Among other amendments proposed by CMS in the FY 2009 Hospital Inpatient Prospective Payment System (IPPS) Proposed Rule issued April 14, 2008, CMS proposes certain amendments, clarifications and technical changes to the regulations implementing the Emergency Medical Treatment and Labor Act (EMTALA), the so-called "patient antidumping rule." EMTALA was promulgated in 1986, as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Pub. L. 99-272.

EMTALA imposes an obligation on most Medicare-participating hospitals to provide screening and stabilizing treatment for any individual presenting to the hospital's emergency department with an emergency medical condition, regardless of insurance coverage or ability to pay. EMTALA further requires a hospital to transfer a patient to a specialized hospital should the patient require specialized treatment beyond the capabilities of the original transferring hospital. Section 1867(g) of the Social Security Act (Act) (the "specialized care requirement") imposes an obligation on a hospital with specialized capabilities or facilities (such as a burn unit, shock-trauma unit, neonatal intensive care unit, etc.) to accept an appropriate transfer of an individual who requires these specialized capabilities or facilities, if the specialized hospital has the capacity to treat the individual.

Proposed EMTALA Changes Relating to Hospital Inpatients
In the September 9, 2003 final rule implementing EMTALA, CMS takes the position that a hospital's obligation under EMTALA ends when that hospital, in good faith, admits an individual with an unstable emergency medical condition as an inpatient. In CMS's view, this position is consistent with Congress' intent to limit EMTALA's scope to those patients who need its protection most. CMS points out that inpatients are protected by other patient safeguards such as the Medicare Conditions of Participation and State malpractice laws.
The September 2003 rule, however, did not directly address the question of whether EMTALA's "specialized care" acceptance requirement applies to inpatients, i.e., whether EMTALA requires a specialized hospital to accept an appropriate transfer of a medically unstable inpatient from another hospital who requires specialized treatment in order to stabilize his or her emergency medical condition.
In the recent April 14, 2008 proposed rule, CMS proposes amending § 489.26(f) by adding a provision stating that a participating hospital with specialized capabilities cannot refuse to accept the appropriate transfer of an individual who has been admitted as an inpatient at another hospital, but who remains in an unstable condition and needs specialized care available at the hospital with specialized capabilities but not at the hospital where the patient is located, provided that the "accepting" hospital has the capacity to treat the individual.
CMS specifically is soliciting public comments on whether EMTALA should protect a hospital inpatient requiring transfer to a specialized hospital to stabilize his or her emergency medical condition if the inpatient had a period of stabilization after admission, but whose condition later became unstable.

Physician On-Call Requirements

CMS is proposing three modifications to the physician on-call requirements in the current EMTALA regulations.

CMS proposes relocating the requirement for hospitals to maintain an on-call list from the EMTALA regulations (§ 489.24) to the provider agreement regulations (§ 489.20). The rationale is that EMTALA does not address the on-call list, so this change will conform the regulations to the statutory language on provider agreement.
CMS proposes to allow hospitals to satisfy their on-call coverage obligation by participating in a formal community/regional call coverage program. At a minimum, the formal on-call coverage plan must include the following:
- A clear delineation of on-call coverage responsibilities, i.e., the plan must state when each participating hospital is responsible for on-call coverage;
- A definition of the specific geographic area to which the plan applies;
- A requirement that the plan be signed by an appropriate representative of each participating hospital;
- A provision to ensure that any local and regional emergency medical services system protocol formally includes information on community on-call arrangements.
- A requirement that hospitals participating in the community call plan must engage in an analysis of the specialty on-call needs of the community for which the plan is effective;
- A statement specifying that, regardless of which hospital has on-call responsibilities, it has an EMTALA obligation to provide a medical screening examination and stabilizing treatment within its capability for any individual presenting to its emergency department who seeks treatment, and to conduct an appropriate transfer to a specialized hospital if necessary; and
- A statement requiring annual reassessment of the plan.
CMS proposes that each hospital participating in the community call plan have written policies and procedures in place to respond to situations in which the on-call physician is unable to respond due to situations beyond his or her control.
CMS is not proposing that formal plans be pre-approved, but warns hospitals that if an EMTALA complaint investigation is initiated, the plan will be subject to review and enforcement by CMS.
CMS is soliciting public comments on these proposed elements of the formal community call plan, and whether to require formal plans to be approved by a governing state or local agency having authority over such plans. (3)
CMS proposes adding the phrase "during an emergency period" to § 489.24(a)(2), which currently refers to the non-applicability of the EMTALA provision in an emergency area. This change will conform the regulation to statutory language, and had been inadvertently omitted in the prior regulation.

Ober | Kaler's Comments: While most of the proposed "changes" to the EMTALA regulations are essentially technical in nature, the proposals related to the community/regional call coverage program create some potentially helpful opportunities for hospitals that have had difficulty complying with the on-call coverage requirements under the present rules. Hospitals are advised, however, to take advantage of the public comment period for these proposals, which ends on June 13, 2008, to alert CMS to the logistical challenges facing hospitals in the implementation of these programs.