June 2002 Bulletin

CMS proposes EMTALA changes

By Robert E. Wanerman, JD, MPH

On May 9, 2002, the Centers for Medicare and Medicaid Services (CMS) published proposed revisions to the regulations that describe the obligations of hospitals and physicians under the Emergency Medical Treatment and Active Labor Act (EMTALA). While many of the proposed changes are small, they may reduce some uncertainty about the scope of the law, and reduce some of the friction between hospitals and staff about complying with the law.

The proposed regulations provide some clarification of the obligations that EMTALA imposes on physicians who provide call coverage for emergency departments. CMS proposes to amend the existing regulations to state that hospitals can maintain on-call lists that are within their capability and that meet the needs of their patients. It explained that it cannot mandate how frequently a physician can be on call. It also expressly rejected the notion that EMTALA requires either any minimum number of days per month that a specialty must be covered or that a particular staffing level obligates the hospital to provide specialty coverage 24 hours per day, 7 days per week.

In addition, CMS proposes to formally adopt, by regulation, its existing interpretation that when specialty coverage is not available, the hospital must have written policies and procedures to respond to the demand for that specialty. Even though CMS does not directly address the issue of compensation for call coverage, it indicates that the pressures on hospital budgets to provide on-call compensation was a factor in proposing a more flexible approach to the call requirement.

The proposed regulations also address several of the issues raised by EMTALA’s application to areas of a hospital outside of the traditional emergency department. For example, CMS proposes to narrow the scope of this portion of the law to on-campus departments or off-campus facilities that are staffed and equipped for evaluation and treatment of outpatients for emergency medical conditions. CMS would also eliminate the existing rule for off-campus facilities, which required screening and some level of treatment for any off-campus facility staffed by physicians and other practitioners.

CMS has solicited comments on the proposed revisions from interested parties; any comments must be received by CMS no later than July 8, 2002.

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