By Seema Mohapata, Sidley Austin Brown & Wood, LLP
On May 13, 2004, the CMS Survey and Certification Group published Revised Interpretive Guidelines clarifying the responsibilities of Medicare participating hospitals under the Emergency Medical Treatment and Labor Act (EMTALA). (See 42 CFR § 489.24 & 489.20 (l), (m), (q), & (r).) Now effective, these guidelines are meant to assist regional offices and state survey agencies in consistently determining whether providers are complying with EMTALA.
The guidelines emphasize that no physician, including specialists and subspecialists, is required to be on call at all times. EMTALA does not confer specific requirements for how many days a given specialty must provide on-call coverage or how frequently on-call physicians must be available. Instead, surveyors are to assess the on-call coverage by considering the number of physicians on staff, other demands on the physicians, the frequency with which patients typically require services of on-call physicians, and hospital policies for times when no physicians are able to respond.
Physicians may be on call at more than one hospital simultaneously, but hospitals must have policies and procedures to follow when an on-call physician is unable to respond. CMS suggests that such policies might include procedures for back-up on-call physicians or an appropriate EMTALA transfer.
Although all physicians on call are considered available at the hospital, the treating emergency physician may decide whether or not an on-call physician must come to the dedicated emergency department (DED) to physically assess patients. However, if an on-call physician is seeing scheduled patients in his or her private office, a treating emergency physician generally may not refer emergency cases to the office unless it is medically appropriate and the office is hospital-owned and on the hospital campus. Surveyors must determine whether a patient has been appropriately moved from the hospital to the physician's office by asking whether all persons with the same medical condition are moved in such circumstances, there is a bona fide medical reason to move the patient, and appropriate medical personnel accompanied the patient. Generally, however, the on-call physician must come to the hospital to examine the individual when requested. Failure to come to the hospital when called (or repeated requests that a patient be transferred to another hospital where the physician can treat the individual) may constitute an EMTALA violation.
The on-call physician may decide not to present in person, but rather, based on the individual's medical need, hospital resources, and applicable hospital regulations, direct a nonphysician practitioner to present to the DED in the on-call physician's place. Regardless, however, the on-call physician retains responsibility for the individual.
Under EMTALA, on-call physicians may use telemedicine to further evaluate an individual or stabilize an EMC. However, telemedicine is appropriate only when on-site physical assessment is impossible because of the individual's geographic location.
Physicians may violate EMTALA if they refuse to be included on a hospital's on-call list or deny other patients (including those with questionable ability to pay) but take calls selectively due to established physician-patient relationships. Hospitals permitting such behavior may violate EMTALA by encouraging disparate treatment. However, allowing certain medical staff members, such as senior physicians, to be exempt from the call schedule does not, by itself, violate EMTALA.
A hospital may not violate EMTALA if an on-call physician does not fulfill his obligation to the hospital but another physician in that specialty is able to assess the individual. However, the physician who initially agreed to take the call may have violated the regulation.
When assessing EMTALA compliance, surveyors will review hospital policies or medical staff bylaws with respect to the on-call physician's response time (stated in minutes), and make note of the time of notification and the response (or transfer) time. Hospitals are responsible for ensuring that an on-call physician responds within a reasonable period; physicians who fail to arrive on time may be in violation of EMTALA.
Medical staff bylaws or policies and procedures must define an on-call physician's responsibility to respond, examine, and treat patients with an EMC and establish procedures to follow when a particular specialty is not available or the on-call physician cannot respond. For example, hospital policies must establish an alternative plan in the event that a physician is performing surgery while on call. The only case in which an on-call physician may not perform surgery applies to critical access hospital staff, who are reimbursed for being on call and therefore cannot provide services at any other provider or facility. However, a hospital may have an internal policy prohibiting elective surgery by on-call physicians.
Definition of stable
After determining that an emergency medical condition (EMC) exists, EMTALA obligates a hospital to provide stabilizing treatment within its capacity regardless of an individual's payer source or financial status. Under EMTALA, an individual is deemed stabilized once a treating physician or qualified medical personnel (QMP) determines, with reasonable clinical confidence, that the EMC has been resolved. Subsequent to resolving an EMC, the physician or QMP has two options: (1) discharge the patient, with follow-up instructions, or (2) admit the patient for continued care.
Psychiatric patients are considered stable once they are protected and prevented from injuring or harming themselves or others. However, although administering chemical or physical restraints to transfer a psychiatric patient may offer temporary stabilization, the underlying condition may continue. CMS advises practitioners to exercise caution in determining whether a medical condition is in fact stable after administering restraints.
Ultimately, a hospital's EMTALA obligation ends when a physician or QMP decides (1) no EMC exists, although the underlying medical condition may persist, (2) an EMC exists and the individual was appropriately transferred, or (3) an EMC exists and the individual was admitted to the hospital for further stabilizing treatment.
