians maximum flexibility in determining how to handle the on-call list, "but to me, that’s just maximum uncertainty. Hospitals won’t know if they’re in compliance unless they’re reviewed and the government says they don’t like it."
Though the final rule responds to many concerns by ED managers, it would be a mistake to think the CMS is bowing to pressure and weakening the law, Yeh says. "No one should look at this as a wholesale change or weakening of EMTALA," she says. "It’s just really a much better balance and assurance that patients will get the necessary care without being overly burdensome to hospitals. This makes it more manageable."
For instance, Yeh says the final rule means that a mammography clinic does not have to duplicate — even in theory — the services provided by the ED because it does not meet the new definition of an emergency department. CMS intended to eliminate the unnecessary policies and preparations that some nonemergency facilities took just to avoid a possible EMTALA violation.
The final rule clears up one misunderstanding related to patients who came to the hospital for outpatient care such as lab tests, she explains. Because they were in the hospital, some people interpreted EMTALA to mean there was an obligation to provide screening — a burden, but one that some thought necessary.
"The answer is no. If you’re coming in for a non-emergency medical condition, EMTALA does not apply and you can just go on to your rehab appointment," Yeh says. If you develop an emergency on your way to the appointment or need emergency help, then EMTALA applies, she says. "But if you’re being treated in rehab and develop chest pains, then the other hospital outpatient conditions of participation apply, and you don’t have to apply EMTALA," Yeh adds.
So what does an ED manager need to do in response to the new rule? Reassess where EMTALA applies in your facility, Bitterman advises. "Address that, so you can undo a lot of those ridiculous policies you had in place before. And also, the rule says you need to have a policy in place for when patients come to those facilities that are not considered emergency departments but they have an emergency condition. That’s just common sense."
Sources
For more information on the final rule, contact:
- Robert A. Bitterman, MD, JD, FACEP, Director of Risk Management and Managed Care, Emergency Department, Carolinas Medical Center, 1000 Blythe Blvd., Charlotte, NC 28203. Telephone: (704) 355-5291. E-mail: [email protected].
- George Molzen, MD, President, American College of Emergency Physicians, 1125 Executive Circle, Irving, TX 75038-2522. Telephone: (800) 798-1822.
- Charlotte Yeh, MD, FACEP, Regional Administrator, Centers for Medicare & Medicaid Services, Boston Regional Office, JFK Federal Building, Room 2325, Boston, MA 02203.
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