EMTALA

Recent Changes to EMTALA Requirements for Provider-Based Entities

by Ralph L. Glover II, J.D., LL.M.

On April 7, 2000, the Health Care Financing Administration (HCFA) released its Final Rule for the Prospective Payment System for Hospital Outpatient Services. Within the document, HCFA included regulations for facilities seeking designation as a provider-based entity. These regulations included EMTALA guidelines that must be followed by off-campus hospital-based outpatient departments. As suggested in my article entitled "The Effect of EMTALA on Provider Based Entities" published in the January/February issue of Common Sense, EMTALA will apply to off-campus hospital-based departments. The only type of off-campus facility to which EMTALA applies is one that has been designated as an outpatient department of the hospital by HCFA. This type of facility may include certain diagnostic facilities, clinics, primary care centers, outpatient therapy facilities, and urgent care facilities. EMTALA will not be imposed on other provider-based entities such as skilled nursing facilities (SNF) or Home Health Agencies (HHA) because they are distinct Medicare providers in their own right. They have their own Medicare provider numbers separate from the Hospital, whereas, an off-campus hospital-based department would not.

If an individual presents to any facility that is located off of a hospital's main campus and that facility has been determined to be a department of the hospital, then the hospital must provide, within its capabilities, an appropriate emergency medical screening examination and subsequent stabilizing treatment or conduct an appropriate transfer in keeping with EMTALA.

The new requirements do not suggest that every off-campus hospital-based department must duplicate the emergency services provided at the main hospital, however, they do require that the hospital assume the responsibility under EMTALA for that individual's emergency medical screening. In some cases, the individual may need to be taken back to the main hospital for a full screening and/or stabilizing treatment.

Q: When an individual presents to an off-campus hospital-based department, what standards of patient care will be applied to the facility?

A: Because the off-campus facility is considered to be a part of the hospital, care to the individual must be provided within the "capabilities" of the hospital. This is not to say that emergency facilities must be provided at every off-campus site, however, the ability to screen and treat the individual will be based on the hospital as a whole. Therefore, patients may, in some cases, need to be transported back to the main hospital or transferred to another facility, in keeping with the appropriate transfer provision, for further treatment.

Q: Do the EMTALA transfer requirements apply to transfers from off-campus hospital-based outpatient departments?

A: Transporting a patient from an off-campus hospital-based department to the main hospital will not be considered a transfer under EMTALA, therefore, the strict transfer requirements will not apply. HCFA considers an off-campus hospital-based facility to be a part of the hospital, and because intra-hospital transportation of a patient is not considered to be a transfer under EMTALA, transporting an individual from the hospital-based entity to the main hospital will not be considered a transfer.

However, should the hospital-based facility need to transfer the individual to another unrelated hospital, the "appropriate transfer" requirements must be followed.

Q: Can a hospital-based clinic simply dial 911 or the local EMS emergency number for individuals presenting to the clinic with emergency medical conditions?

A: Based on the EMTALA transfer guidelines, it is not appropriate for the hospital-based facility to simply dial 911 and rely on EMS to assume responsibility of the patient. The hospital must accept responsibility of the patient and either transport the patient back to the main hospital or conduct an appropriate transfer to another hospital.

Q: Are there ever situations when it would be appropriate for the off-campus facility to rely on EMS to take control of the patient?

A: The new regulations do provide that in those situations where the main hospital does not have the specialized capability or facilities necessary to treat the individual, or the individual's condition is deteriorating so rapidly that transport to the main campus would significantly jeopardize the life or health of the individual, then the main hospital's obligation to assume responsibility of the screening and treatment of the individual is discharged.

An example of this would be for an individual who presents to Hospital A's off-campus primary care clinic with an emergency medical condition such that time is of the essence. Hospital B is 1 mile away while Hospital A is 7 miles away and would take significantly longer to reach due to traffic. Because the individual needs immediate medical attention and a transfer to Hospital A would significantly jeopardize the health of the individual, an appropriate transfer to Hospital B is justified.

Q: Are there any requirements that off-campus hospital-based departments have certain policies or protocols in place to handle emergency medical conditions?

