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Emily Black Grey
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Industry Alerts

CMS Seeks Comment on How EMTALA Should Apply to Inpatients and Hospitals with Specialized Capabilities

The Center for Medicare and Medicaid Services (CMS) seeks comments as it considers how the Emergency Medical Treatment and Active Labor Act (EMTALA) should apply to inpatients and hospitals with specialized capabilities. The specific questions asked and information on how to submit comments appears below.
The Notice of Proposed Rulemaking was published on December 23, 2010 at 75 Fed.Reg. 80762. In this publication, CMS is focused on instances where an individual:

• presents to a hospital that has a dedicated emergency department (ED), requests treatment and is determined to have an emergency medical condition (EMC);
• is admitted to the hospital as an inpatient for purposes of stabilizing the EMC; and
• subsequently needs to transfer to another hospital with specialized capabilities to receive stabilizing treatment that cannot be provided by the hospital that originally admitted the patient.

Previously, CMS said in the Final Rule released on September 9, 2003 that EMTALA did not apply to any inpatient, even one admitted through the ED who remained unstable (68 Fed.Reg. 53243-53248). However, based on a report from the EMTALA Technical Advisory Group after a 30-month review of the regulations, CMS sought to give additional guidance on inpatients.

CMS provided the additional guidance in the April 30, 2008 IPPS Proposed Rule (73 Fed.Reg. 23669-23671). There, CMS proposed that even though EMTALA obligations cease upon admission for the first hospital where the individual presented, EMTALA obligations would nevertheless continue for a receiving hospital with specialized capabilities where the first, admitting hospital originally had an EMTALA obligation and sought to appropriately transfer the inpatient at issue.

In response to the many negative comments CMS received, it ultimately backed away from that proposal. In the August 19, 2008 Final IPPS Rule, it stated “due to the concerns that commenters raised, we are not finalizing the proposed policy. Rather, we are finalizing a policy that a hospital with specialized capabilities is not required under EMTALA to accept the transfer of a hospital inpatient. Although we believe that the language of section 1867(g) of the Act can be interpreted as either applying or not applying to inpatients, after reviewing the comments raised by many commenters, we have serious concerns about the impact the proposed policy would have had on patient care and the possibility that it may overburden many hospitals that are currently having difficulties providing sufficient emergency care.” (73 Fed.Reg. 48661)

While CMS has been working on the issue of EMTALA’s application to inpatients, the courts have been as well, and have not uniformly agreed with CMS. Some have found that EMTALA obligations end upon inpatient admission (the 4th, 9th and 11th Circuits), others have determined that the obligations can continue (the 6th Circuit and District of Puerto Rico).

Now, CMS seeks public comment on EMTALA’s application to inpatients and the impact on hospitals with specialized services. It has specifically asked:

• whether CMS should revisit the policies established in the September 9, 2003 and the August 19, 2008 Rules;
• for specific, real-world examples that demonstrate whether it would be beneficial to revisit the rules;
• whether you are aware of situations where an individual presented under EMTALA with an unstable EMC, was admitted as an inpatient, and then was transferred to another facility, even though the admitting hospital had the capacity and capability to treat the individual’s EMC;
• whether you believe a hospital with specialized capabilities will accept the transfer of an inpatient with an unstabilized EMC even without an EMTALA obligation to do so; and
• whether you are aware of situations where an individual with an unstabilized EMC was admitted as an inpatient, continued to have an unstabilized EMC and needed the services of a hospital with specialized capabilities, but the hospital with specialized capabilities refused to accept the transfer because current policy does not obligate it to do so.

The deadline to submit comments is February 22, 2011 at 4:00 pm CST. Comments can be submitted electronically at http://www.regulations.gov/#!documentDetail;D=CMS-2011-0001-0001 or by mail to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1350-ANPRM, P.O. Box 8013, Baltimore, MD 21244-8013.

Emily Black Grey is the manager of Breazeale, Sachse & Wilson LLP’s Health Care Section.