JJS: With regard to EMTALA, the college has long supported the goals of this legislation as being consistent with our mission and that of all emergency physicians. We do have, however, some concerns about the new rules. The provisions of that rule that give us pause are about the on-call physicians. Previously, EMTALA said that hospitals had to maintain a roster of on-call physicians and that these physicians needed to be available to respond to the emergency department when their services were needed. Now, hospitals can allow specialists to opt out of being on call to the emergency department. Specialists can be on call at more than one hospital simultaneously and they can schedule elective surgeries and elective procedures while they’re on call.

The concern is that this rule could potentially reduce the number of hospitals and emergency departments that have specialists available. That means that those hospitals that are left may be flooded with emergency patients in a time when many hospitals find themselves with large numbers of patients and emergency department crowding. This could exacerbate that condition and really impact access to care for patients: they would have longer waits in the waiting room, longer waits to see an emergency physician, longer waits to be admitted to the hospital.

For example, say a hospital has one neurosurgeon. That neurosurgeon is supposed to be on call 24 hours a day, seven days a week. Under the old interpretation of EMTALA, if you had a service available at the hospital, you had to provide that around the clock. Under the new conditions though, the on-call neurosurgeon could say, "Well, I’m not taking a call tonight," and so this hospital would not have that service available and, if someone came to that emergency department needing to have services of a neurosurgeon, it would be that hospital emergency department physician’s responsibility to transfer that person to a place that did have those capabilities.

JJS: Yes, that’s correct. When you have EMTALA, basically there are several things that a hospital has to do to keep compliant. First of all, the hospital and the emergency department physician need to conduct a medical screening examination. Secondly, if there is an emergency medical condition which is found during this screening examination, then they must either provide treatment until the patient is stabilized or, if they don’t have the capability to provide this treatment, then transfer this patient to another hospital. The third provision is that hospitals that have specialized capabilities are obligated to accept transfers if they have the capabilities to treat them.

JJS: Our nation’s emergency departments are becoming over-saturated. Emergency departments have closed throughout the country, which has caused consolidation of hospitals and more people coming to each specific emergency department. People are sicker than they were before. People are living longer. Our patients are more complex. It takes a longer amount of time to be seen and evaluated in the emergency department. Hospitals have reduced their capacities a great deal during the last decade because of managed care. One of the things that we all thought would happen was that we’d be able to take care of patients more on a outpatient basis, so hospitals have closed beds and their capacities aren’t as high as they were previously. We see patients who spend an inordinate amount of time in the emergency department, sometimes days at a time. What that does is occupy those beds that cannot be readily filled by patients coming in the front door. And so, in the long run, this produces a problem of access to emergency care and causes delays in the provision of that emergency care, which I think should be of great concern to everyone.

JJS: It will adversely impact the patient who may need to be transferred from one hospital to another if an on-call physician is not available. It will impact the patients at the receiving hospital who might find their care delayed because their access might be compromised by having more patients at that hospital. It will impact emergency physicians who are going to have to care for these patients and arrange for the transfers. This will probably impact our teaching hospitals and our county hospitals, which traditionally accept all-comers and who have staff and residents on call.

JJS: That would be my take on this, yes. A teaching hospital has specialists who are often working hand in hand with residents in training and would more likely tend not to opt out because of the teaching and training benefits of large volumes.

JJS: For specialty physicians, this may be a benefit to them. They could perhaps opt out of being on call. They would be able to be on call at more than one hospital simultaneously, and they could schedule elective surgeries and elective procedures while they’re on call. So, this certainly would benefit the specialists, benefit their lifestyle and benefit their style of practice. I think it will, however, be a detriment to emergency physicians who will have to arrange for these transfers, will have to care for patients in the emergency department while these transfers are being completed. It’s indeed a double-edged sword, I think, for physicians in general. I would think the surgical specialties would be the ones that will benefit the most and I don’t think there’s any doubt that emergency medicine will be the one that will see the detriment.

JJS: Yes. I think the new rule does bring some clarity. It clarifies which areas in the hospital are obligated to provide emergency care. Basically, if the patient comes to the emergency department or some place where you can reasonably expect to receive urgent or emergent care, then EMTALA applies. If someone comes to, say, a pharmacy area of a hospital, an eyewear center of a hospital, EMTALA does not apply to those areas. Hospital-owned clinics that don’t normally provide emergency services are exempted from EMTALA. I think that’s an important clarification for some hospitals - that you have an off-site clinic which serves perhaps as a physician’s office, a physical therapy clinic - EMTALA doesn’t apply if a patient should present there. The new rule also clarifies that hospital-owned ambulances can transport patients to other hospitals, and that will add some flexibility to our EMS systems. It also clarifies that the EMTALA obligation ends once a patient has been admitted to the hospital. EMTALA was a law that was interpreted differently by different areas of the country and this clarifies that once and for all.

JJS: That’s the whole reason that EMTALA was drafted in the first place. It was put forth in 1986 as part of the COBRA Act and was referred to as the anti-dumping law. It was designed to prevent hospitals from refusing to treat patients or from transferring them to charity or county hospitals because they were unable to pay. So from our standpoint, from emergency medicine’s standpoint and from society’s standpoint, I think it was a good thing because it made all hospitals and providers share that responsibility more evenly. CMS will tell us that it is now clarifying EMTALA. My sense is that it might weaken it a bit because of the ability of on-call physicians to opt out of their responsibilities and obligations.

JJS: One of the real dangers here, I think, is that we’ll have selective opting out of the on-call physicians. That, for patients who are insured, they’ll take care of them and, for patients who are not insured, they will not take care of them. I’m not sure if there are any provisions designed to recognize that. It’s unclear exactly how the opt-out process would proceed. My sense is that, on any given day, a hospital or physician would say that these services are not available, and at that time all patients who were in need of those services then could be transferred. I would hope that’s how it’s going to occur, but I don’t have any real sense if that’s what’s going to happen across the board.

The new rule did not talk about psychiatric patients at all. I think that is a real problem because of the many insurances which have carve-outs for psychiatric patients. The definition of stability in the psychiatric patient is difficult to ascertain and it was a disappointment to me that that was not addressed in this clarification.