October 2003 Bulletin

CMS publishes final EMTALA rules

By Kathryn M. Pontzer, JD

The Centers for Medicare and Medicaid Services (CMS) have published long-awaited final rules on the Emergency Medical Treatment and Active Labor Act (EMTALA). This law requires Medicare-participating hospitals to screen and stabilize individuals who present with emergency medical conditions.

The following overview highlights how CMS responded to some of the changes requested, or questions posed, by AAOS in our written comments to the proposed rule issued in May 2002. The AAOS Washington office will continue to analyze the final rule, consult with CMS staff and provide a more comprehensive review as necessary.

Prohibit 24-7 coverage when capacity cannot support. The proposed rule clarified that a hospital is not expected to provide 24-hour emergency coverage for a particular specialty. Rather, the intent is to give the hospital and the physicians the flexibility to determine together what is reasonable and safe based on the range of specialty and subspecialty care available without requiring physicians to work inordinate hours.

AAOS requested CMS to strengthen this language by adopting an affirmative rule prohibiting 24-7 on-call when a hospital’s capacity cannot support such coverage. The final rule added a new paragraph specifying that each hospital has the discretion to maintain an on-call list in a manner that best meets the needs of its patients. Physicians, including specialists and subspecialists, are not required to be on call at all times and the hospital must have policies and procedures to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control.

In comments accompanying the rule, CMS indicated that in determining hospital compliance, it will consider the number of physicians on staff, other demands on physicians, the frequency of on-call needs in a particular hospital and provisions that a hospital has made where certain specialists are not available. An example of this is exempting senior medical staff physicians from on-call, a practice CMS recognizes as reasonable, and provisions hospitals have made when an on-call physician is unable to respond.

To ensure 24-hour coverage, CMS suggested written transfer agreements between hospitals without certain specialty coverage at all times and those with a higher level of coverage, but stopped short of requiring such written agreements. CMS reiterated, however that, under current law, a Medicare-participating hospital with specialized capabilities or facilities that has the capacity but refuses to accept a transfer would be in violation of EMTALA and subject to penalties. CMS also suggested that hospitals should inform EMS staff of times when certain specialty care is not available.

In comments, CMS cautioned physicians against such practices where they may not be on an on-call list but may take calls selectively, noting that this would clearly be a violation of EMTALA. CMS also confirmed that a physician assistant could respond to call, but only at the direction of the on-call physician based on the medical needs of the patient and the capabilities of the hospital.

Provide more guidance on maintaining an on-call list in a manner that “best meets the needs of the hospital’s patient.” The final rule revised section 489.24(j) to say that an on-call list must be maintained in a manner that best meets the needs of EMTALA patients, as opposed to inpatients, depending on the capability of the hospital, including the availability of on-call physicians. A hospital is not required to provide specialty care above what is provided to inpatients, but the level of specialty care for EMTALA cases is not determined solely on the basis of inpatient care.

CMS also suggests in comments that no two hospitals are alike in determining the appropriate level of on-call coverage. Many factors can influence the level of on-call coverage including the overall supply of specialty physicians in the area, the extent to which hospitals depend on “itinerant” physicians from other areas and the availability of specialty care from nearby hospitals. CMS cautioned against overly prescriptive standards imposing unrealistically high standards for some hospitals but will continue to investigate the current situation.

What constitutes “circumstances beyond the physician’s control” in the requirement that the hospital must have policies and procedures to follow when a specialty physician cannot respond to an emergency call? This was not specifically addressed in the final regulations. However, it was evident from the discussion of comments received by CMS that AAOS was among several organizations commenting thatrequested more guidance in this area. AAOS will continue to pursue this issue with CMS.

Allow simultaneous call and elective surgery when on-call. In our comments, AAOS requested that CMS incorporate into final regulations conditions under which simultaneous call and elective surgery while on call would be permitted as delineated in a June 13, 2002 Survey and Certification Letter No. S&C-02-35. Section 489.24(j) was revised to state the conditions under which simultaneous calls and elective surgery are permitted. These include ensuring all hospitals involved are aware of the on-call schedule and have written policies and procedures to follow when a physician is simultaneously on call or scheduled for elective surgery and not available to respond. Comments to the final rule suggest that these polices may include both procedures for back-up on call physicians or an appropriate transfer plan.

Narrow on-call responsibilities to physicians’ usual scope of practice. AAOS requested that CMS clarify in final regulations that the on-call physician would be in the best position to determine whether he or she has the expertise to properly care for the patient and should be the one to determine whether another physician, with a particular subspecialty, who can more competently care for the patient, should be called in.

CMS did not agree that a revision to the regulation was needed and reiterated in comments that any disagreement between an emergency physician and an on-call specialist must be resolved by deferring to the emergency physician or other practitioner who has personally examined the individual and is currently treating the individual.

CMS further commented that physicians should only be required to respond to call for which they have hospital privileges, and it is the hospital’s responsibility to ensure physicians on the on-call list are granted whatever privileges “they would need” to furnish care in the facility.

Clarify follow-up care obligations. While not specifically addressed in the proposed rules as part of on-call requirements, AAOS requested a bright line rule be added to the final regulations that states that once a patient has been stabilized for discharge, EMTALA no longer applies, even if the patient requires relatively immediate follow-up care. Specifically we requested that the final rule provide illustrative examples to demonstrate the point of stabilization in orthopaedic cases, such as fractures. We sought clarification as to whether a prescribed plan of care, for situations such as in the case of application of a temporary splint to an injury, creates an obligation and an expectation that follow-up care will be provided, extending EMTALA obligations.

While CMS did not address AAOS’ request directly in the final rule, a response to queries on EMTALA obligations for dedicated emergency departments regarding follow-up care obligations would suggest no EMTALA obligations for physicians either. In the case of a patient returning to an emergency room for follow-up care, CMS reiterated that the hospital was only required to screen the patient and, if no emergency medical condition is found to exist, refer the patient to a physician’s office for further treatment. AAOS will continue to seek further clarification from CMS on EMTALA obligations when treating patients in the physician’s office, especially as to how EMTALA obligations apply to immediate follow-up needs.

Modify the proposed rule to end EMTALA obligations at inpatient admissions. As requested by AAOS and others, CMS did modify the final rule to clarify that EMTALA obligations ended at the point of inpatient admission, rather than at the point of stabilization, which could occur before or after the admission.

Further clarify that the preauthorization requirements addressed in the proposed rules apply to approval for both hospital and physician services. Section 489.24(d)(4)(ii) was revised to clarify that prior authorization policies—prohibiting authorization from a patient’s insurance company for screening or stabilization services prior to rendering such services—apply equally to hospitals, physicians and non-physician practitioners. Section 489.24(d)(4)(iii) was revised to clarify that both physicians and non-physician practitioners can contact a patient’s personal physician during the course of emergency treatment.

Kathryn M. Pontzer, JD, is deputy director of the AAOS Washington Office.

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