04-11936. Medicare Program; Establishment of the Emergency Medical Treatment and Labor Act (EMTALA) Technical Advisory Group (TAG) and Request for Nominations for Members

AGENCY:

Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION:

Notice.

SUMMARY:

This notice announces the establishment of the Emergency Medical Treatment and Labor Act (EMTALA) Technical Advisory Group (TAG) and discusses the group's purpose and charter. It also solicits nominations for members.

DATES:

Nominations for membership will be considered if they are received by July 12, 2004.

ADDRESSES:

Send nominations to— Division of Acute Care, Mail stop C4-08-06, Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244-1850; Attention: Beverly J. Parker.

Send written requests for copies of the EMTALA TAG Charter to— Division of Acute Care, Mail stop C4-08-06, Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244-1850; Attention: Marianne M. Myers.

FOR FURTHER INFORMATION CONTACT:

Beverly J. Parker [phone]. Press inquiries are handled through the CMS Press Office at [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Sections 1866(a)(1)(I), 1866(a)(1)(N), and 1867 of the Social Security Act (the Act) impose specific obligations on Medicare-participating hospitals that offer emergency services. These obligations concern individuals who come to a hospital emergency department and request examination or treatment for medical conditions, and apply to all of these individuals, regardless of whether or not they are beneficiaries of any program under the Act. Section 1867 of the Act sets forth requirements for medical screening examinations of medical conditions, as well as necessary stabilizing treatment or appropriate transfer. In addition, section 1867(h) of the Act specifically prohibits a delay in providing required screening or stabilization services in order to inquire about the individual's payment method or insurance status. Section 1867(d) of the Act provides for the imposition of civil monetary penalties on hospitals and physicians responsible for negligently violating a requirement of that section, through actions such as the following: (a) Negligently failing to appropriately screen an individual seeking medical care; (b) negligently failing to provide stabilizing treatment to an individual with an emergency medical condition; or (c) negligently transferring an individual in an inappropriate manner. (Section 1867(e)(4) of the Act defines “transfer” to include both transfers to other health care facilities and cases in which the individual is released from the care of the hospital without being moved to another health care facility.)

These provisions, taken together, are frequently referred to as the Emergency Medical Treatment and Labor Act (EMTALA), also known as the patient antidumping statute. EMTALA was passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Congress enacted these antidumping provisions in the Social Security Act because of its concern with an increasing number of reports that hospital emergency rooms were refusing to accept or treat individuals with emergency conditions if the individuals did not have insurance.

We presented and implemented these EMTALA provisions through proposed and interim final rules published in the Federal Register on June 16, 1988 (53 FR 22513), and June 22, 1994 (59 FR 32120), respectively. In May 9, 2002, Federal Register (67 FR 31404), we proposed further revisions to the EMTALA regulations. These proposals were designed address issues and concerns which had arisen following publication of the interim final rule with comment period by clarifying policies relating to the responsibilities of Medicare-participating hospitals in treating individuals with emergency medical conditions who present to a hospital under the provisions of EMTALA. In the September 9, 2003, Federal Register (68 FR 53222), we finalized these proposals.

Section 945 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173), requires that the Secretary establish a Technical Advisory Group (TAG) to solicit advice concerning issues related to EMTALA regulations and implementation.

II. Charter, General Responsibilities, and Composition of the EMTALA TAG

A. Charter Information and General Responsibilities

On May 11, 2004, the Secretary signed the charter establishing the EMTALA TAG. This charter will terminate 30 months from the date of the EMTALA TAG's first meeting. The EMTALA TAG, as chartered, under the legal authority of section 945 of the MMA, is also governed by the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix 2. In accordance with section 945 of the MMA, the EMTALA TAG will meet at least twice a year and all meetings will be open to the public.

You may obtain a copy of the Secretary's charter for the EMTALA TAG by mailing a written request to the address specified in the ADDRESSES section of this notice.

