Recent Proposed Changes in EMTALA Regs Affecting On-Call Programs and Admitted Patients who Require Specialty Care: Get ready for more EMTALA requirements

On April 14 the federal government released new proposed additions to EMTALA regulations in the form of a Notice of Proposed Rule Making (NPR)* that in part arose out of the CMS designated Technical Advisory Group (TAG) recommendations. The TAG met over a period of more than two years, coming up with a list of recommendations, several of which have already been mandated. The NPR proposes two new rules: the first based on the TAG recommendations, the second based on a question previously thought settled, namely the end of the need for EMTALA compliance after a patient is admitted.

These two new sets of rules promise to significantly affect all hospitals and all admissions. What follows is a brief summary of the proposals.

Community call as proposed will not necessarily be subject to preapproval by CMS, but in a complaint investigation, a hospital’s community call plan would be subject to review and enforcement by CMS based on criteria yet to be announced. CMS has however, decreed that the minimal elements for a community call plan will be:

1. Clear delineation of on-call coverage responsibilities, (when, who, what)
2. Definition of the geographical area to which the plan applies
3. Community call plan signed by authorized representative of each participating hospital
4. Local and regional EMS protocols to formally include information on the community call arrangements
5. Participating hospitals would engage in an analysis of the specialty on-call needs of the community for which the plan is effective
6. Community call plan must include a statement specifying that for a patient arriving at a hospital not then the currently on-call hospital, that hospital still has an EMTALA obligation to provide an MSE and stabilizing treatment within is capability, and hospitals participating in community call must still comply with EMTALA regulations governing transfers
7. An annual reassessment of the community call plan by the participating hospitals

It is not clear if CMS will allow different geographical boundaries for different “communities”, i.e., consortia of hospitals and/or groups of specialists that reflect the reality of the increasingly limited and spotty availability of certain medical and surgical subspecialties. The EMTALA TAG could have been explicit about the practical definitions of these terms, but it is not in the language of the NPR. Undoubtedly more information about enforcement will emerge as the regulatory guidance that follows the final announcement of rule-making is handed down.

It is also not clear that CMS has considered the differences between on-call compensation at Hospital A versus Hospital B (if there are differences) and how such differences will affect physician availability at each hospital. Clearly, pay and distance traveled plus frequency and severity of call will result over time in a settling out of physician availability, that is, assuming physicians elect to participate in community call.

If one were to create a map of the availability of the most commonly local-residing and the most frequently-needed physicians as a function of distance from a set of hospitals in a given geographical region, then further if one were to layer on top of that the availability and distances for each successively less available specialty, it becomes clear that the tertiary and quaternary specialists are basically at large regional teaching facilities. Referral areas that funnel patients to these centers logically should be much larger geographically than for the broader base of the physician pyramid. How this will play out in the settings of hospitals that compete for patients in the same service area (i.e., hospitals that don’t have aligned interests, or in sandbox vernacular “don’t play well together”) remains to be seen. Furthermore, numerous health care service areas across the country remain balkanized by state borders.

Stay tuned for more on the topic of community call.

EMTALA still may apply after admission:
The other topic addressed in the NPR is what might be called the “Hot Potato Rule:"

CMS  has issued the second proposal for a new EMTALA rule, to wit: that if you have a patient with an unstable medical condition who is admitted to your hospital, and that patient for whatever reason remains unstable because of the need for specialty care unavailable at the admitting hospital, then CMS will say EMTALA continues to apply until such time as that patient’s condition is stabilized at a “specialty” hospital, assuming that the medical specialty hospital has the capacity (and the capability), and you can persuade them to accept your patient.

Who could blame  hospitals for looking at these patients like they are ‘hot potatoes’ potentially transferred successively to hospital after hospital in search of stabilizing care, because when all is said and done, it is the CMS regulators who will define what constitutes “stabilized.”

This particular proposal promises to further burden hospitals with a regulatory definition of how medicine is to be practiced and the meaning of specialty care. For example, if you are a remote facility that has a patient who has been admitted with, say, a medical condition such as chest pain and it turns out that the patient has an abdominal aneurysm and the admitting hospital does not have the capability to perform stabilizing surgery, then EMTALA will still hold, and any hospital that has such specialty capability and capacity must accept that patient in transfer whether it is enthusiastic about it or not.

Further, what if during transfer, another patient with a similar condition arrives at the destination hospital and the previously available capacity is now absorbed by the second patient, will not the destination hospital have an obligation to transfer the patient once again? These types of transfers could theoretically continue indefinitely. The EMS authorities will need to further restructure their instructions and authorizations for the physical movement of patients amongst various hospitals defined as “specialty” facilities.

The NPR is definitely a significant sea change in the EMTALA area. Whether it is a clarification or simplification of previously obscure regulatory intentions or the herald of only more questions remains to be seen. It will result in restructuring everything from the street level (i.e., EMS authorities and services, which will have to revise and update all their protocols to include a process to acquire and update information for their crews as to the best destinations for patients) up to regional groups of hospitals that may collaborate among themselves as they seek to determine the best source of care for individual patients, for example, who need neurosurgical care.

Departure from compliant behavior including adherence to all the previously mandated tenets of EMTALA will potentially expose hospitals and on-call physicians to investigations and sanctions.

Despite the risk of sanctions, the major on-going economic impact of EMTALA on healthcare facilities and their on-call staffs remains the “unfunded mandate” effects of these regulations. These proposed regulations come as more providers and hospitals face the accelerating squeeze of resistance to cost-shifting, which heretofore has been the main offset mechanism for such unfunded mandates.
How CMS responds to comments submitted during the NPR notice period will be key to its final implementation of these regulations.

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