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CMS Says: No Need to Revise EMTALA to Apply to Inpatients

Health Law Update Sarah E. Coyne, Kevin J. Eldridge

On Thursday, February 2, 2012, CMS announced that EMTALA will not be amended to apply to inpatients. [Insert sound of party horns and cheering crowds]. The regulations implementing EMTALA, also known as the "anti-dumping" law, require hospitals with dedicated emergency departments (including critical access hospitals) to perform a medical screening examination to patients presenting to the hospital in order to detect the presence of an unstable emergency medical condition ("EMC"). If the patient has an unstable emergency medical condition, the hospital must provide stabilizing treatment or effect an appropriate transfer. The EMTALA obligation ends when the patient is properly transferred, when the patient is stabilized, or when the patient is admitted in good faith.

In December 2010, CMS solicited comments on whether to revise the EMTALA regulations on the applicability of EMTALA to inpatients and to hospitals with specialized capabilities. The bottom line is that because most public comments supported the current law on these points, CMS decided to maintain the status quo.

Inpatients:

Under EMTALA and current CMS policy, when a hospital admits (in good faith) a patient with an unstable EMC to the inpatient service, the hospital's EMTALA obligation ends. While federal appeals courts have split on whether CMS's policy is consistent with the EMTALA statute, CMS received very few comments advocating for an extension of EMTALA to inpatients (imagine that!), and thus decided to maintain the current bright-line approach. As has been the case previously, if a hospital were to admit a patient with an unstable EMC solely to circumvent EMTALA obligations, and the patient is later discharged without proper stabilization of the EMC, there would be EMTALA liability. So after ponderous consideration, our advice to hospitals on this point is: Don't do sneaky illegal stuff.

Hospitals With Specialized Capabilities:

CMS also decided to maintain the status quo with regard to hospitals with "specialized capabilities" (e.g. burn units, trauma designation, NICU), which is a bit convoluted so try to stay with us here. If Hospital A has specialized capabilities, and Hospital B admits a patient with an unstable EMC needing those specialized capabilities, Hospital A will not be liable under EMTALA for not accepting an appropriate transfer under EMTALA from Hospital B. Got that? While CMS will not be extending EMTALA liability to hospitals with specialized capabilities for refusing such transfers at this point, there is a 60-day comment period to allow submission of commentary and "real world examples" relevant to hospitals with specialized capabilities. CMS has struggled with this issue for years, and policy has vacillated on whether the hospital with specialized capabilities must accept the transfer. Again, the current answer is "no," at least as far as EMTALA liability goes.

The February 2 CMS request for comments can be found here: http://www.gpo.gov/fdsys/pkg/FR-2012-02-02/pdf/2012-2287.pdf. The December 23, 2010, notice of proposed rulemaking from CMS can be found here: http://www.gpo.gov/fdsys/pkg/FR-2010-12-23/pdf/2010-32267.pdf.

For more information, please contact Sarah Coyne at (608) 283-2435 / sarah.coyne@quarles.com, Kevin Eldridge at (608) 283-2452 / kevin.eldridge@quarles.com or your Quarles & Brady attorney.