CMS Issues EMTALA Interim Guidance to State Survey Agency Directors Concerning Hospital Compliance

The Centers for Medicare and Medicaid Services ("CMS") recently issued interim guidance to regional office and state survey agency personnel concerning conducting an investigation and assessing a hospital's compliance with the Emergency Medical Treatment and Labor Act ("EMTALA").

EMTALA was enacted in 1986 to ensure public access to emergency services, regardless of ability to pay. See 42 U.S.C. § 1395dd; Soc. Sec. Act § 1867. The Act requires Medicare-participating hospitals that offer emergency services to provide medical screening and either stabilizing treatment or an appropriate transfer to any individuals seeking emergency care. Id. CMS published an EMTALA final rule in September 2003, which became effective on November 10, 2003, to implement the Act and clarify hospitals' responsibilities when treating individuals with emergency conditions. See 68 Fed. Reg. 53221. Revised Interpretive Guidelines for EMTALA are currently being developed for surveyors' use in enforcing EMTALA. However, in the meantime, CMS has issued this interim guidance to provide surveyors with assistance in assessing a hospital's compliance with EMTALA.

The interim guidance summarizes and clarifies some of the provisions of the EMTALA final rule. For example,

• The interim guidance states that the final rule codifies existing policy prohibiting a hospital from seeking authorization from an individual's insurance company until a medical screening exam has been provided and any necessary stabilizing treatment has been initiated.
  
• The interim guidance states that the final rule clarifies when a person is considered to have "'come to the emergency department'; such presentment triggers a hospital's obligation under EMTALA to provide a medical screening examination (MSE)."
  
• The interim guidance clarifies the final rule's definition of "dedicated emergency department" and the obligations of a hospital when a person presents him or herself at a hospital department either on or off-campus that is not the emergency department. The interim guidance makes clear that if a request is made for emergency care in a hospital department off the hospital's main campus, other than a dedicated emergency department, EMTALA does not apply. If, however, a person presents him or herself at an area of the hospital on the main campus, other than the dedicated emergency department, the interim guidance states that the person must receive a medical screening exam only if he or she requests, or has a request made on his or her behalf, for examination or treatment for what may be an emergency medical condition. The interim guidance further explains that even if no verbal request is made, a request for emergency care will nonetheless be considered to exist if a prudent layperson would conclude based on the person's appearance or behavior that he or she needs emergency examination or treatment.
  
• The interim guidance explains a change in policy that is reflected in the final rule from the April 2000 hospital outpatient prospective payment system ("PPS") final regulation. The EMTALA final rule eliminates EMTALA's application to off-campus outpatient clinics that do not routinely provide emergency services, whereas the hospital outpatient PPS final regulation called for the application of EMTALA to all off-campus departments that were considered part of the hospital.
  
• The interim guidance clarifies CMS's policy regarding when a patient is considered "stabilized" and a hospital's EMTALA obligation to "inpatients."

The interim guidance provides that the enforcement of EMTALA remains a "complaint-driven process" and that the "investigation of a hospital's policies and processes, and any subsequent sanctions, are initiated only by a complaint." CMS states that its interim guidance provides regional office and state survey agency personnel with the necessary tools to determine if a hospital has violated EMTALA and that the forthcoming interpretive guidelines will clarify CMS enforcement policies in more detail.