EMTALA: The Basic Requirements, Recent Court Interpretations, and
More HCFA Regulations to Come
by James L. Thorne, Esq.
Introduction
The Emergency Medical Treatment and Active Labor Act (EMTALA) was
originally enacted as part of the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA), 42 U.S.C. Section 1395dd. Congress
added this new section (Section 1867) to the Social Security Act due to
wide-spread concerns that hospitals were turning away or transferring
patients who were in need of emergency medical care but who were unable
to pay for the needed services.
In 1994 the Health Care Financing Administration (HCFA) issued
interim final regulations to implement EMTALA (42 CFR 489). Yet, due to
federal Paperwork Reduction Act "technicalities," the regulations were
not enforced until September 1995. Over the succeeding years, the
regulations have been amended to add additional requirements for
hospitals and physicians.
Initially, the law was enacted to stop patient "dumping." However,
over time, EMTALA has become what it is today—a federally mandated
standard of practice for "participating" hospitals (those that have a
Medicare provider agreement) and "any physician who is responsible for
the examination, treatment, or transfer of an individual in a
participating hospital including a physician on-call for such an
individual."
What Does the Law and the Regulations Require
EMTALA requires hospital emergency departments (EDs) to provide any
individual coming to their premises with a medical screening exam (MSE)
to determine if an emergency condition or active pregnancy labor is
present. If so, the hospital must supply either stabilization prior to
transferring the patient or a certification (signed by the physician)
that the transfer is appropriate and meets certain conditions.
The 1994 "interim final regulations" include the following
requirements:
Logs and other record
keeping regarding individuals coming to the ED.
Signage in EDs
specifying rights of individuals with regard to examination and
treatment and whether the hospital accepts Medicaid.
Maintenance of
physician-on-call lists and information on physicians who refuse or fail
to appear to provide timely stabilizing treatment.
Documentation by
patients or someone acting on their behalf for an informed refusal of
treatment, or an informed request for or refusal of transfer.
Protection for
"whistle-blowers" who refuse to authorize an inappropriate transfer or
who report a violation of the regulations.
Receiving hospitals
must report incidents to HCFA or the delegated state agency, within 72
hours when they believe the sending facility may be violating the
regulations. Failure to report can subject the receiving hospital to
termination from Medicare.
The U.S. Supreme Court's First Interpretation of EMTALA
The U.S. Supreme Court decided its first EMTALA case on January 13,
1999, in Roberts v. Galen of Virginia, 119 S. Court 685.
Clearly, the Supreme Court's first EMTALA decision is far more important
for what it did not decide rather than what it did decide. In the words
of a fellow-practitioner, "the Court stuck its judicial toe into
EMTALA's waters, found them icy and turbulent, and quickly hopped back
to dry land."
Facts. In Roberts, the plaintiff Wanda Johnson was run
over by a truck in May 1992 in a small Kentucky town then flown to
Humana Hospital in Louisville (predecessor to Galen of Virginia). She
had no private health insurance and had not qualified for Kentucky
Medicaid. The hospital and doctors provided treatment for her injuries
(including surgery to remove her spleen) and she was placed on a
ventilator. Over two months later, Ms. Johnson was taken off the
ventilator and placed in the hospital's "step-down unit" in preparation
for transfer to a non-acute care setting.
Obtaining consent for Ms. Johnson's transfer from her or other family
members proved to be difficult, if not impossible. The hospital social
worker responsible for placing her recalled that family members were not
responsive. However, the hospital maintained contact with the only
family member who appeared cooperative, Johnson's aunt, Jane Roberts,
who later became Ms. Johnson's guardian.
After being turned down by two facilities, Ms. Johnson was accepted
for transfer to a near-by nursing home in Indiana. However, on the day
before her transfer she developed a high fever due to a urinary tract
infection, a lung infection, or both, and she was transferred to an
acute care facility in Indianapolis, IN, where she stayed for six
months.
Asserted EMTALA Violations. In August 1993, guardian Roberts
brought suit on behalf of Johnson, asserting violations of EMTALA's
stabilization and transfer requirements, as well as other legal
theories. The hospital contended that the transfer procedures under
subsection (c) of the law did not apply because prior to the transfer
Johnson had been "stabilized" within the meaning of the statute—that "no
material deteriorization of the (emergency medical) condition was
likely…to result from or occur during the transfer.
At the district court level, that court determined the plaintiff had
not shown that either the medical opinion that Johnson was stable or the
decision to authorize her transfer was caused by an improper motive. On
appeal, the Sixth Circuit Court of Appeals affirmed the lower court
decision. The Sixth Circuit had previously held that a showing of
improper motive was required to make out a claim under EMTALA relating
to allegedly "inadequate screenings." Here, the Sixth Circuit used the
improper motive test to apply to the "stabilization and transfer"
section of EMTALA. However, the Sixth Circuit did not, apparently,
address whether or not Johnson was stable. The U.S. Supreme Court
granted certiorari on the single issue of whether the improper motive
test should apply to an allegedly wrongful transfer.
