FAQs: EMTALA and PAs

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FAQs: EMTALA and PAs

Q. What is EMTALA?

A.
EMTALA is the "Emergency Medical Treatment and Labor Act" (42 USC §1867, Ch. 7), a law that took effect in 1986 intended to ensure that all individuals have access to appropriate emergency care and that they are not inappropriately transferred to another facility.

The law requires that a hospital provide an appropriate medical screening examination to any individual presenting to the hospital requesting emergency care. The purpose of the medical screening examination is to determine whether an emergency medical condition exists. If the clinical staff determines that an emergency medical condition does exist, they must either provide the treatment necessary to stabilize the individual or, if the facility and staff are unable to provide the care needed, the individual may be transferred. The law includes specific criteria that must be met regarding transfers.

Sometimes referred to as the "COBRA" or "anti-dumping law," the EMTALA provisions were passed by Congress within a larger bill called the Consolidated Omnibus Budget Reconciliation Act of 1985. The legislative language is found in section 1867(a) of the Social Security Act, codified at 42 USC §1395cc and §1395dd. The regulations are found primarily at 42 CFR §489.24, et seq.

Q. Can physician assistants perform the medical screening exams required by EMTALA?

A.
The EMTALA law and regulations allow for physician assistants to conduct medical screening exams as long as written hospital policy specifies that PAs are among the providers the hospital deems qualified to conduct them. Individual PAs must be granted authority, through privileges or some other mechanism, to be authorized to conduct the exams.

The regulations state, "In the case of a hospital that has an emergency department, if an individual (whether or not eligible for Medicare benefits and regardless of ability to pay) comes by him or herself or with another person to the emergency department and a request is made on the individual's behalf for examination or treatment of a medical condition by qualified medical personnel (as determined by the hospital in its rules and regulations), the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, to determine whether or not an emergency medical condition exists. The examinations must be conducted by individuals determined qualified by hospital bylaws or rules and regulations . ." (Emphasis added.) [42 CFR §489.24(a)]

May 2004 Interpretive guidelines - produced by the Centers for Medicare and Medicaid Services to assist its surveyors - further explain, "A hospital must formally determine who is qualified to perform the initial medical screening examinations, i.e., qualified medical person (QMP). While it is permissible for a hospital to designate a non-physician practitioner as the qualified medical person, the designated non-physician practitioners must be set forth in a document that is approved by the governing body of the hospital. Those health practitioners designated to perform medical screening examinations are to be identified in the hospital by-laws or in the rules and regulations governing the medical staff following governing body approval. It is not acceptable for the hospital to allow the medical director of the emergency department to make what may be informal personnel appointments that could frequently change. http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 4)

Q. Is a hospital in compliance with EMTALA if a physician assistant signs a transfer order sending an individual to another facility?

A.
Yes. A physician assistant may decide that transfer is appropriate, consult a supervising physician, and sign the transfer order. A physician must countersign the PA's transfer order within a reasonable period of time. EMTALA regulations state, "If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (d)(1)(ii)(B) of this section after a physician (as defined in section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification."[42 CFR §489.24(d)(ii)(C)]

The May 2004 interpretive guidelines state, "A QMP may sign the certification of benefits versus risks of a transfer only after consultation with the physician who authorizes the transfer. If a QMP determines that the transfer to another facility is in the best interest of the individual and signs the certification of benefits versus risks, a physician's countersignature must be obtained within the established timeframe according to hospital policies and procedures." http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 45.)

Q. If a hospital allows PAs to take emergency room call, is the facility violating EMTALA? Would the supervising physician who delegated the call responsibility be in violation?

A.
The Centers for Medicare and Medicaid Services (CMS) in the September 9, 2003, Federal Register (page 53256), specifically clarifies that physicians may delegate on-call services to qualified PAs. In response to a query from the AAPA, CMS states, "We agree that there may be circumstances in which a physician assistant may be the appropriate practitioner to respond to a call from an emergency department or other hospital department that is providing screening or stabilization mandated by EMTALA. However, any decision as to whether to respond in person or direct the physician assistant to respond should be made by the responsible on-call physician, based on the individual's medical needs and the capabilities of the hospital, and would, of course, be appropriate only if it is consistent with applicable State scope of practice laws and hospital bylaws, rules, and regulations." CMS says this clarification does not necessitate a change in the regulations.

CMS further states in May 2004 interpretive guidelines, "The decision as to whether the on call physician responds in person or directs a non-physician practitioner (physician assistant, nurse practitioner, orthopedic tech) as his or her representative to present to the dedicated ED is made by the responsible on call physician, based on the individual's medical need and the capabilities of the hospital and applicable State scope of practice laws, hospital bylaws, and rules and regulations. The on call physician is ultimately responsible for the individual regardless of who responds to the call." http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 22.)

