The Centers for Medicare & Medicaid Services (CMS) issued its final rule on the Emergency Medical Treatment and Labor Act (EMTALA) on August 28, 2003.  The Final Rule clarifies hospital obligations to patients who request treatment for emergency medical conditions and removes barriers to efficient emergency department operations. It became effective today.

According to CMS Administrator Tom Scully, "the rule will improve people's access to emergency care by encouraging physicians to be on call and by permitting hospitals to take the most effective steps for getting emergency treatment for patients who need it."
 

Changes include:

1. Revised definition of "emergency department" to include any hospital facility or department:   

        a) including off-campus sites licensed by the state as an emergency department

        b) that doesn't require an appointment for emergency care

        c) that provided urgent care for emergency medical conditions to at least 1/3 of its outpatient visits during the past year.

This means that non-emergency sites (physicians' offices, nursing homes) are now exempt from EMTALA. Non-emergency sites were never intended to be covered under EMTALA, but the original regulations were overbroad, necessitating this change.

2. Clarification regarding "on-call" physicians:

        a) Hospitals have more discretion to create on-call lists which best serve community needs.

        b) Physicians (esp. specialists) will be permitted to be on call simultaneously at more than one hospital, and to schedule elective surgery or other medical procedures during on-call times.

This doesn't solve the problem of a lack of physicians willing to be on-call, but does make it a little easier for a facility to create an on-call list from available providers. The changes do not address the fundamental issues limiting on call availability: medical malpractice liability, declining reimbursement and uncompensated care. 

3. Clarification regarding hospital-owned ambulances to allow integration with citywide and local community protocols for the benefit of the community.

This allows a hospital-owned ambulance to transport a patient to the closest appropriate hospital as per accepted practice.

4. Permits off-campus hospital departments to care for emergency patients without requiring that the patient be moved to the main campus - when this would not be best for the patient.

5. EMTALA does not apply to individuals who come to off-campus outpatient clinics that do not routinely provide emergency services.

6. EMTALA does not apply to individuals who receive scheduled, non-emergency hospital outpatient services - for example, routine laboratory tests.

7. EMTALA does not apply after a patient has been admitted (unless the admission is made in bad faith to avoid the EMTALA requirements) so long as the patient receives a proper medical screening exam prior to admission.  This provision was adopted to conform to the decisions of five circuits of the United States Courts of Appeals. 

Once the patient is admitted, the EMTALA obligation is satisfied.  This should make it harder for aggressive plaintiff attorneys to utilize EMTALA as a federal cause for malpractice based upon poor patient outcome, rather than as a result of financial discrimination - for which the law was intended.
 

8. EMTALA does not apply in a national emergency. Hospitals may transfer patients to other facilities, even such transfers would otherwise be violation of the EMTALA requirements.

"We believe this regulation will help to ensure that emergency departments and specialty physicians are there for those who need them," Administrator Scully said. It will "help hospitals focus less on unnecessary requirements and more on providing quality care to their patients."

The final rule was published in the September 9, 2003 Federal Register, and became effective November 10, 2003.

 

Link to the CMS Press Release        Link to our EMTALA Consulting Page

Link to the Final Rule (HTML)          Link to our EMTALA Seminar Page

Link to Final Rule (PDF file)