[NPInfo] Fwd: New EMTALA Rules

[nursinglaw at aol.com]

Winifred Carson-Smith, Esq.
CarsonCompany, LLC
http://www.carsonco.net
nursinglaw at aol.com
202-232-5193
202-232-5194(fax)


-----Original Message-----
From: Hilary Young <hyoung at JOYYOUNGLAW.COM>
To: HL-HCLIT_RISKMGMNT at MAIL.ABANET.ORG
Sent: Mon, 18 Aug 2008 1:12 pm
Subject: New EMTALA Rules



Hi, IG members.  CMS has just adopted some interesting changes to the EMTALA 
ules and to other rules affecting hospital compliance and operations.  They are 
art of the 2009 Inpatient Prospective Payment System final rules that are being 
ublished in the Federal Register tomorrow (Tuesday, 8/19/08).  In addition to 
roviding the IPPS update for 2009, the rules contain some revisions to the 
MTALA rules, to hospitals' obligations to disclose physician ownership and/or 
hen a physician is not on-site 24/7, and to some of the Stark self-referral 
rovisions, and they put into rule the agency's intent to have 500 hospitals 
omplete a questionnaire about their financial relationships with physicians.  
hese revisions are effective October 1, 2008.  I have attached a PDF containing 
he discussion of the EMTALA rules, and here is the link to the complete 
reamble on the CMS website:  http://www.cms.hhs.gov/center/hospital.asp (click 
n PDF CMS-1390-F).
In summary, CMS is making the following changes:
1.  INPATIENTS:  In the spring, CMS had proposed a revision whereby hospitals 
ith specialized capability would still have an EMTALA obligation to accept the 
ransfer of an inpatient with an emergency medical condition from a transferring 
ospita
l if the transferring hospital admitted the patient from the ED but was 
nable to stabilize the emergency medical condition.  In the final rule, CMS 
acked off that proposed rule and confirmed the position it took in the 2003 
ule regarding inpatients.  Admission of an individual to an inpatient bed ends 
he EMTALA obligations for the admitting hospital.  But even if the admitting 
ospital is not able to stabilize the patient's emergency medical condition, 
here is NO obligation on the part of another hospital with specialized 
apability to accept the transfer of an inpatient, even if he/she came through 
he ED.
2.  ON-CALL LIST:  CMS proposed moving the requirement for a hospital to 
aintain an on-call list from 489.24(j)(1) and merging it with and revising the 
anguage in 489.20(r)(2), and the agency adopted that revision in the final 
ule.  CMS also revised the language regarding the on-call requirement by 
eleting the language that hospitals have the discretion to maintain an on-call 
ist in a manner that "best meets the needs of the hospital's patients" and 
eplacing it with the requirement that hospitals have:  "An on-call list of 
hysicians who are on the hospital's medical staff, or who have privileges at 
he hospital, or who are on staff or have privileges at another hospital 
articipating in a formal community call plan in accordance with sec. 
89.24(j)(2)(iii) available to provide treatment necessary after the initial 
xamination to stabilize individuals with emergency medical co
nditions who are 
eceiving services required under sec. 489.24 in accordance with the resources 
vailable to the hospital."  CMS did not take action on and is still considering 
ther TAG recommendations about hospitals developing an annual plan for ED call 
nd revisiting/revising the plan annually.
3.  SHARED/COMMUNITY CALL:  CMS proposed provisions regarding voluntary 
ommunity call plans that hospitals could establish in their geographic areas.  
he agency adopted the provisions mostly as proposed, just deleting a 
equirement for hospitals to have evidence of working together to assess the 
ommunity call plan.  The new provisions at 489.24(j) (with the revisions being 
n (j)(2)(iii)) are:
    "Availability of on-call physicians. In accordance with the on-call list 
equirements specified in §489.20(r)(2), a hospital must have written policies 
nd procedures in place--(1) To respond to situations in which a particular 
pecialty is not available or the on-call physician cannot respond because of 
ircumstances beyond the physician’s control; and (2) To provide that emergency 
ervices are available to meet the needs of individuals with emergency medical 
onditions if a hospital elects to--(i) Permit on-call physicians to schedule 
lective surgery during the time that they are on call; (ii) Permit on-call 
hysicians to have simultaneous on-call duties; and (iii) Participate in a 
ormal community call plan.  Notwithstanding participation in a community call 
lan, hospitals are still required to perform medical s
creening examinations on 
ndividuals who present seeking treatment and to conduct appropriate transfers. 
he formal community call plan must include the
ollowing elements:
        ● The community call plan would include a clear delineation of on-call 
overage responsibilities, that is, when each hospital participating in the plan 
s responsible for on-call coverage.
        ● The community call plan would define the specific geographic area to 
hich the plan applies.
        ● The community call plan would be signed by an appropriate 
epresentative of each hospital participating in the plan.
        ● The community call plan would ensure that any local and regional EMS 
ystem protocol formally includes information on community on-call arrangements.
        ● The community call plan would include a statement specifying that even 
f an individual arrives at the hospital that is not designated as the on-call 
ospital, that hospital still has an EMTALA obligation to provide a medical 
creening examination and stabilizing treatment within its capability, and 
ospitals participating in community call must abide by the EMTALA regulations 
overning appropriate transfers.
        ● There would be an annual reassessment of the community call plan by 
he participating hospitals."
4.  TECHNICAL CORRECTION TO PROVISION ON EMERGENCY PREPAREDNESS:  When CMS 
dopted EMTALA rule changes in August 2007, the agency included a provision for 
aiver=2
0of EMTALA sanctions in an emergency area during an emergency period.  
hat provision is found at 489.24(a)(2), but inadvertently limited the scope of 
he rule by leaving out some statutory language.  This revision adds that 
anguage so that now the rule reads as follows:
    "Nonapplicability of provisions of this section. Sanctions under this 
ection for an inappropriate transfer during a national emergency or for the 
irection or relocation of an individual to receive medical screening at an 
lternate location pursuant to an appropriate State emergency preparedness plan 
r, in the case of a public health emergency that involves a pandemic infectious 
isease, pursuant to a State pandemic preparedness plan do not apply to a 
ospital with a dedicated emergency department located in an emergency area 
uring an emergency period, as specified in section 1135(g)(1) of the Act. A 
aiver of these sanctions is limited to a 72-hour period beginning upon the 
mplementation of a hospital disaster protocol, except that, if a public health 
mergency involves a pandemic infectious disease (such as pandemic influenza), 
he waiver will continue in effect until the termination of the applicable 
eclaration of a public health emergency, as provided for by section 
135(e)(1)(B) of the Act."
5.  DISCLOSURE OF PHYSICIAN OWNERSHIP AND WHETHER A PHYSICIAN IS ON SITE 24/7:  
uring the last year, CMS adopted rules requiring hospitals and critical access 
ospitals (CAHs) to disclose to patients (a) physician ownership in the
 
