CMS takes major step to simplify EMTALA regulations

Agency removes off-campus requirements, but many questions remain, experts say

The Centers for Medicare & Medicaid Services (CMS) made good on its promise to simplify the onerous Emergency Medical Treatment and Labor Act (EMTALA) when it released proposed changes to the much-criticized patient anti-dumping regulation earlier this month. But experts see the agency’s effort as a step forward rather than a final solution.

"By and large, the proposed changes are an improvement," says Lowell Brown, a partner with Foley and Lardner in Los Angeles, who specializes in this area. "I think they are an intelligent effort to introduce some common sense into what had become a pretty nonsensical situation," he says. "The law had become fairly onerous and difficult and imposed a lot of unnecessary burdens."

The proposed changes are included in CMS’ hospital inpatient proposed rule, which was published in the Federal Register May 9. "There are some significant changes," says CMS spokeswoman Ellen Griffith, who adds that the goal of the revisions is to ensure that the intent of EMTALA still is met but with less burden on hospitals and, in many cases, better care for patients.

Brown says the most import change is the elimination of the off-campus requirements. "This is a big victory for hospitals because we had requirements that extended EMTALA to off-campus locations rather indiscriminately," he explains. Where physical therapy, radiology clinics, and similar facilities are concerned, EMTALA currently requires hospitals to have complex protocols in place for contacting the base hospital and transferring patients to neighboring facilities. Under the proposed changes, that would no longer be the case.

Steve Lipton, a partner with Davis Wright Tremain in Seattle, says he also is concerned about the extension of EMTALA for emergency patients who are admitted to the hospital in an unstable condition. What hospitals will face on the inpatient side, he says, is a subset of patients who come out of the emergency department in an unstable condition and then will be covered by EMTALA, he explains. That will raise several questions that are not addressed even in the new regulations.

According to Lipton, one important medical staff issue is whether an on-call physician is required to come to the hospital to perform a consultation for treatment. Brown says that getting physicians to participate in on-call panels is probably the most contentious issue regarding emergency departments and EMTALA in the whole country right now. Worse yet, the new regulations may only complicate the issue.

In short, EMTALA still is a very complicated regulation. Lipton says CMS has not done enough to explain how EMTALA applies to psychiatric patients. For example, he says, what happens if a patient is both medically and psychiatrically unstable when admitted to an acute-care hospital and only the medical condition stabilizes?

Hospitals must pay close attention to EMTALA for a variety of different reasons, says Brown. For one thing, the fines associated with EMTALA violations can be substantial. But he says other problems, such as bad public relations and the resources that are drained by having to respond to a Medicare termination action resulting from an EMTALA violation, can loom just as large. "It is very disruptive and very painful and a very rotten experience to go through," he warns.

The good news for hospitals where complex questions remain is that CMS has invited comment on several areas of the proposed regulation. Brown says CMS has signaled it is not exactly sure how to address certain issues and is likely to take the input it receives seriously.