The TAG's final report also is sprinkled with high-priority recommendations aimed at making it clear that patients may not be transferred unnecessarily, and that hospitals must have—and review annually—plans for on-call coverage for services they regularly offer to the public. That includes specialty hospitals without dedicated emergency departments.
The 2006 Inpatient Prospective Payment System final rule adopted another related recommendation: Hospitals with specialized capabilities but no EDs are bound by the same responsibilities under EMTALA as specialty hospitals with dedicated EDs.
Inpatient Transfers Hotly Debated
The advisory group closed with heated debate, when questions were raised near the end of the panel's seventh and final meeting last September about whether EMTALA should apply to the transfer of inpatients who are never fully stabilized.
The panel was presented with several scenarios, such as a patient who comes in with chest pain and is admitted with a probable diagnosis of angina—but who is found with additional testing to have a dissecting thoracic aneurysm or other life-threatening surgical emergency that the admitting hospital is unable to address.
“We heard testimony about hospitals getting on the phone and trying to transfer that patient to a receiving facility that refused, citing they had no obligation to do so,” Dr. Pearlmutter recalled.
After several votes, the panel narrowly recommended that EMTALA be extended to cover inpatient transfers, but only if the patient has not been stabilized for the condition requiring admittance.
“Deciding what to recommend,” Dr. Pearlmutter said, “was a difficult, deliberate process.”
In the end, the contentious recommendation became one that CMS ran with. Like the community call recommendation, it made its way into the draft Inpatient Prospective Payment System regulation for fiscal year 2009.
In a series of recommendations on psychiatric issues in the emergency setting, the group again “spoke to the issue that EMTALA requirements have not recognized the need for local responses,” Ms. Tomar said.
The advisory panel said, for instance, that physicians and hospitals can use community protocols, services, and resources to help determine whether psychiatric emergency medical conditions exist, and how and where patients should be placed and cared for.
Proposed EMTALA Policy Changes
Other high-priority recommendations in the EMTALA TAG's final report include:
▸ HHS should improve the consistency of EMTALA interpretations and enforcement across CMS regions, establish intermediate sanctions for less serious violations, and establish an appeals process for hospitals and providers.
▸ While taking calls selectively may violate EMTALA, taking calls for patients with whom the physician has a preexisting relationship should not be considered “selective call.”
▸ An emergency medical condition does not need to be resolved to be considered stabilized for the purpose of discharge—as long as it is determined that the patient's care can be reasonably performed as an outpatient or later as an inpatient, and as long as the patient receives a plan for follow-up care.
▸ HHS should monitor and evaluate, however, the consequences of deferred care and of patients being “triaged out.”
▸ A psychiatric medical screening exam should attempt to determine whether an individual is suicidal, homicidal, or gravely disabled (poses a danger to oneself because of extremely poor judgment or inability to care for oneself)—though such a determination does not necessarily mean the patient has an emergency medical condition.
▸ Hospitals with specialized behavioral health capabilities should be required to accept the transfer of patients who are gravely disabled and have an emergency medical condition, if these hospitals have the necessary resources and capacity and the transferring hospital does not.
▸ The use of chemical or physical restraints may provide a temporary safe environment by minimizing risk during patient transport, but it does not in itself stabilize a psychiatric emergency medical condition. Unless the hospital or physician can demonstrate that a patient is stabilized regardless of the restraints, EMTALA still applies.