January 18, 2011 | 10,718 Comments
Posted by Beth Christian
On December 23, 2010, the Centers for Medicare and Medicaid Services published an advance notice of proposed rulemaking with comment period concerning potential modifications to the regulations governing the Emergency Medical Treatment and Labor Act (EMTALA). The notice concerns the applicability of EMTALA to individuals who: (1) are determined in the hospital’s dedicated emergency department to have an emergency medical condition; (2) prior to being stabilized, are subsequently admitted to the hospital as an inpatient; and (3) later need to be transferred to another hospital with specialized capabilities for further stabilizing treatment.
Current regulations specify that a hospital’s obligation under EMTALA ends either when the individual’s emergency medical condition is stabilized or when that hospital, in good faith, admits an individual with an unstable emergency medical condition as an inpatient. CMS has taken the position under the current regulations that EMTALA does not apply to any inpatient, even one who was admitted through the dedicated emergency department, for whom the hospital had initially incurred an EMTALA obligation to stabilize, and who remained unstabilized after admission as an inpatient. CMS has also taken the position that a hospital with specialized capabilities does not have an EMTALA obligation to accept an appropriate transfer of an individual who had been admitted in good faith as an inpatient at another hospital.
There have been several court decisions that reached differing conclusions regarding the issue of whether EMTALA should be applied to hospital inpatients. As a result, CMS is soliciting comments as to whether it should revisit its current policies regarding the applicability of EMTALA to hospital inpatients. CMS is soliciting comments as to whether commenters are aware of situations where an individual who presented under EMTALA with an unstable emergency medical condition was admitted to the hospital where he or she first presented and was then transferred to another facility, even though the admitting hospital had the capacity and capability to treat that individual’s emergency medical condition. CMS is also soliciting comments as to whether commenters are aware of situations where an individual with an unstabilized emergency medical condition was admitted as an inpatient and could not later be transferred to a hospital with specialized capabilities because that hospital refused to accept the transfer.
From our longstanding work with hospitals and Emergency Department staff regarding EMTALA issues, we have seen that there is often significant discussion and debate between transferring hospitals and hospitals with specialized capabilities who are asked to accept a transferred patient. As was the case with regard to previous regulatory proposals involving the respective responsibilities of transferor and transferee hospitals, the latest discussion initiated by CMS promises to be lively. Comments on the proposal are due February 22, 2011.