After 16 months of anticipation, the Centers for Medicare & Medicaid Services ("CMS") recently published finalized revisions to the Emergency Medical Treatment and Labor Act ("EMTALA"), effective November 10, 2003. CMS describes these revised regulations as "reiterations and clarifying changes" and "common sense improvements" intended to "ensure uniform and consistent application of policy and to avoid any misunderstanding of EMTALA requirements." CMS indicates that its goal is to preserve access to emergency care while removing some of the more burdensome provisions that had broadened EMTALA's reach beyond the emergency department.
SUMMARIES OF SELECTED REVISIONS
- Inpatients: Marking a significant change from the May 2002 proposal, the final rule provides that admission of an individual with an unstabilized emergency medical condition with the purpose of stabilizing that condition will satisfy the hospital's EMTALA obligation. However, if the hospital admits the individual as an inpatient in bad faith to escape its EMTALA obligation, the hospital may face consequences under both EMTALA and applicable Conditions of Participation. Under the original proposal, the hospital's EMTALA obligation would have continued as long as the condition remained unstabilized, even if the hospital admitted the individual as an inpatient.
The revised rule also clarifies that hospitals have no EMTALA obligation regarding inpatients admitted for nonemergency, elective diagnosis and treatment. Established inpatients, and individuals admitted from the ED after stabilization, also do not fall within EMTALA's purview — even if one suffers an apparent decline in his or her condition. In those instances, EMTALA cedes to other Conditions of Participation and common law, licensing, and professional obligations that govern determinations of stability and appropriateness of transfers or discharges of inpatients.
- Non-Emergency Services in the ED — CMS clarifies that EMTALA applies to any individual who comes to the ED, if a request is made by or on behalf of that individual for examination or treatment of a medical condition — whether or not explicitly for an emergency condition. The hospital generally can comply with EMTALA's screening requirement in such a case by relying upon the individual's statement that he or she is not seeking emergency care, coupled with brief questioning by qualified medical personnel to establish that no emergency medical condition exists. Thus, if an individual comes to the ED for previously scheduled or follow-up care, and it is clear that his or her condition is not emergent, the hospital still must perform a very brief medical screening exam appropriate for that individual's request for treatment. If an individual comes to the ED of the hospital at which his or her regular physician practices and asks to be seen for a nonemergent medical condition, once the determination has been made that no emergency medical condition exits the individual can be referred to the physician's office for care.
- Hospital-Owned Ambulances: A hospital generally has an EMTALA obligation for an individual transported in an ambulance owned by that hospital, whether or not that ambulance has returned to the hospital's campus. The revised rule clarifies the policy that if such a hospital-owned ambulance is following a citywide or local community protocol for responding to emergencies, the owner hospital will not violate EMTALA if its ambulance is redirected due to the community protocol to another, closer hospital capable of treating the individual.
- Registration at the Emergency Department: The revised regulation clarifies prior guidance that EMTALA permits hospitals to implement reasonable registration processes that include questions about insurance coverage, provided that those processes and questions do not delay provision of the medical screening exam or stabilizing treatment. The registration process also cannot "unduly discourage individuals from remaining for further evaluation."
- Off-Campus Departments: CMS has limited EMTALA's off-campus applicability to only those departments that qualify under the revised definition of a "dedicated emergency department" — one that is licensed as an emergency department, or held out to the public as providing emergency care without an appointment, or provides at least one-third of its outpatient visits for urgent care of emergency conditions. The revised rule replaces the previous off-campus standards with a new hospital Condition of Participation that requires hospitals' governing bodies to have written policies and procedures in effect at such non-emergency off-campus departments for appraisal and referral of individuals with possible emergencies. The revised rule also clarifies that this off-campus department obligation will only apply during the department's normal operating hours and within its normal staffing capability.
[Part II of this article will discuss CMS' revisions to on-call obligations and the definition of "comes to the emergency department." For comparison to the May 9, 2002 proposals, refer to the July/August 2002 issue of Healthcare Review.]
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