As noted in Part One of this article, the revisions to the Emergency Medical Treatment and Active Labor Act ("EMTALA") went into effect on November 10, 2003. The federal Centers for Medicare & Medicaid Services ("CMS") intend for these revisions to clarify and simplify the practical, day-to-day application of EMTALA.
SUMMARIES OF SELECTED REVISIONS, continued
- "Emergency Department": A hospital's EMTALA obligation is triggered whenever an individual comes to the emergency department and requests evaluation or treatment for a medical condition. CMS has now narrowed the definition of "emergency department," effectively eliminating the obligation for outpatient and off-campus departments to meet the same level of compliance as traditional emergency departments. The new definition of "dedicated emergency department" broadly includes any department or facility of the hospital, whether on or off the main hospital campus, that:
- is licensed by the state as an emergency room or emergency department;
- is held out to the public as providing care for emergency medical conditions without requiring an appointment; or
- during its previous calendar year, has provided at least one-third of all its outpatient visits for the treatment of emergency medical conditions on an urgent basis.
Thus, the new definition of "dedicated emergency department" retains within EMTALA's scope specially staffed and equipped areas, such as labor and delivery or acute psychiatric care centers, or other hospital departments held out to the public as appropriate sites for non-appointment-based emergency medical services. In addition, the revised EMTALA regulations apply to on-campus provider-based departments, but not necessarily to all on-campus provider-based entities, potentially excluding entities such as physician offices, skilled nursing facilities, and others that were (arguably) previously bound by EMTALA.
- Requests for Emergency Treatment in Other Areas on Campus: As was the case under the prior EMTALA regulations, hospitals must provide medical screening examinations and any necessary stabilizing treatment to individuals who, in trying to access emergency care, come to any non-emergency department on-campus area - including sidewalks, lobbies, etc. - and request examination or treatment for potential emergency medical conditions. Under the new revisions, however, hospitals need not maintain screening or treatment capabilities in areas other than the dedicated emergency department. Instead, the hospital must establish protocols for emergency department staff to assume the care of an individual, if he or she presents at an on-campus area that does not have appropriate emergency screening or treatment capabilities.
CMS also clarified that EMTALA does not apply to outpatients who come to the hospital for previously scheduled appointments and develop potential emergency medical conditions after beginning encounters with their practitioners. Such patients have previously established relationships with the hospital, and thus have not come to the hospital specifically for evaluation and treatment of the emergency condition. Other Medicare Conditions of Participation, not EMTALA, will obligate the hospital to provide appropriate care under those circumstances.
- On-Call: CMS, both in the revised regulations and in June 2002 Program Memoranda, clarified that hospitals are not required to have on-call specialist coverage for the emergency department 24 hours a day, 7 days a week, but rather should maintain on-call lists in a manner that best meets the needs of individuals who receive EMTALA services within the hospital's available resources, including the availability of on-call physicians. CMS revised its prior policy, in order to maximize patient access to care, to allow specialists to be on-call for multiple hospital emergency departments simultaneously in the same geographic area, provided all hospitals involved are aware of the simultaneous on-call schedule, as each hospital independently has an EMTALA obligation. The revised regulations also allow physicians to schedule elective surgery and other procedures while on-call for an emergency department; however, those on-call physicians must arrange for back-up coverage should their simultaneous activity preclude them from responding to an emergency department call.
Hospitals can elect to prohibit such simultaneous call coverage or concurrent scheduling as a matter of staff policy. Hospitals also must have written policies and procedures for providing emergency services, when a particular specialty is not available because of gaps in coverage, simultaneous commitments of the on-call physician, or circumstances beyond the on-call physician's control.
It is important to keep in mind that, in evaluating EMTALA compliance, CMS does not use a predetermined ratio of specialists to decide whether a hospital's on-call coverage is adequate, but considers all relevant factors, including the number of physicians on staff, other demands on those physicians, the frequency with which the hospital's patients require specialist services, and provisions the hospital has made for when no on-call specialist is available.
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