A: Yes, each off-campus hospital-based department, during its regular hours of operation must implement the following procedures for:

• Assessing whether an emergency medical condition exists by providing an appropriate screening and necessary stabilizing treatment at the off-campus facility;
• Transporting the individual to the hospital's emergency department for screening and stabilization; or
• Providing an appropriate transfer to another hospital in keeping with the transfer requirements.

Specifically, there must be provisions for direct contact between the off-campus facility and emergency personnel at the hospital, to obtain advice and direction regarding the handling of potential emergencies, and to obtain prompt medical transport of the individual to the main hospital or to another hospital if an appropriate transfer has been conducted. Another option provided in the new regulations is for the hospital to dispatch medical practitioners from the hospital to the off-campus department to provide screening and stabilizing treatment. This option seems unrealistic, however, because it may necessitate a hospital staffing additional personnel in the emergency department to answer such calls.

Q: Are there any personnel requirements for the staffing of off-campus hospital-based departments?

A: Yes, while the regulations clearly state that there is no requirement that each off-campus hospital-based department must have a fully equipped and staffed emergency department at each location, there are certain requirements as far as the training of personnel located at these facilities.

• For off-campus facilities that are routinely staffed by physicians, RNs, or LPNs, these personnel must be trained and given appropriate protocols for handling emergency situations. At least one individual on duty during the regular operating hours of the facility must be designated as the individual to initiate appropriate medical screenings of individuals seeking emergency medical care.
• If the off-campus facility is one that is not routinely staffed by physicians, RNs, or LPNs, the facility's personnel must be given protocols that direct them to contact emergency personnel at the main hospital for direction in handling emergency situations. If appropriate, and the main hospital has the capability to treat the patient, transportation back to the main hospital must be arranged or an appropriate transfer to another hospital must be conducted.

Unfortunately, the additional guidelines create as many questions than they answer. It is apparent that the hospital is to assume the responsibility to screen and treat an individual who presents to an off-campus hospital-based department with an emergency medical condition. If the hospital has the capabilities to screen and treat the individual, the hospital may have to transport the individual to the hospital for care if necessary. However, there is little guidance as to situations when there is an EMS program in place and the hospital has no other means of transporting patients other than relying on the EMS. If, based on EMS protocols, the patient should be taken to a hospital unrelated to the main hospital, it is unclear whether it will be an EMTALA violation if the main hospital had the capabilities to treat the individual and the individual's condition was not such that his/her life would be jeopardized by transporting the individual to the main hospital.

Similarly, if the hospital does not call EMS, but relies on its own transportation to bring the patient to the hospital in keeping with the new EMTALA requirements, should the patient's condition worsen causing harm to the patient, could the hospital be considered negligent by not calling EMS to transport the patient to a hospital based on EMS protocols?

The answers to these questions are not absolutely clear, however, from a policy standpoint, the decision should probably be based on the action that is in the best interests of the patient. If, based on the best interests of the patient, the patient should go to an unrelated hospital due to his/her condition or EMS protocols, then an appropriate transfer should be conducted in keeping with EMTALA requirements. Whether the main hospital has the capabilities to treat and transportation options available to the main hospital will also influence the decision of where to transport the patient.

CONCLUSION

The new EMTALA requirements for off-campus hospital-based departments do not take effect until October 10, 2000. This should provide hospitals with time to implement the appropriate protocols and necessary training and staffing of these facilities. As HCFA and the OIG continue to expand the scope of EMTALA, it remains necessary for hospitals and Emergency Medicine physicians to be cognizant of changes in the regulations and through case law.

Ralph L. Glover II, JD, LLM, has recently joined the law firm of Chuhak & Tecson, P.C., a full service law firm located in Chicago, IL. The health law department of Chuhak & Tecson has experience in all aspects of healthcare law including EMTALA. For further information contact Mr. Glover by phone at (312) 855-4626 or by email at rglover@chuhak.com. The website for Chuhak & Tecson, P.C. is www.chuhak.com. Note: this is an article for informational purposes only, it does not constitute legal advice. Please consult an attorney for legal questions concerning the topics contained in this article.