Determining what constitutes a DED
Currently, EMTALA requires hospitals with a DED to properly screen, stabilize, and/or transfer individuals that present to a DED requiring care for a medical condition. Regardless of whether the individual presents to a facility on or off the main hospital campus, the facility will be considered a DED for EMTALA purposes if it is licensed by the state in which it is located (under applicable state law) as an emergency room or emergency department, is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for EMCs on an urgent basis without requiring a prior appointment, or during the preceding calendar year, in at least one-third of all visits (based on a representative sample), it provided care for EMCs on an urgent basis without requiring a prior appointment. These provisions therefore include unscheduled ambulatory patients who present to units, such as labor and delivery, where patients are routinely evaluated and treated for EMCs.
If a hospital admits an individual in good faith, regardless of whether the individual has been stabilized, the hospital has fulfilled its EMTALA obligation. However, if a hospital used inpatient admission as a means to avoid EMTALA requirements, a surveyor may consider the hospital liable under EMTALA. Surveyors should expect admission to be documented in a patient's chart and medical record at the time a physician (or other practitioner authorized by hospital policy) signed and dated the order. An individual is considered "admitted" once he or she is to receive inpatient services with the expectation of remaining in the hospital at least overnight.
Although an EMTALA obligation may end when an individual is admitted, the hospital continues to have a responsibility to meet that patient's emergency needs in accordance with hospital conditions of participation (CoPs), which protect inpatients and do not permit hospitals to discharge or transfer patients inappropriately. Relevant CoPs in these situations would be emergency services, governing body, discharge planning, quality assurance, and medical staff.
If questions exist as to whether a hospital admitted a patient to avoid EMTALA obligations, the surveyor must consult with regional office personnel to determine whether the hospital CoPs should be surveyed. The regional office would then review the survey for any EMTALA violation.
No delay in examination or treatment to inquire about payment status
Hospitals should not delay screening or necessary stabilizing treatment due to inquiries or verifications concerning an individual's ability to pay for care. However, hospitals may follow reasonable registration processes as long as these inquiries do not delay screening or treatment or unduly discourage individuals from seeking further evaluation. Reasonable registration processes might include collecting demographic information, insurance information, and other contact information. In cases involving minors requesting examination or treatment for an emergency medical condition (EMC), hospital personnel should not delay the medical screening exam (MSE) by waiting for parental consent. Hospital personnel should wait for parental consent only if screening determines that no EMC exists. If a screening delay was due to an unusual internal crisis or inability of the hospital to provide appropriate screening, surveyors may interview hospital staff to make a fact-based determination about EMTALA compliance.
Recipient hospital responsibilities
Under EMTALA, hospitals (including rural regional referral centers) with specialized capabilities have a duty to accept patients who require special services as long as the recipient hospitals have the capacity to treat the patients. EMTALA does not require hospitals with specialized capabilities to accept transfers from hospitals located outside the United States. If a patient does not require specialized services, the recipient hospital is under no EMTALA obligation unless the individual presents to the hospital.
Lateral transfers (between facilities of comparable resources) are not sanctioned under EMTALA because they would ordinarily not offer benefits in care for the patient. However, if the sending hospital has the capability but not the capacity, lateral transfer may be beneficial.
The capacity of a recipient hospital to care for additional patients is not reflected solely in the number of patients occupying a specialized unit, the number of staff on duty, or the amount of equipment on the hospital premises. Rather, if a hospital has generally accommodated additional patients by moving patients, calling additional staff, or borrowing equipment, it has demonstrated a capacity to serve patients in excess of its occupancy limit. If a recipient hospital fails to meet its responsibilities under EMTALA, surveyors should obtain a copy of the patient's medical record from the transferring facility.
The 72-hour rule
Currently, EMTALA requires patients with an EMC to be stabilized prior to transfer. When a hospital subject to EMTALA suspects that it may have received an improperly transferred patient, the incident must be reported within 72 hours of its occurrence. Failure to report an improper transfer may cost a hospital its Medicare provider agreement.
To assess EMTALA compliance, surveyors must determine whether the recipient hospital knew or suspected that the individual had not been properly transferred. Relevant evidence is available through medical records and interviews with the individual, family members, or staff. In reviewing the record, surveyors should look for evidence that: (1) the recipient hospital agreed in advance to accept the transfers; (2) the recipient hospital received appropriate medical records; (3) all transfers included qualified personnel, transportation equipment, and medically appropriate life-support measures; and (4) the hospital had available space and qualified personnel to treat the patients.
For more information
Revised Emergency Medical Treatment and Labor Act (EMTALA) Interpretive Guidelines
About the author
Seema Mohapatra is an associate in the Chicago office of Sidley Austin Brown & Wood LLP. Questions may be directed to her colleague, William Sarraille, at firstname.lastname@example.org
Publication Date: Wednesday, June 16, 2004