New EMTALA regs are finally here: You’ll be surprised at the changes

Experts: Don’t forget that basic requirements still stand

Are you having problems providing on-call specialists to patients after-hours? Have you been overwhelmed by the need to educate off-campus sites about Emergency Medical Treatment and Labor Act (EMTALA) requirements? Are you confused about what your ED is required to do when patients have medical emergencies in other areas of the hospital?

The new EMTALA rules from the Baltimore-based Centers for Medicare & Medicaid Services (CMS) address all three of these problem areas. Although there are significant changes in the law, which takes effect Nov. 10, the basic requirements for a medical screening examination, stabilization if an emergency medical condition exists, and transfer requirements are the same, according to Charlotte S. Yeh, MD, FACEP, administrator of the CMS Boston Regional Office.

"This provides clarification of thorny issues that have come up over the years, but no one should interpret this as a wholesale change," she says. "The intent and obligations of EMTALA still stand and have not changed." The bottom line is that no one seeking emergency care should be turned away without a medical screening examination, she emphasizes. "The standard that triage is not a medical screening examination hasn’t changed," says Yeh.

Stephen A. Frew, JD, a consultant with PIC Wisconsin, says, "At this stage, I would not loosen any EMTALA compliance in the ED unless and until site review guidelines give any further guidance." PIC Wisconsin is a Madison-based company specializing in risk management for health care professionals.

It’s a mistake to assume the new regulations are more lenient, urges Yeh. "Use the publication of these new regulations as an opportunity to re-educate yourself about EMTALA obligations," she advises. Penalties for EMTALA violations will not change and include fines of up to $50,000 per violation and possible termination of Medicare participation. In addition, patients still will have the right to sue hospitals for EMTALA violations. "There is a great deal of language that is new to the regulations, but it is exactly what CMS has been saying and applying for many years," says Frew. "There are some surprises, however."

Here are key changes in the EMTALA regulations:

The definition of "hospital property" where patients are entitled to emergency care has narrowed.

"Off-campus" sites now will fall under EMTALA only if they are licensed as an ED, held out to the public as a place that provides emergency care, or if emergency cases accounted for at least one-third of all outpatient visits in the prior year. EMTALA will not apply to doctors’ offices, rural health clinics, nursing homes, or other "nonhospital entities," even if they are adjacent to the main hospital building and are owned or operated by the hospital.

"We have several off-site medical office buildings that this affected," reports Val Gokenbach, RN, MBA, director of emergency services and observation at William Beaumont Hospital in Royal Oak, MI. "Those are now not considered under EMTALA." This change will relieve an ongoing burden to educate off-site staff in emergency care, she explains. "The incidence of problems was so incredibly low that we were finding it difficult to keep individuals comfortable with emergency conditions that they don’t face regularly." The ED will continue to assist off-site locations if a patient is being transported, adds Gokenbach. "We do maintain open lines of communication for support to them in the event that they need advice from us," she says.

The law does require that off-site facilities have protocols for what to do if an emergency does occur, notes Yeh. "It is in the ED’s best interest to work with other areas of the hospital to develop response protocols, but that’s just part of good patient care," she says.

EMTALA no longer applies to admitted patients.

EMTALA no longer will apply to inpatients, whether they are in the ED or on the floors, says Todd B. Taylor, MD, FACEP, an ED physician at Phoenix-based Banner Good Samaritan Regional Medical Center. "This recognizes that EMTALA was never intended to apply to inpatients, no matter how they came to be there," he says. "CMS now appears to be comfortable that the other Medicare Conditions of Participation will cover issues regarding how care, including specialty physician care, will be delivered to inpatients."

However, although EMTALA no longer applies to admitted patients being held in the ED, this does not mean that you are no longer responsible for these patients, warns Frew. "CMS states that patients being boarded in the ED are admitted patients under EMTALA but remain the legal obligation of the ED," he says. "This is a setback both in terms of getting necessary help to care for these patients, and exposes the ED physician and nurses to ongoing liability for care of the patient."

The new regulations won’t change the fact that ED nurses must observe, care, and document for inpatients being held in the ED, while caring for ED patients at the same time, notes Frew. "I strongly caution that boarded patients are legally perceived as entitled to the level of nursing care that they would receive in the destination unit."

This is an ongoing problem resulting in potentially dangerous overextending of ED nurses, he says. "Every effort should be made to pressure administration for unit nurses to cover boarded patients, to ensure that overburdened ED nurses are able to provide care to emergency patients," Frew advises.

On-call specialist requirements are more flexible.

The new rule says that on-call specialists will no longer be required "around the clock," and it specifies that physicians can be on-call at more than one hospital simultaneously and can schedule elective procedures while on call. "No one can really mandate down to the last detail how on-call services are provided, because every community and ED are different," says Yeh. Under the revised regulations, on-call lists can be developed in a way that best meets the needs of the community, she explains.

However, there is a danger of receiving hospitals interpreting the new rules to mean that they are no longer obligated to accept transfers for patients who require a higher level of care, warns Frew. "This will have a major impact on EDs without full-time physician coverage," he says. Although CMS has warned that hospitals still must accept transfers and that this will be enforced under Medicare’s Conditions of Participation, Frew predicts there will be problems. "Hospitals throughout the country have attempted to dodge transfer acceptance of admitted patients for the past 17 years," he says. The new rules will make this more likely, Frew adds.

"When you attempt to arrange a transfer, you may be confronted with the question: Has the patient been admitted?’" he says. "If the answer is "yes," the next question will be about insurance, and the likelihood is that uninsured transfers will be declined." It is illegal under EMTALA to misrepresent a patient’s admission status to obtain a transfer acceptance, so resist this temptation, he adds. "The goal of the conscientious ED nurses in these cases must be to do everything within their power to obtain transfer orders prior to admission and then transfer out of the ED, so that EMTALA clearly controls," says Frew.

Sources

For more information on the new regulations, contact:

Stephen A. Frew, JD. Telephone: (800) 279-8331, ext. 1914 or (608) 831-8331, ext. 1914. Fax: (608) 828-1194. E-mail: sfrew@medlaw.com. Web: www.picwisconsin.com.

Val Gokenbach, RN, MBA, Director of Emergency Services and Observation, William Beaumont Hospital, 3601 W. Thirteen Mile Road, Royal Oak, MI 48073. Telephone: (248) 551-1995. Fax: 9248) 551-2017. E-mail: vgokenbach@smtpgw.beaumont.edu.

Todd B. Taylor, MD, FACEP, 1323 E. El Parqué Drive, Tempe, AZ 85282-2649. Telephone: (480) 731-4665. Fax: (480) 731-4727. E-mail: tbtmd@cox.net.

Charlotte S. Yeh, MD, FACEP, Regional Administrator, Centers for Medicare & Medicaid Services, Boston Regional Office, JFK Federal Building, Room 2325, Boston, MA 02203. Telephone: (617) 565-1188. Fax: (617) 565-1339. E-mail: cyeh@cms.hhs.gov.

The final Emergency Medical Treatment and Labor Act rule was published in the Sept. 9, 2003, Federal Register and becomes effective Nov. 10, 2003.