ospital, and (b) when there is not a physician on-site 24/7 and how the 
ospital plans to deal with emergencies when a physician is not on site.  These 
ules were found in sections 489.20(u)(1) and (2), and 489.20(v) (which is being 
edesignated as 489.20(w)).  In this rule, CMS slightly revised those rules as 
ollows:
    (a)  Revised the definition of a physician-owned hospital at 489.3 to 
nclude hospitals in which an ownership interest is held by a physician OR a 
hysician's immediate family member;
    (b)  Required all hospitals to require that all physician owners who also 
re members of the hospital’s medical staff to agree, as a condition of 
ontinued medical staff membership or admitting privileges, to disclose, in 
riting, to all patients they refer to the hospital any ownership or investment 
nterest that is held by themselves or by an immediate family member (as defined 
n §411.351). Disclosure must occur at the time the referral is made;
    (c)  Required hospitals to provide the list of names of physicians/immediate 
amily members with an ownership interest in the hospital to the patient at the 
ime the list is requested, by or on behalf of the patient;
    (d)  Created an exception to the disclosure requirements for a 
hysician-owned hospital (as defined at revised §489.3) that does not have any 
hysician owners who refer patients to the hospital (and that has no referring 
hysicians (as defined at §411.351) who have an immediat
e family member with an 
wnership or investment interest in the hospital); and
    (e)  Clarified in section 489.53 that CMS may terminate the Medicare 
rovider agreement of a hospital that does not comply with the disclosure 
equirements set forth in revised §§489.20(u)(1) and (u)(2), and redesignated 
489.20(w).
6.  SOME OTHER TOPICS COVERED BY THE RULE:
    (a)  CMS discusses in the rule's preamble changes to its policies pertaining 
o physician self-referral provisions under the Stark rules, including "stand in 
he shoes," period of disallowance, alternative method of compliance with 
ertain exceptions, percentage-based compensation, unit of service ("per-click") 
ayments in lease arrangements, services provided "under arrangements," 
xception for obstetrical malpractice insurance subsidies, ownership or 
nvestment interest in retirement plans, and burden of proof.  Please see the 
reamble to the rule for specifics on these topics.
    (b)  CMS also finalized in rule that 500 hospitals will be required to 
urnish information concerning their financial relationships with their 
hysicians on the Disclosure of Financial Relationship Report (DFRR).  Hospitals 
ill have 60 days from receipt to complete and return the DFRR, but CMS 
larified that it intends to work with hospitals and grant extensions as 
ndicated rather than taking a punitive approach to getting the DFRRs submitted.  
MS also stated that it currently plans for this to be a one-time collection 
ffort rather than an ongoing or recu
rring practice.

ilary H. Young
oy & Young, L.L.P.
120 S. Capital of Texas Hwy
uilding 3, Suite 215
ustin, Texas  78746
12.330.0228 (phone)
12.330.9880 (fax)
12.699.7905 (cell)
young at joyyounglaw.com
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<<EMTALA Final Rule Preamble 7-31-08.pdf>> 
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