2003-09-02 -- Eliminating Hospitals' Obligation to Provide Emergency Care


New York Times, September 3, 2003

Emergency Rooms Get Eased Rules on Patient Care


By ROBERT PEAR

WASHINGTON, Sept. 2 - The Bush administration is relaxing rules that
say hospitals have to examine and treat people who require emergency
medical care, regardless of their ability to pay.

Under the new rule, which takes effect on Nov. 10, patients might find
it more difficult to obtain certain types of emergency care at some
hospitals or clinics that hospitals own and operate.

The new rule makes clear that hospitals need not have specialists "on
call" around the clock. Some patients might have more difficulty
winning damages in court for injuries caused by violations of the
federal standards.

"The overall effect of this final rule will be to reduce the
compliance burden for hospitals and physicians," the administration
says in a preamble to the regulation, to be published next Tuesday in
The Federal Register.

The administration drafted the new rule after hearing complaints from
scores of hospitals and doctors who said the old standards were
onerous and confusing, exposed them to suits and fines and encouraged
people to seek free care in emergency rooms. Courts have often ruled
for patients, and against hospitals.

In an interview, Thomas A. Scully, administrator of the federal
Centers for Medicare and Medicaid Services, said tonight that the new
standards would reduce the costs of compliance for hospitals and
doctors without weakening patients' protection.

The new rule limits the scope of a law from 1986 that defines hospital
obligations. It expands the situations in which hospitals are exempt
from the federal requirements.

Mr. Scully said the 1986 law did "a lot of wonderful things, but also
does some perverse things that cause a lot of heartburn for doctors
and hospitals."

For example, Mr. Scully said, if a hospital has a cancer center or a
dialysis center three blocks from its main building, the employees of
the center have to be trained to deal with emergency cases,
duplicating the work of the emergency room.

But Dr. Robert A. Bitterman, an emergency physician at the Carolinas
Medical Center in Charlotte, N.C., said: "The new rule could aggravate
an existing problem. Specialists are not accepting on-call duties as
frequently as we would like. As a result, hospital emergency
departments lack coverage for various specialties like neurosurgery,
orthopedics and ophthalmology. The new rule could make it more
difficult for patients to get timely access to those specialists."

Mr. Scully's deputy, Leslie V. Norwalk, said: "The old rules
contributed to the overcrowding of emergency rooms. Hospitals were
afraid to move patients out of the emergency department for fear of
violating the rules."

The new rule, while not a wholesale return to the situation before
1986, scales back regulations that specify when and where hospitals
have to provide emergency services. Patients turned away or refused
emergency care can still sue, but hospitals will, in many cases, have
stronger defenses.

Dr. Douglas L. Wood, a cardiologist at the Mayo Clinic in Rochester,
Minn., said hospital duties under the 1986 law had grown because of
court decisions and the "layering of regulation on regulation."

In the last five years, the government has collected more than $4
million from 164 hospitals and doctors accused of violating the law.

The new rule narrows the definition of "hospital property" where
patients are entitled to emergency care. In addition, it says the 1986
law does not apply to emergency patients after a hospital has admitted
them.

The 1986 law, the Emergency Medical Treatment and Labor Act, or
Emtala, applies to all hospitals that participate in Medicare and
offer emergency services.

Under the law, if any person - not just a Medicare beneficiary - goes
to the emergency department of a hospital for treatment, the hospital
has to provide a "medical screening examination."

If the examination shows an emergency medical condition, the hospital
has to provide treatment to stabilize the patient's condition.
Alternatively, the hospital can have the patient transferred to
another institution if the expected benefits outweigh the risks.

Under the new rule, the administration says, "Emtala no longer applies
to any individual who is admitted as an inpatient."

Hospitals and doctors who violate a requirement of the 1986 law can be
fined $50,000 for each violation and can be excluded from Medicare. In
addition, patients have a right to sue hospitals that violate the law.
Some patients have recovered hundreds of thousands of dollars.



The American Hospital Association and other industry groups have long
sought changes in the emergency room standards. In 1999, when Mr.
Scully was president of the Federation of American Hospitals, he
complained that the government was using the 1986 law in ways never
intended by Congress.

Maureen D. Mudron, Washington counsel for the American Hospital
Association, welcomed the new rule today, saying that it provided
"clear and practical guidance."

Under federal law, each hospital participating in Medicare also has to
keep a list of doctors who are available, on call, to treat emergency
room patients.

The new rule gives hospitals greater discretion in arranging such
coverage. A hospital can legally exempt senior members of the medical
staff from on-call duty, it says. Moreover, the new rule says federal
law does not require all hospitals to have doctors on call 24 hours a
day seven days a week.

In addition, the rule says, doctors can have simultaneous on-call
duties at two or more hospitals and can schedule elective surgery or
other medical procedures when they are on call.

The old rules applied to all hospital departments, even those not at
the main hospital site. The new rule applies to an "off-campus" site
only if it is specifically licensed as an emergency room, if the site
is held out to the public as a place that provides emergency care or
if emergency cases accounted for at least one-third of all outpatient
visits in the prior year.

The old rules provided protection to anyone seeking care on hospital
property, meaning "the entire main hospital campus."

The new rule makes clear that the law does not apply to doctors'
offices, rural health clinics, nursing homes or other "nonhospital
entities," even if they are adjacent to the main hospital building and
are owned or operated by the hospital.