Section 945 of the MMA specifies that the EMTALA TAG—

• Will review the EMTALA regulations;
• May provide advice and recommendations to the Secretary concerning these regulations and their application to hospitals and physicians;
• Will solicit comments and recommendations from hospitals, physicians, and the public regarding implementation of such regulations; and
• May disseminate information concerning the application of these regulations to hospitals, physicians, and the public.

B. Composition of the EMTALA TAG

Section 945 of the MMA also specifies the composition of the EMTALA TAG. It states that the EMTALA TAG will be composed of 19 members including the Administrator of the Centers for Medicare & Medicaid Services (CMS) and the Inspector General of the Department of Health and Human Services (DHHS) in addition to the number and type of individuals specified in each of the following categories:

• Four representatives of hospitals, including at least one public hospital, that have experience with the application of EMTALA and, at least, two hospitals that have not been cited for EMTALA violations;
• Seven practicing physicians drawn from the fields of emergency medicine, cardiology or cardiothoracic surgery, orthopedic surgery, neurosurgery, pediatrics or a pediatric subspecialty, obstetrics-gynecology and psychiatry, with not more than one physician from any particular field;
• Two representatives of patients;
• Two staff persons involved in EMTALA investigations from different CMS regional offices;
• One representative from a State survey agency involved in EMTALA investigations and one representative from a Quality Improvement Organization (QIO), both of whom shall be from areas other than the regions represented by the CMS regional offices.

III. Submission of Nominations

We are requesting nominations for membership on the EMTALA TAG. The Secretary will consider qualified individuals who are nominated by organizations representing providers and patients when selecting practicing physicians, patients, and hospital representatives. The Secretary will also consider qualified individuals who are self-nominated when selecting CMS regional office, State survey agency, and QIO representatives. The Secretary will appoint members to serve on the EMTALA TAG from among those candidates determined to have the technical expertise required to meet the statutory requirements and in a manner to ensure an appropriate balance of membership.

Nominations may be made for one or more qualified individuals for each of the categories listed in section II.B. of this notice. Each nomination must include the following:

1. A letter of nomination that contains—

a. Contact information for both the nominator and nominee (if not the same); and

b. The category, as specified in section II.B. of this notice for which the nomination is being made (for example, hospital representative or practicing physician).

2. A statement from the nominee that he or she is willing to serve on the EMTALA TAG for its duration (that is, at least 30 months from date of the first meeting) and an explanation of interest in serving on the EMTALA TAG. (For self-nominations, this information may be included in the nomination letter.)

3. A curriculum vitae that indicates the nominee's educational and EMTALA-related experiences.

4. Three letters of reference that support the nominee's qualifications for participation on the EMTALA TAG. (For nominations other than self-nominations, a nomination letter that includes information supporting the nominee's qualifications may be counted as one of the letters of reference.)

5. Additional information is required for the following categories of nominations:

a. Hospital representatives—In your statement regarding serving on the EMTALA TAG indicate—

(1) Your hospital's Medicare provider number;

(2) The type of hospital (public or private); and

(3) Whether or not your hospital has been cited for an EMTALA violation and, if so, the nature of the citation.

b. Practicing physicians—In your statement regarding serving on the EMTALA TAG indicate—

(1) Your board or specialty society and certification (if any) for your field of service;

(2) Your Unique Physician Identification Number (UPIN);

(3) Whether or not you have been cited for an EMTALA violation and, if so, the nature of the violation.

c. Representatives from the CMS regional office, State survey agency or Quality Improvement Organization—In your statement regarding serving on the EMTALA TAG indicate the extent of your experience with EMTALA investigations.

To ensure that a nomination is considered, we must receive all of the nomination information specified in section III of this notice by July 12, 2004.

Authority: Section 945 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA).

(Catalog of Federal Domestic Assistance Program No. 93.773 Medicare—Hospital Insurance Program; and No. 93.774, Medicare—Supplementary Medical Insurance Program.)

Dated: April 26, 2004.

Mark B. McClellan,

Administrator, Centers for Medicare & Medicaid Services.