EMERGENCY MEDICAL SERVICES; HEALTH FACILITIES; HOSPITALS;

EMERGENCY MEDICAL SERVICE; HOSPITALS;

You asked for an explanation of recently issued federal regulations governing hospital emergency services and whether they would require any changes in state law.

SUMMARY

The federal Emergency Medical Treatment and Labor Act (EMTALA) requires any hospital that participates in Medicare and provides emergency services to provide (1) an appropriate medical screening examination to anyone who comes to its emergency department asking for treatment and (2) necessary stabilizing treatment or transfer to another medical facility if the examination reveals an emergency medical condition. Since all Connecticut hospitals participate in Medicare and provide emergency services, EMTALA applies to them.

The federal Centers for Medicare and Medicaid Services (CMS), which administers and enforces EMTALA, issued new regulations on September 9, 2003. They (1) revise key definitions of what constitutes a hospital emergency department, where emergency services must be offered, and to whom; (2) clarify the circumstances under which hospitals must ensure specialty physician on-call coverage; and (3) make other minor changes. The regulations take effect November 10, 2003. Hospitals that fail to comply with EMTALA may be terminated from Medicare participation and subject to civil penalties up to $ 50,000 per violation.

Connecticut has few, if any, laws governing hospital emergency services requirements. Department of Public Health officials believe that the new EMTALA regulations essentially codify current practice and require no statutory or regulatory changes.

NEW EMTALA REGULATIONS (68 FR 53222, et seq. )

Definition of Emergency Department

Under the prior regulations, EMTALA obligations began when a person came to the “emergency department” and requested an exam or treatment. The new rules apply to someone who presents at a “dedicated emergency department. ” CMS defines this term to mean any on- or off-hospital campus department or facility that meets one of the following criteria:

1. it is licensed by the state as an emergency room or department;

2. it is held out to the public (by name, signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a scheduled appointment; or

3. based on a representative sample of patient visits during the previous year, the department or facility provides at least one-third of all of its outpatient visits for treating emergency medical conditions on an urgent basis without requiring a scheduled appointment.

CMS says this definition expands EMTALA’s coverage to include not only what is generally considered to be a hospital’s emergency room, but also other departments, like labor and delivery or psychiatric units, that meet the one-third criteria. CMS also says the definition covers hospital urgent care centers that hold themselves out to the public as places that provide care for emergency medical conditions. It rejected a request to exclude such centers, stating, “We believe it would be very difficult for any individual in need of emergency care to distinguish between a hospital department that provides care for an ‘urgent need’ and one that provides care for an ‘emergency medical condition. ’ ”

Emergency versus Nonemergency Services

EMTALA requires hospitals to provide an appropriate medical screening examination for everyone who comes to an emergency department with a medical condition. The new regulations distinguish between people who present for emergency as opposed to nonemergency services. Like the prior rules, they apply to hospital facilities and outside areas within 250 yards of a hospital building, except for areas that are not part of the hospital such as physicians’ offices, restaurants, shops, or other nonmedical facilities.

Under the new rule, if a person presents at the hospital campus seeking emergency medical treatment, the hospital has an EMTALA obligation to screen and stabilize him. If he does not make a verbal request for services, the hospital has an EMTALA obligation if a “prudent layperson” would consider the patient’s behavior to indicate he would ask for emergency treatment if he could.

The new rules still require qualified medical personnel to screen everyone who presents at the emergency department to determine if they have an emergency condition. But, if someone fails to make it clear that his condition is not an emergency, the new rules state that this screening is only to determine if he has an emergency medical condition. CMS states that this exam should be appropriate to the situation and may be limited to (1) the individual’s statement that he is not seeking emergency care and (2) brief questioning by a qualified medical person sufficient to establish that he does not have an emergency condition. Once the hospital determines the person does not need emergency services, its EMTALA obligation ends.

The new rules also provide that EMTALA obligations do not apply to someone who has begun to receive outpatient services for a condition other than the one that triggers an emergency medical condition (e. g. , someone who has an asthma attack during physical therapy). They also specify that EMTALA obligations end when a person is admitted for inpatient care.

Patients at Off-Campus Hospital Departments

Under the old regulations, EMTALA applied to all off-campus, provider-based hospital outpatient departments. The new regulations limit hospitals’ EMTALA obligations for off-campus facilities to dedicated emergency departments, as defined above. The hospital’s governing board must adopt written policies and procedures to deal with people who present at nonemergency off-campus departments looking for emergency services.

On-Call Obligations

In response to national concern over hospitals’ ability to obtain on-call specialist coverage for emergency departments, CMS clarified some of the rules governing hospitals’ on call lists. The principal change appears to be that hospitals are not required to have coverage for every specialty 24 hours a day.

Former EMTALA regulations required hospitals to have on-call rosters of doctors, including specialists, but did not describe their specific obligations for on-call coverage. CMS guidelines stated that hospitals had to maintain on-call lists in a way that best meets patient needs and could consider the availability of physicians to take calls. The new rules essentially reaffirm these guidelines, according to CMS. They give a hospital discretion in maintaining on-call lists so as best to meet the needs of patients who are receiving services under EMTALA and in accordance with the hospital’s capability and the availability of on-call physicians.

The regulations specify that physicians, including specialists and subspecialists, need not be on call at all times, but they require hospitals to have back-up lists for use when those on the main list are not available. They must have written policies and procedures to follow to provide that emergency services are available when (1) a particular specialty is not available; (2) the on-call doctor cannot respond because of a situation beyond his or her control; (3) an on-call doctor, with the hospital’s permission, is scheduled to perform elective surgery while on call; or (4) a physician, again with the hospital’s permission, has simultaneous on-call duties for other hospitals.

Ambulances

Under prior regulations, EMTALA applied to an emergency patient in a hospital-owned ambulance or helicopter but not to a patient in an ambulance not owned by the hospital, unless it was on hospital property. The new rule exempts hospital-owned ambulances from EMTALA if they are integrated with a community emergency medical service (EMS) network that directs it to transport the individual to a hospital other than the one that owns it (e. g. , the closest available hospital).

Prior Authorization

EMTALA regulations explicitly prohibit hospitals from delaying screening or stabilization services to verify an individual’s insurance status or payment method. The new rules allow hospitals to seek other information about the individual and to seek authorization for services as long as doing so does not delay the required screening or stabilization process. They apply equally to hospital, physicians, and nonphysician services.

EFFECT ON CONNECTICUT LAW

Unlike some other states, Connecticut does not have extensive EMTALA-like statutes or regulations governing hospital emergency services. The only state regulation governing emergency services requires each general hospital to provide adequate care at all times for people with acute emergencies (Conn Agency Regs. 19-13-D3(j)). Consequently, the new EMTALA regulations will not require statutory or regulatory action according to Department of Public Health officials. These officials say that the new regulation “codifies existing practices. ”

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