EMERGENCY MEDICAL TREATMENT AND LABOR ACT (EMTALA) BRIEFING DOCUMENT ON THE CHANGES IN THE FINAL RULE

NOTE: This document addresses many of the provisions in the final rule published by the Centers for Medicare and Medicaid services (CMS). That rule took effect on November 10, 2003.

Website: www.cms/gov (search word-EMTALA) Effective November 10, 2003

ABSTRACT

The Emergency Medical Treatment and Labor Act (EMTALA) was originally enacted in 1986 to prevent “patient dumping,” i.e., the refusal to treat and transfer patients who are uninsured. The Act mandates that an appropriate medical screening examination be given to any person who presents to any department that is deemed as providing emergency or urgent care services. EMTALA obligations apply if the patient presents to a dedicated emergency department with an emergency medical condition. If a medical screening examination is performed and an emergency medical condition exists and the patient is: (i) treated and discharged; or (ii) admitted as an inpatient; or (iii) stabilized and transferred from the dedicated emergency department, then the EMTALA obligations cease to exist with respect to the dedicated emergency department that handled the patient.

The Centers for Medicare and Medicaid Services (CMS) has authority to enforce EMTALA and can impose financial penalties upon hospitals and physicians who do not comply. In addition, the Office of Inspector General of HHS has separate authority to impose sanctions for EMTALA violations. Violators may have their Medicare program participation terminated and may be sanctioned with penalties of up to $50,000 per violation.

EMTALA regulations have evolved over time. This document summarizes key issues in the Final Rule that became effective on November 10, 2003. Key issues include: prior authorization for treatment, definition of a dedicated emergency department, and applicability of the rule to inpatients, outpatients, and ambulances.

2 1. QUESTION: What criteria define a “Dedicated Emergency Department?” (DED)

ANSWER: A DED is any department or facility, regardless of whether it is located on or off the main hospital campus, that meets any one of the following requirements:

a) It is licensed by the State as an emergency department; or

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

c) It provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent or emergency basis without requiring a previously scheduled appointment. This is established based on a representative sample of patient visits within the preceding calendar year.

NOTE: DED includes labor and delivery units, psychiatric units, and urgent care centers.

2. QUESTION: May a hospital seek prior authorization of an individual requesting emergency medical care?

ANSWER: A hospital is prohibited from seeking prior authorization from the individual’s insurance company until after a medical screening examination and, if appropriate, initiation of treatment to stabilize an emergency medical condition.

However, a hospital may seek concurrent authorization while providing the necessary treatment for stabilization, as long as it does not delay treatment or affect the outcome of treatment based on the insurer’s authorization decision.

3 If the insurer requires authorization of post-stabilization care, the hospital is required to take all reasonable steps to contact the insurer within 30 minutes of stabilization. If the insurer does not respond to the hospital’s call within 30 minutes, this authorization is deemed granted.

3. QUESTION: Are providers required to provide a medical screening examination (MSE) to an individual outside of a DED?

ANSWER: a) On-campus areas: A MSE must be provided to anyone who requests the services, if the request is made on their behalf, or if a “prudent layperson observer” would believe based on the individual’s appearance or behavior that there is an emergency medical condition.

b) Off-campus areas: If the department is not a DED, the requirements of EMTALA do not apply. However, the department should call the local emergency medical service to transport the individual to the closest emergency department and provide assistance within its capabilities. Moreover, the department should have written policies and procedures for assessing emergencies and making referrals when deemed necessary.

c) A hospital or outpatient department is not obligated by EMTALA if an individual experiences an emergency medical condition while being treated during a scheduled outpatient service.

*** Campus is defined by CMS as the physical area immediately adjacent to the provider’s main buildings, as well as other areas and structures that are not strictly contiguous to the main buildings but that are located within 250 yards of the main buildings. This includes parking lots, sidewalks, and driveways. Private physician offices, rural health clinics, skilled nursing facilities, other entities that participate in Medicare separately from the hospital, and privately-owned businesses are NOT considered part of the campus.

4. QUESTION: How does EMTALA apply to inpatients and outpatients?

4 ANSWER: If an emergency medical condition is determined to exist, and the hospital admits that individual as an inpatient in order to stabilize the condition, the hospital’s EMTALA obligations end. Medicare defines “inpatient” as “a person who has been admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services.” However, in order for the EMTALA obligation to end, the hospital could not have admitted the patient in bad faith (i.e., to avoid EMTALA requirements). In addition, EMTALA does not apply to inpatients who are admitted for elective treatment. Although EMTALA obligations end, the hospital is still required to provide appropriate and necessary care following existing Medicare Conditions of Participation, state licensure, and professional responsibilities.

EMTALA obligations do not apply to individuals who come to the hospital outpatient department for non-emergent services, provided that the emergency medical condition occurred after non-emergent services had already begun.

EMTALA would apply if an emergency medical condition occurs before or following non-emergent, outpatient services. As with inpatient services, once the EMTALA obligations end, the hospital must comply with Medicare Conditions of Participation, state licensure, and professional responsibilities.

5. QUESTION: Who may perform the medical screening examination?

ANSWER: An examination to rule out an emergency medical condition can be performed by any qualified medical personnel (according to state health practitioner licensing laws and the hospital’s medical staff bylaws—e.g., nurse physician assistant, nurse practitioner). Verification of an emergency medical condition includes the individual’s statement that he is not seeking emergency treatment or the actual examination by the qualified medical personnel. However, the extent and quality of the examination must be adequate to ensure that an emergency condition could not reasonably exist based on the presenting medical condition.

6. QUESTION: Does EMTALA apply to an individual who comes to the DED and requests non-emergency services?

5 ANSWER: If an individual comes to a provider’s DED and a request is made for examination or treatment for a medical condition, but the nature of the request makes it clear that the medical condition is not of an emergency nature, the hospital is only required to perform a screening that is appropriate for anyone who would present in that manner. In most cases in which a request is made for medical care that clearly is unlikely to involve an emergency medical condition, an individual’s statement that he is not seeking emergency care, together brief questioning by qualified medical personnel, would be sufficient to establish that there is no emergency medical condition.

7. QUESTION: How does EMTALA apply to hospital-owned and operated ambulances (ground or air)?

ANSWER: The hospital does not have EMTALA obligations in the following circumstances:

 The hospital’s ambulances are operating under a community- wide EMS protocol that direct the ambulance to a location other than that hospital.

 When the ambulance is en route to a facility that does not own the ambulance.

 If an ambulance is operated at a physician’s direction who is not affiliated with or employed by the hospital that owns the ambulance.

 A hospital is on diversion status and directs ambulances away.

 When an inappropriate transfer occurs during a national emergency.

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