News about EMTALA

Comments requested - CMS is requesting comments (Federal Register, 12-23-10) on whether it should revisit the issue of whether EMTALA obligations should continue after a patient is admitted as an inpatient, and whether the patient's status at the referring hospital should make a difference as to the obligation of receiving hospital to accept the patient in transfer. The apparent impetus for this request is the decision of the Sixth Circuit Court of Appeals in the 2009 case of Moses v. Providence Hospital, in which the Court ruled that the obligations of a hospital under EMTALA continued until the time that the individual’s emergency medical condition is stabilized, regardless of whether he had been admitted as an inpatient or not. In that case, remarkably, the Court was unwilling to defer to CMS’s policies on this issue, and specifically held that CMS had misinterpreted the statute. (January 6, 2011)

More on emergency exemptions - CMS has issued Transmittal 60 (PDF), which provides a further amendment to 42 CFR 489.24(a) and to the Interpretive Guidelines as they pertain to that section. When an emergency has been declared and HHS has issued an waiver under Section 1135, hospitals will be paid and will not be subject to sanctions for transfers that have been required by a designated agency, if the hospital is in the emergency area and if the transfer is related to the emergency. For pandemic emergencies, the waiver is open-ended; for other emergencies, it will last for only 72 hours after the hospital invokes its disaster protocol. (July 31, 2010)

Emergency exemptions - The Final Rule with Transmittal 46 (PDF) once again made changes to the language of 42 CFR 489.20 and 489.24(a)(2). The latter provides for exemptions from otherwise-applicable EMTALA provisions in the event of a national emergency or a pandemic emergency. The changes specify that the exemption will apply to a particular inappropriate transfer only if "the transfer is necessitated by the circumstances of the declared emergency in the emergency area during the emergency period". We have updated the language of section 489.24(a)(2) under our Primary Law section to reflect these changes. (October 10, 2009)

New Final Rule issued - A massive collection of new amendments, coming to over 650 pages, was issued on August 19, 2008. Many of the regulations governing participating hospitals and physicians were amended. We have posted selections from the Final Rule (PDF), limited to the new provisions regarding EMTALA. The most significant amendments are

New rule for small hospitals - A new subparagraph (v) was added to 42 CFR 489.20 in July 2007. It applies to small hospitals, mostly in rural locations, that do not provide 24-hour-a-day, 7-day-per-week coverage by physicians. The new subrule requires that the hospital provide written notice of the fact that there is no physician present, "in order to assist the patients in making informed decisions regarding their care". It further obligates the hospital to include in the notice "how the hospital will meet the medical needs of any patient who develops an emergency medical condition, as defined in § 489.24(b) [one of the EMTALA rules], at a time when there is no physician present in the hospital". (September 4, 2007)
Update - subsection (v) was redesignated as subsection (w) in the August 2008 Final Rule.

Exemption in emergencies - Subsection (2) of 42 CFR 489.24(a) was also revised to provide for exemptions from EMTALA compliance in the case of national emergencies and for situations in which state pandemic plans call for movement of patients to alternative examination locations. This has been done under the authority of, and to comply with, the new provisions of section 1135 of the Social Security Act, 42 U.S.C. 1320b–5. Except in the case of pandemics, the subrule provides that the exemption is limited to a 72-hour period. (September 4, 2007)