This clarification does not change the authority for PAs to take call in Critical Access Hospitals (CAHs). Though CAHs are subject to EMTALA's requirements, the CAH regulations are quite clear about PAs taking call. They state, "Except as specified in paragraph (d)(2) of this section, there must be a doctor of medicine or osteopathy, a physician assistant, or a nurse practitioner with training or experience in emergency care on call and immediately available by telephone or radio contact, and available on site within the following time frames . etc." Paragraph (d)(2) addresses allowing RNs to be on call in limited circumstances. (Code of Federal Regulations, Title 42, Chapter 4, section 485.618(d)(1) Standard: Personnel.)

Q. Where can I obtain official documentation about EMTALA and PAs?

A.
There are several federal sources of documentation about EMTALA: federal law, federal regulations, and federal interpretive guidelines.

Federal regulations and accompanying CMS commentary, Federal Register, September 9, 2003. References to PAs are found on pages 53226 and 63256. References to "nonphysician practitioners" are found on pages 53226, 53227, 53235, and 53264.

The federal law, Title 42 USC §1867 (under Social Security, Chapter 7, subchapter XXVIII, Part D) can be found at www.access.gpo.gov/uscode/uscmain.html.

The federal regulations, Title 42 CFR §489.20 and 42 CFR §489.24, et seq., can be found at http://www.access.gpo.gov/nara/cfr/waisidx_01/42cfr489_01.html.

The EMTALA interpretive guidelines, entitled, ""State Operations Manual, Appendix V - Interpretive Guidelines - Responsibilities of Medicare Participating Hospitals in Emergency Cases," can be found at http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf .

Additional information can be found at other unofficial links including the following:

" EMTALA: A General Guide for the Physician Assistant ." Lynn A. Lavia, PA-C, MA, PhD. Journal of the American Academy of Physician Assistants, September 2002.

The American College of Emergency Physicians, www.acep.org/webportal/PracticeResources/issues/medleg/emtala/default.htm

The American Medical Association's Organized Medical Staff Section's "EMTALA Quick Reference Guide," www.ama-assn.org/ama1/pub/upload/mm/21/emtalarefguide.doc

Last Revised: 5/28/04

Q.		What is EMTALA?

A.		EMTALA is the "Emergency Medical Treatment and Labor Act" (42 USC §1867, Ch. 7), a law that took effect in 1986 intended to ensure that all individuals have access to appropriate emergency care and that they are not inappropriately transferred to another facility. The law requires that a hospital provide an appropriate medical screening examination to any individual presenting to the hospital requesting emergency care. The purpose of the medical screening examination is to determine whether an emergency medical condition exists. If the clinical staff determines that an emergency medical condition does exist, they must either provide the treatment necessary to stabilize the individual or, if the facility and staff are unable to provide the care needed, the individual may be transferred. The law includes specific criteria that must be met regarding transfers. Sometimes referred to as the "COBRA" or "anti-dumping law," the EMTALA provisions were passed by Congress within a larger bill called the Consolidated Omnibus Budget Reconciliation Act of 1985. The legislative language is found in section 1867(a) of the Social Security Act, codified at 42 USC §1395cc and §1395dd. The regulations are found primarily at 42 CFR §489.24, et seq.

Q.		Can physician assistants perform the medical screening exams required by EMTALA?

A.		The EMTALA law and regulations allow for physician assistants to conduct medical screening exams as long as written hospital policy specifies that PAs are among the providers the hospital deems qualified to conduct them. Individual PAs must be granted authority, through privileges or some other mechanism, to be authorized to conduct the exams. The regulations state, "In the case of a hospital that has an emergency department, if an individual (whether or not eligible for Medicare benefits and regardless of ability to pay) comes by him or herself or with another person to the emergency department and a request is made on the individual's behalf for examination or treatment of a medical condition by qualified medical personnel (as determined by the hospital in its rules and regulations), the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, to determine whether or not an emergency medical condition exists. The examinations must be conducted by individuals determined qualified by hospital bylaws or rules and regulations . ." (Emphasis added.) [42 CFR §489.24(a)] May 2004 Interpretive guidelines - produced by the Centers for Medicare and Medicaid Services to assist its surveyors - further explain, "A hospital must formally determine who is qualified to perform the initial medical screening examinations, i.e., qualified medical person (QMP). While it is permissible for a hospital to designate a non-physician practitioner as the qualified medical person, the designated non-physician practitioners must be set forth in a document that is approved by the governing body of the hospital. Those health practitioners designated to perform medical screening examinations are to be identified in the hospital by-laws or in the rules and regulations governing the medical staff following governing body approval. It is not acceptable for the hospital to allow the medical director of the emergency department to make what may be informal personnel appointments that could frequently change. http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 4)

Q.		Is a hospital in compliance with EMTALA if a physician assistant signs a transfer order sending an individual to another facility?