Supreme Court's Reasoning and Decision. On certiorari, the
hospital adroitly capitulated on the "disputed" stabilization issue (so
that the Court would not have an opportunity to rule against it) and
argued, instead, that there were two alternative grounds why the Court
should affirm the Sixth Circuit decision. First, a transfer by a
hospital does not violate EMTALA if the physician ordering the transfer
lacks actual knowledge that the patient has an emergency medical
condition. Second, according to the hospital, precedent from other
federal Circuit Courts established that "EMTALA does not apply to
treatment and discharge decisions occurring after a patient's initial
screening and stabilizing treatment."
Alternatively, the United States' amicus brief, in support of the
petitioner/plaintiff, asserted that "EMTALA imposes minimum substantive
standards of Medical care" regarding screening, stabilization, and
transfer. According to the government, EMTALA's "medical standard of
care" is a modified "reasonableness" standard that is "akin to the kind
of negligence standard that is familiar in state tort law." Not
surprisingly, the hospital urged the Court to reject the government's
"suggestion that EMTALA must be read expansively" and warned that the
federal government would be encroaching on "an area traditionally
regulated" by the states.
In the end, the Court refused to resolve broader issues under the
statute. Stating that it had "granted certiorari on only the EMTALA
issue—by which it presumably meant the improper-motive issue—the Court
opined that the two alternative grounds urged by the hospital "do not
appear to have been sufficiently developed below for us to assess them
in any event." Noting the concession by the hospital on the "improper
motive" issue, the Court held "that Section 1395dd(b) (stabilization and
transfer) contains no express or implied 'improper motive' requirement,"
and remanded the case.
Selected EMTALA Court Decisions After Roberts
On March 22, 1999, the U.S. Supreme Court declined to review a Fourth
Circuit decision involving the application of EMTALA to a patient
transfer (Baxter v. Holy Cross Hospital of Silver Spring, U.S.,
No. 98-1169, cert. denied). In this case, Leo Scafidi argued he was
unstable and should not have been transferred to a nursing home 30 days
after he was admitted to a hospital with cardiac and kidney problems.
The Fourth Circuit had affirmed lower court decision that after a
hospital stabilizes a patient, EMTALA drops from the picture and
subsequent disputes are governed by state medical malpractice law. The
Supreme Court let that decision stand.
On April 14, 1999, the U.S. Court of Appeals for the First Circuit
reversed a prior District Court decision (Dist. of Puerto Rico) and held
that plaintiff can sue under EMTALA based on the transfer of his
allegedly medically unstable baby from the hospital where he was born to
a neonatal intensive care unit at another facility (where the baby died
the next day) (Lopez-Soto v. Hawayek, 1st Cir., No.98-1594). The
Appeals Court judge held that the right to sue over a transfer under
EMTALA is not confined to patients who first entered a hospital through
its emergency department and was transferred later. The judge held that
the right to sue rises whenever a hospital patient is found to have an
emergency medical condition, regardless of how the patient entered the
hospital.
On May 3, 1999, the U.S., Court of Appeals for the Sixth Circuit held
that a surgeon's transfer of two seriously injured patients from a small
rural hospital (that lacked a trauma center) to a teaching hospital
equipped to perform brain surgery did not violate the EMTALA. The
decision set aside a $100,000 fine imposed against the surgeon in an
enforcement action by the HHS’ Office of Inspector General (Cherukuri
v. Shalala, 6th Cir., No. 97-4464).
So, Where Are the Courts Going on EMTALA and What Questions Remain
Lurking
Borrowing from others, several important EMTALA questions remain to
be answered. AAEM members should at least consider the following:
Does the statute even
apply to transfers made from outside the emergency department (see above
Lopez-Soto case)?
If so, what sort of
stabilizing treatment is sufficient to extinguish any further EMTALA
obligations regarding transfers?
If the original
emergency medical condition is at any time stabilized, does that
eliminate all later obligations under EMTALA regarding transfers?
Can a new and different
"emergency" condition arise during an inpatient hospitalization that
invokes EMTALA's restrictions on unstabilized transfers?
In that event, does the
fact that the transferring physician believes there is no emergency
condition eliminate any EMTALA liability?
Can an individual be
stable for purposes of transfer to an acute care hospital, but be
unstable for purposes of transfer to a nursing home?
More HCFA Regulations on EMTALA Are, Apparently, on the Way
In the Roberts case referred to above, the U.S. Assistant
Solicitor surprised observers by announcing that HHS would soon
institute rules to address the EMTALA issues in that case and other
EMTALA issues as well. Therefore, before the U.S. Supreme Court has (or
takes) another opportunity to address the above issues, it appears that
the health care industry will see the views of HHS on these subjects.
The prospect of federal oversight of all discharge and transfer
decisions regarding inpatients is sure to heighten the interest and
opinions of all involved. Given the Supreme Court's action (or lack
thereof) in the Roberts case, expect the HCFA regulatory proposal
before the coming Fall 1999.
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