Final EMTALA regulation retains exemption for off-campus sites

Under the final rule for the Emergency Medical Treatment and Labor Act (EMTALA) regulations from the Centers for Medicare & Medicaid Services (CMS), most off-campus hospital surgery centers no longer will fall under EMTALA. The rule has never applied to surgery centers that are certified by Medicare as freestanding. Hospital-based surgical facilities would be subject to EMTALA only if located on the main hospital campus and treated by Medicare as a department of the hospital, or located off-campus of the main hospital and qualifying as a "dedicated emergency department [ED]."

A "dedicated emergency department" is defined as:

• state licensed facilities that are designated as having an ED;

• facilities that see one-third or more of their caseload as unscheduled walk-ins based on the prior calendar year data — verified by a site surveyor using a sampling system to be defined in the next set of surveyor guidelines;

• facilities that hold themselves out to the public as providing urgent care via signs, advertising, name, etc.

Off-campus surgery centers, radiology clinics, mammography clinics, primary care clinics, and rehab centers where patients come in for scheduled visits and aren’t seeking emergency care no longer fall under EMTALA.

Off-campus sites are required to have policies and procedures for emergency conditions, which may include calling 911 or sending a team from the hospital, says Stephen A. Frew, JD, risk management consultant for PIC Wisconsin in Madison.

"The obligation to contact the home ED is removed, although it may be appropriate in terms of transfers to the main facility," he says.

The definition of hospital property that falls under EMTALA includes the parking lot, sidewalk, and driveway. It excludes areas and structures that are within 250 yards of the main hospital building but are not part of the hospital — for example, physician offices, entities with separate Medicare provider numbers, restaurants, shops, and other nonmedical facilities.

However, bear in mind that CMS has some discretion to consider unique factual situations and deviate from the specific criteria, says Eric Zimmerman, JD, partner with McDermott, Will, and Emery in Washington, DC.

"As such, an area that might be beyond 250 yards could still be regarded as hospital campus," Zimmerman points out. "Individual providers are encouraged to examine their individual circumstances."

At press time, the notice was published in the Sept. 9, 2003, Federal Register and is scheduled to take effect 60 days after the publication date on Nov. 8. The Federal Register is available at many libraries and on the web: www.gpoaccess.gov/nara/index.html.

Sources

For more information, contact:

  • Stephen A. Frew, JD, Risk Management Consultant, PIC Wisconsin. Telephone: (800) 279-8331, ext. 1914. Fax: (608) 828-1194. E-mail: sfrew@medlaw.com. Web: www.picwisconsin.com.
  • Thomas Gustafson, Centers for Medicare & Medicaid Services, Baltimore. Telephone: (410) 786-4487.