CMS hopes final EMTALA rule will ease burden

New rule is both good and bad news

There is much to rejoice about in the final rule of the Emergency Medical Treatment and Active Labor Act (EMTALA), with many of the most vexing parts of the law either clarified or eliminated altogether, but there still is plenty to keep you busy. The new rule will lessen risk in some areas, but it also may increase liability from a longstanding problem — the difficulty of getting enough physicians to take call for EMTALA coverage.

The final rule is "good news, some more good news, and continued bad news," says Mark Kadzielski, JD, head of the West Coast health practice in the Los Angeles office of the law firm of Fulbright & Jaworksi and an expert on EMTALA. He says Centers for Medicare & Medicaid Services (CMS) administrator Tom Scully was on target when he announced the new rule by saying that it "carries out EMTALA in a common sense and effective way."

EMTALA applies to all hospitals that participate in the Medicare program and offer emergency services and covers all patients treated at those hospitals, not just those who receive Medicare benefits. Hospitals that violate EMTALA may have their Medicare participation terminated and may be subject to civil money penalties of up to $50,000 per violation. Individuals who have suffered personal harm and hospitals to which a patient has been improperly transferred and that have suffered financial loss as a result of the transfer also are provided a private right of action against hospitals that violate EMTALA.

One of the most difficult parts of EMTALA essentially was eliminated in the final rule, Kadzielski says. The "250-yard rule," which was prompted by an infamous case in which emergency department staff did not leave the hospital grounds to render aid to someone nearby, was made moot by new definitions outlining when EMTALA applies. Instead of the previous interpretation, which stated that the hospital was responsible for anyone who was within 250 yards of the hospital campus (and "campus" was defined broadly), the final rule now makes clear that EMTALA applies only in specific areas that meet one of three definitions.

In effect, CMS is stating that EMTALA applies only when people come to an area in which they could reasonably expect to receive emergency treatment, Kadzielski says. There no longer is any need to try to figure out where your campus begins and what falls within 250 yards.

EMTALA does not apply to inpatients

And to make things even better for hospitals, CMS declared that EMTALA does not apply to inpatients. That severely limits how much of a hospital’s operations are subject to EMTALA. "If I take my daughter to a doc-in-the-box affiliated with a hospital and they don’t screen her properly, in the old days I could have sued for an EMTALA violation," he says. "Here the new rules say no, not unless it is specifically licensed as an emergency room, or held out to the public as a place that provides emergency care, or unless emergency cases made up a third of all cases for the prior year."

The bad news involves CMS’s final word on the difficulty of getting doctors to take calls for EMTALA coverage, Kadzielski says. This has been a difficult part of complying with EMTALA for years, as hospitals find it difficult to keep enough physicians on call to ensure that an emergency patient can get a proper screening or treatment by a specialist. Hospitals, especially risk managers, had hoped the final rule would help them force doctors to take call, but that didn’t happen. "The government hasn’t done anything to help hospitals get physicians to take call," he says. "They just said it’s up to you. Work it out however you want to, but the hospital has to provide coverage."

CMS decided to stay out of the fight and simply give doctors and hospitals maximum flexibility to work out their disagreement, Kadzielski says. "The final rule also allows doctors to be on call at more than one hospital and to do elective surgery while on call, so they’re effectively not available," he says. "It makes it easier for doctors to take call, but it doesn’t give any hints to the hospital as to how to provide coverage."

One part of the rule related to physician coverage may seem like good news, but Kadzielski cautions that there is a hidden risk. The rule clarifies that it now perfectly legitimate for a hospital, for instance, to have orthopedic coverage on Monday, Wednesday, and Friday, and to have neurosurgery coverage only on Thursday. That is often the best a hospital can manage when specialist physicians are too few or just won’t take calls.

So that’s good news, right? Not entirely, Kadzielski says. The final rule will give you a defense if you were unable to provide enough physician coverage, but it’s not an ironclad defense. "If I’m a plaintiff I’m going to sue and argue that the way you limited this call is not rational, not appropriate and is a violation of EMTALA," he says. "The hospital will argue that the final rule says it’s up to our discretion and that was our decision. But the patient will argue you abused your discretion, knew that was inadequate call coverage, and therefore you should have liability. It’s going to get crazy like that."

Kadzielski says "not only did they make the on-call situation worse by not providing any guidance, they made it worse by leaving it all up to the hospital to decide. That means that when someone disagrees with your decisions about on-call coverage, it’s all in your lap."

Could end up with many more transfers

With that kind of hands-off approach from CMS, the nationwide on-call crisis is not likely to improve any time soon. Kadzielski says the final rule is likely to exacerbate the situation and lead to more patient transfers when the emergency department can’t find a specialist. George Molzen, MD, president of the American College of Emergency Physicians in Irving, TX, agrees and conjures up images of patients being driven all over town in search of the one hospital that has the right specialist on call.

"Hospitals also can allow specialists to opt out of being on call to the emergency department." Molzen notes. "This means that patients in need of specialty care may need to be transferred to other hospitals. 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."

And if your hospital is the one that managed to keep specialists on call, guess what. All those transfers will be coming to your emergency department. The new rule potentially could leave only a few hospitals left 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, exacerbating the ambulance diversion problem.

Don’t think EMTALA is toothless now

Aside from the on-call issue, the EMTALA final rule is largely good news for health care providers. But according to one CMS official, don’t assume the government is going soft. CMS still has every intention of enforcing EMTALA diligently, says Charlotte Yeh, MD, FACEP, CMS regional administrator in Boston. "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."

CMS intended to clarify much of the EMTALA rule that had made compliance difficult, and to codify some court rulings over the past years that affected how the law was interpreted and enforced. In particular, she says, CMS wanted to eliminate the need for "defensive" EMTALA compliance in those gray areas in which providers had a hard time knowing whether the law applied or not. In many cases, providers played it safe by using EMTALA protocols and that led to an unnecessary burden, she says.

For instance, some providers thought the rule applied to patients who came to the hospital for outpatient care such as lab tests. They were in the hospital, so some providers interpreted EMTALA to mean there was an obligation to provide screening. The final rule makes clear that such practices are not necessary, 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."