Request for Clarification
The final rule extends a hospital's EMTALA obligations to provider-based facilities on-campus and to provider-based outpatient departments that are off-campus. It also expands the definition of "comes to the emergency department." We are requesting clarification on a number of uncertainties in the EMTALA provisions, much of which was new to the final rule.
The preamble indicates that the reason for expanding EMTALA obligations is to ensure that individuals who enter the wrong part of the hospital are protected. As drafted, the regulations could have the unintended effect of interfering with appropriate responses to an individual in need of emergency services and create needless confusion about what is required of a hospital.
Obligations of off-campus outpatient departments -- A hospital is required to have specified protocols in place for handling individuals requesting services for an emergency medical condition at an off-campus outpatient department.
AHA Comments - The specificity of the protocol requirements has the potential to interfere with what would otherwise be an appropriate response by a hospital.
The regulations should explicitly recognize the appropriateness of using emergency medical services (EMS) personnel and calling "9-1-1" or other designated emergency number." Current experience demonstrates that the public will choose an emergency department over another type of facility when the individual believes he or she has an emergency medical condition. It is the exception when such an individual will present to an off-campus department. The few examples we have identified where an individual presented to an off-campus department with an emergency medical condition involved chest pain or a cardiac condition. In those exceptional circumstances there should be no ambiguity that calling EMS is an appropriate response. Many of these departments will be specialty clinics and may be part of specialty hospitals. The suggestion that a hospital dispatch staff to the department and the preamble discussion regarding the use of EMS could be interpreted as a bias against the use of EMS. The regulations should also clarify that the requirement for direct contact between the off-campus department and emergency personnel at the main hospital campus does not have to occur before other appropriate action is taken. Making such contact should not delay responding to an individual.
Lack of guidance on when an individual at an off-campus department is covered under EMTALA. The ambiguity regarding a "request for examination or treatment" in the context of an off-campus site could have the effect of requiring that everyone coming to a department be approached as potentially having an emergency medical condition. While the preamble states that not all areas of the hospital must be equipped and staffed to provide emergency care and that not every appearance by an individual at an off-campus department will necessarily trigger an EMTALA obligation, it would be helpful to have more specific guidance. In particular, HCFA should clarify that unless an individual has symptoms of sufficient acuity and severity as to make evident that there is an emergency medical condition or a potential emergency medical condition, it is reasonable for the department to proceed with its routine for scheduling or seeing department patients.
In contrast to the emergency department, where the operating assumption is to assume a potential emergency medical condition unless it is ruled out, outpatient departments operate from a different frame of reference. In many instances individuals come to the off-site departments with prearranged appointments. For those who come without appointments, they are often scheduled at a mutually agreeable time. The department should not be expected to approach every patient as if he or she has a potential emergency medical condition.
Application of 489.20 to outpatient departments on- and off-campus. Section 413.65(g)(1) creates unnecessary confusion by appearing to directly apply 489.20 to outpatient departments. These requirements already apply to the hospital and there is no need to create redundant obligations for departments of the hospital.
"Comes to the emergency department"
The regulation expands the definition of "comes to the emergency department." Hospital property includes the main hospital campus and property within 250 yards.
AHA Comments - The regulation appears to make ownership of property the controlling factor for applying EMTALA without regard to how a site is being used, who is operating it, and how it is being held out to the public. For example, no distinction is made between unoccupied land that is owned by the hospital (e.g., undeveloped or recreation areas), buildings on hospital grounds that are occupied or operated by someone other than the hospital (e.g., doctors office building), and buildings owned by the hospital and not operated for clinical services (e.g., student housing, day care centers). Literally read, hospital property would extend EMTALA obligations to any or all of those sites. The ambiguity creates the potential that even grounds and buildings unrelated to the hospital that separate the main buildings from those within 250 yards could be considered "hospital property". If the intent as stated in the preamble is to ensure that someone who does not make their way to the emergency room is responded to, then the expansion should be limited to clinical facilities operated under the hospital's provider number and areas immediately proximate. This has already been accomplished by extending EMTALA to provider-based facilities on-campus and the sidewalks, driveway and parking lot proximate to the hospital facilities.