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The Centers for Medicare & Medicaid Services (CMS) released the long awaited final rule modifying the interpretation of the Emergency Medical Treatment and Labor Act (EMTALA), frequently referred to as the "patient anti-dumping statute," on September 9, 2003. The changes made by CMS respond to many of the concerns the College has raised about EMTALA over the years. The final rule, which will become effective November 10, 2003, clarifies the existing law in several ways that are of particular importance to surgeons and attempts to clear up some of the prior misunderstanding and confusion surrounding the responsibilities of hospitals and physicians in providing emergency medical services.

When is an EMTALA Obligation Triggered?

An EMTALA obligation is triggered when an individual comes to a hospital's dedicated emergency department or presents on hospital property and requests an examination or treatment of a medical condition or a request is made on the individual's behalf. In the absence of such a request, EMTALA would apply if a prudent layperson observer would believe that an individual needs examination or treatment for a medical condition. A dedicated emergency department is defined as any department of the hospital (located on or off the main hospital campus) that is licensed by the state as an emergency department, is held out to the public as providing emergency services, or had provided at least one third of its outpatient visits for treatment on an urgent basis during the previous year. Under some circumstances, an EMTALA obligation is triggered when an individual is in an air or ground ambulance owned and operated by the hospital for purposes of examination and treatment of a medical condition.

CMS has clarified in the final rule that EMTALA does not apply to individuals who come to off-campus outpatient clinics that do not routinely provide emergency services or to those patients who have begun to receive scheduled, non-emergency outpatient services at the main campus of the hospital.

When does an EMTALA Obligation End?

When an EMTALA obligation is incurred, the hospital must provide an appropriate medical screening examination within the capability of the hospital's emergency department. If a determination is made that the individual has an emergency medical condition, the hospital must either stabilize the individual or make an appropriate transfer. CMS has clarified in the final rule that prior authorization may be sought from an insurance company as long as it does not delay screening and stabilization services.

An EMTALA obligation also ends once a patient, who has been seen and screened for an emergency medical condition in the emergency department, is admitted as an inpatient for hospital services (unless the admission is made in order to avoid EMTALA liability). A patient who requests treatment, without specifying that the condition is not an emergency, need only receive the appropriate screening to determine that he or she does not have an emergency medical condition.

What are the Changes to EMTALA Regarding On-Call Coverage?

Significant confusion exists over physicians' on-call responsibilities under EMTALA. The final EMTALA rule clarifies that a hospital's on-call list must be maintained in a manner that best meets the needs of the hospital's patients in accordance with the capability of the hospital, including the availability of on-call physicians. CMS has revised the EMTALA rule to explicitly acknowledge the limits on availability of on-call staff in many specialties and geographic areas. CMS states that it expects that these clarifications will help improve access to physician services for all hospital patients by permitting hospitals and their staffs local flexibility to determine how best to maximize their available physician resources.

In an attempt to dispel some of the misconceptions regarding EMTALA's on-call requirements, the final rule clarifies the following:

• A hospital may permit simultaneous on-call services at different hospitals and the scheduling of elective surgery by on-call physicians, but must have policies in place to follow when a specialist is not available.
• CMS does not set requirements on how frequently a hospital's staff of on-call physicians is expected to be available to provide on-call coverage. Such determinations are to be made by the hospital and the physicians on its on-call roster.
• There is no predetermined "ratio" used to identify how many days a hospital must provide medical staff for that particular specialty. In particular, CMS has no rule stating that whenever there are at least three physicians in a specialty, the hospital must provide 24-hour/7 day coverage in that specialty ("rule of three").

A hospital must have policies and procedures in place to follow when a particular specialty is not available or the on-call physician is unable to respond due to situations beyond his or her control. CMS has suggested that a hospital's contingency plan for such situations might include an appropriate transfer, arranging the availability of another physician (such as a chief of staff for the necessary service) who would be the on-call physician's back-up in the event he or she was unable to respond and notifying local emergency medical services that the hospital's ability to treat certain patients is compromised.

How is EMTALA Enforced?

EMTALA enforcement is driven by reports of suspected EMTALA violations. When CMS receives a report of an EMTALA violation, the CMS regional office sends state surveyors to conduct an investigation. Generally, in determining ETMALA compliance, CMS will consider all relevant factors and look for specific patterns of care that could point to EMTALA violations.

Hospitals that fail to comply with EMTALA-mandated responsibilities can have their Medicare participation terminated and can be subject to civil money penalties of up to $50,000 per violation. If a physician on a hospital's on-call list is called by the hospital to provide emergency screening or treatment and either fails or refuses to appear within a reasonable period of time, that physician may be in violation of EMTALA and would also face fines of up to $50,000 per violation. Patients who have suffered physical harm and hospitals that believe they have suffered financial loss as a result of an inappropriate transfer also have a private right of action against hospitals that violate EMTALA.

Additional information regarding EMTALA, including a link to the final EMTALA rule, can be found on the College's Web site at http://www.facs.org/ahp/views/emtala.html

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by the American College of Surgeons, Chicago, IL 60611-3211