CMS Seeks Comments on the Applicability of EMTALA to Hospital Inpatients and Hospitals With Specialized Capabilities

10 January 2011 Publication
Authors: Alan H. Einhorn Gary D. Koch

Legal News Alert: Health Care

On December 23, 2010, CMS issued an Advance Notice of Proposed Rulemaking with Comment (ANPRM) seeking public comments regarding its current policy on the applicability of the Emergency Medical Treatment and Labor Act (EMTALA) to circumstances in which an individual: (1) is determined by a hospital’s dedicated emergency department to have an emergency medical condition (EMC); and (2) prior to being stabilized, is admitted as a hospital inpatient, but subsequently requires transfer to another hospital with specialized capabilities. Comments must be received no later than 5:00 p.m. Eastern on February 22, 2011. The ANPRM can be found at


EMTALA requires Medicare-participating hospitals (including critical access hospitals) with emergency departments to provide a medical screening examination to any individual who comes to the hospital and requests an examination or treatment for a medical condition. If a medical screening examination reveals that the patient suffers from an EMC, the hospital is obligated to provide the patient with either necessary stabilizing treatment or an appropriate transfer to another medical facility where stabilization can occur. Medicare-participating hospitals that have specialized capabilities (e.g., hospitals that provide burn care, shock-trauma care, or neonatal intensive care) are prohibited from refusing to accept an appropriate transfer of a patient with an EMC in need of specialized treatment, if the hospital has the capacity to treat the patient. EMTALA obligations apply to all potential patients seeking emergency care, whether or not they are beneficiaries of a federal or state health care program, and a hospital that fails to comply with EMTALA’s requirements may be subject to civil monetary penalties and termination of its Medicare provider agreement.

Although EMTALA applies primarily to the care and treatment of individuals in a hospital’s dedicated emergency department, the applicability of EMTALA to hospital inpatients has been the subject of differing interpretations by the Department of Health and Human Services (HHS) (in proposed and final rules) and by the courts, as illustrated by the following chronology:

2002 Proposed Rule
HHS proposed that EMTALA continue to apply to individuals with a presenting EMC who are admitted as hospital inpatients and not yet stabilized (including individuals whose conditions fluctuate rapidly and frequently in and out of apparent stability following admission). EMTALA would not otherwise apply to hospital inpatients. (May 9, 2002 IPPS Proposed Rule) (67 FR 31475)

2003 Final Rule
HHS stated that a hospital’s EMTALA obligations cease when either (1) the individual’s EMC is stabilized, or (2) the hospital, in good faith, admits the individual with an unstabilized EMC as an inpatient. HHS noted that patient safeguards other than EMTALA, including hospital Conditions of Participation (CoPs) and state malpractice laws, protect all hospital inpatients. The 2003 Final Rule also stated, however, that a hospital could not avoid liability under EMTALA by admitting an individual as an inpatient with no intention of providing stabilizing treatment and then inappropriately transferring or discharging that individual without having met the stabilization requirement. (September 9, 2003 Final Rule) (68 FR 53243)

2008 Proposed Rule
HHS proposed that when an individual subject to EMTALA is admitted to the original presenting hospital as an inpatient and continues to have an unstabilized EMC, a hospital with specialized capabilities should have an EMTALA obligation to accept a transfer of that individual, assuming that the transfer is an appropriate transfer and the receiving hospital has the capacity to treat the individual. HHS noted that, although an inpatient is protected by hospital CoPs and state law, there is no CoP that requires a hospital to accept a transfer of a patient from another hospital that has admitted the patient. (April 30, 2008 IPPS Proposed Rule) (73 FR 23669)

2008 Final Rule
HHS stated that if an individual with an unstable EMC is admitted as an inpatient, EMTALA is no longer applicable, even if the individual’s EMC has not been stabilized and the individual requires treatment at a hospital with specialized capabilities. A hospital with specialized capabilities does not have an EMTALA obligation to accept the transfer of a hospital inpatient.

The 2008 Final Rule was in part a response to comments to the 2008 Proposed Rule asserting that the Proposed Rule extended the EMTALA obligations of the original admitting hospital by requiring an “appropriate transfer” despite the fact the original hospital’s EMTALA obligations ended when the patient was admitted as an inpatient. HHS stated that implementation of the 2008 Proposed Rule could have negatively impacted patient care by increasing inappropriate transfers; could have further burdened the emergency system; and could have resulted in the disparate treatment of inpatients because an individual who presented to a hospital under EMTALA might have different transfer rights than an individual admitted for an elective procedure. (August 18, 2009 IPPS Final Rule) (73 FR 48656)

Courts that have considered the applicability of EMTALA to hospital inpatients also have reached different conclusions about EMTALA’s breadth, with some courts holding that a hospital’s EMTALA obligations cease when the hospital admits an individual as a hospital inpatient and others concluding that a hospital’s EMTALA obligations to an individual continue until the individual’s EMC is stabilized, regardless of the individual’s status as an inpatient or outpatient.

Request for Comments

In the ANPRM, HHS requests comments regarding whether HHS should revisit the policies set forth in the 2003 Final Rule and the 2008 Final Rule. HHS is seeking “real world examples,” including situations in which a hospital inpatient with an unstable EMC was transferred to a hospital with specialized capabilities, even though the admitting hospital had the capability and capacity to treat the patient. In addition, HHS is interested in obtaining information as to whether it is reasonable to assume that hospitals with specialized capabilities will accept other hospitals’ inpatients with unstabilized EMCs even though there is no EMTALA obligation to do so, or whether hospitals with specialized capabilities are refusing to accept the transfer of inpatients with unstabilized EMCs.

In short, HHS is seeking probative information as to whether there exists a problem with respect to the treatment and/or transfer of EMTALA patients who are admitted to presenting/original hospitals with unstable EMCs, so that it can determine whether it will seek a solution to that problem through the expansion of EMTALA’s breadth. Comments must be received no later than 5:00 p.m. Eastern on February 22, 2011.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our health care clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals:

Alan H. Einhorn
Boston, Massachusetts

Gary D. Koch
Tampa, Florida

Maureen F. Kwiecinski
Milwaukee, Wisconsin

R.Michael Scarano Jr.
San Diego, California


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