A.		Yes. A physician assistant may decide that transfer is appropriate, consult a supervising physician, and sign the transfer order. A physician must countersign the PA's transfer order within a reasonable period of time. EMTALA regulations state, "If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (d)(1)(ii)(B) of this section after a physician (as defined in section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification."[42 CFR §489.24(d)(ii)(C)] The May 2004 interpretive guidelines state, "A QMP may sign the certification of benefits versus risks of a transfer only after consultation with the physician who authorizes the transfer. If a QMP determines that the transfer to another facility is in the best interest of the individual and signs the certification of benefits versus risks, a physician's countersignature must be obtained within the established timeframe according to hospital policies and procedures." http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 45.)

Q.		If a hospital allows PAs to take emergency room call, is the facility violating EMTALA? Would the supervising physician who delegated the call responsibility be in violation?

A.		The Centers for Medicare and Medicaid Services (CMS) in the September 9, 2003, Federal Register (page 53256), specifically clarifies that physicians may delegate on-call services to qualified PAs. In response to a query from the AAPA, CMS states, "We agree that there may be circumstances in which a physician assistant may be the appropriate practitioner to respond to a call from an emergency department or other hospital department that is providing screening or stabilization mandated by EMTALA. However, any decision as to whether to respond in person or direct the physician assistant to respond should be made by the responsible on-call physician, based on the individual's medical needs and the capabilities of the hospital, and would, of course, be appropriate only if it is consistent with applicable State scope of practice laws and hospital bylaws, rules, and regulations." CMS says this clarification does not necessitate a change in the regulations. CMS further states in May 2004 interpretive guidelines, "The decision as to whether the on call physician responds in person or directs a non-physician practitioner (physician assistant, nurse practitioner, orthopedic tech) as his or her representative to present to the dedicated ED is made by the responsible on call physician, based on the individual's medical need and the capabilities of the hospital and applicable State scope of practice laws, hospital bylaws, and rules and regulations. The on call physician is ultimately responsible for the individual regardless of who responds to the call." http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf (See page 22.) This clarification does not change the authority for PAs to take call in Critical Access Hospitals (CAHs). Though CAHs are subject to EMTALA's requirements, the CAH regulations are quite clear about PAs taking call. They state, "Except as specified in paragraph (d)(2) of this section, there must be a doctor of medicine or osteopathy, a physician assistant, or a nurse practitioner with training or experience in emergency care on call and immediately available by telephone or radio contact, and available on site within the following time frames . etc." Paragraph (d)(2) addresses allowing RNs to be on call in limited circumstances. (Code of Federal Regulations, Title 42, Chapter 4, section 485.618(d)(1) Standard: Personnel.)

Q.		Where can I obtain official documentation about EMTALA and PAs?

A.		There are several federal sources of documentation about EMTALA: federal law, federal regulations, and federal interpretive guidelines. Federal regulations and accompanying CMS commentary, Federal Register, September 9, 2003. References to PAs are found on pages 53226 and 63256. References to "nonphysician practitioners" are found on pages 53226, 53227, 53235, and 53264. The federal law, Title 42 USC §1867 (under Social Security, Chapter 7, subchapter XXVIII, Part D) can be found at www.access.gpo.gov/uscode/uscmain.html. The federal regulations, Title 42 CFR §489.20 and 42 CFR §489.24, et seq., can be found at http://www.access.gpo.gov/nara/cfr/waisidx_01/42cfr489_01.html. The EMTALA interpretive guidelines, entitled, ""State Operations Manual, Appendix V - Interpretive Guidelines - Responsibilities of Medicare Participating Hospitals in Emergency Cases," can be found at http://web.mhanet.com/asp/Regulations/pdf/2004_emtala_interpretive_guidelines.pdf .

Additional information can be found at other unofficial links including the following:

		" EMTALA: A General Guide for the Physician Assistant ." Lynn A. Lavia, PA-C, MA, PhD. Journal of the American Academy of Physician Assistants, September 2002. The American College of Emergency Physicians, www.acep.org/webportal/PracticeResources/issues/medleg/emtala/default.htm The American Medical Association's Organized Medical Staff Section's "EMTALA Quick Reference Guide," www.ama-assn.org/ama1/pub/upload/mm/21/emtalarefguide.doc