CMS Finalizes New EMTALA On-Call Options: Rejects Expansion of EMTALA to Acceptance of Inpatient

On July 31, 2008, the Centers for Medicare & Medicaid Services (CMS) released the final regulations for IPPS Fiscal Year 2009. Among the new rules relating to the Emergency Medical Treatment and Active Labor Act (EMTALA), CMS has adopted new rules for community on-call plans. CMS has also rejected its proposed expansion of the accepting hospital obligation to inpatients.

Community call plans

In the draft rules, CMS proposed guidelines for hospitals to fulfill their on-call obligations through the voluntary use of community call plans. The community plan concept involves two or more participating hospitals adopting a plan for coordinating on-call coverage in a specific geographic area. For example, a three-hospital plan could include designation for each facility to provide 10 days of coverage in one or more specialties in a particular month. As noted by CMS, if a patient presents to a participating hospital that is not providing coverage, the hospital could transfer the patient to the hospital with the designated coverage.

The new regulations require a formal plan that includes all of the following elements:

  1. A clear delineation of on-call responsibilities for each hospital participating in the plan
  2. A description of the geographic area covered by the plan
  3. The signature of an appropriate representative of each participating hospital
  4. Assurances that local and regional emergency medical system protocols include information on community call arrangements
  5. A statement reaffirming the obligation of each participating hospital to meet its EMTALA obligations for medical screening and stabilizing treatment with its capacity, and to comply with the EMTALA transfer requirements
  6. An annual assessment of the plan by the participating hospitals

In the preamble to the final rules, a number of commenters expressed concerns with antitrust liability for multi-hospital call arrangements. In response, CMS suggested that hospitals should direct their concerns to the Department of Justice. Hospitals that are considering community call arrangements should therefore consult with antitrust counsel for guidance on structuring the plan.

Accepting hospital obligations – inpatients

Under the existing EMTALA regulations, a hospital that has the capacity to provide specialized facilities or services (i.e., a higher level of care), must accept an appropriate transfer of an emergency patient who has an unstabilized emergency medical condition if the transferring facility does not have the capability or capacity to stabilize the patient's condition at the time of the transfer. In the draft IPPS 2009 rules, CMS proposed expanding the accepting hospital obligation to include the transfer of an inpatient admitted from the emergency department with an unstabilized condition that had been stabilized during the inpatient stay. CMS also requested comments on whether the proposed change should be expanded to other inpatients.

In the final rules, CMS rejected its proposal. CMS noted the submission of numerous comments opposing the proposal (including comments submitted by Davis Wright Tremaine on behalf of 96 hospitals with 22,000 beds). The comments include questions as to the legality and need for the proposal, the adverse impact on tertiary facilities and the emergency system, the administrative burden on hospitals to comply with the rule, the inconsistency of the CMS position and the lack of support from the EMTALA Technical Advisory Committee. CMS ultimately concluded the following:

After consideration of the comments, we believe that finalizing the policy as proposed may negatively impact patient care, due to an increase in inappropriate transfers which could be detrimental to the physical and psychological health and well-being of patients. We are concerned that finalizing our proposed rule would further burden the emergency service system and may force hospitals providing emergency care to limit their services or close, reducing access to emergency care.

In addition to rejecting its own proposal, CMS modified the accepting hospital obligation to provide that it does not apply to the transfer of an emergency patient who has been admitted to another hospital.

Conclusion

It has been 22 years since the enactment of EMTALA, and its interpretation by CMS continues to be a roller-coaster affair. The changes in the final IPPS 2009 rules provide greater certainty as to the limits of the accepting hospital obligation and provide hospitals CMS-approved flexibility for structuring on-call schedules in cooperation with other area hospitals. However, hospitals and physicians should expect future twists and turns in the rules and interpretations of the EMTALA obligations.