Proposal: no change - On February 2, 2012, CMS published a further "proposed rule" (Federal Register) on the applicability of EMTALA to (1) hospital inpatients and (2) hospitals with specialized capabilities. Comments must be received by April 2, 2012. This proposal is unusual because CMS proposes to make no change in the current rule, on two points, but it still wants public comment before finalizing its no-change decision.
The "background" section that applies to the inpatient issue notes the Supreme Court's decision in the case of Roberts v. Galen of Virginia, 525 U.S. 249 (1999), but does not say how the Court dealt with this issue. (The Court appeared to have assumed, without any analysis, that a transfer of a patient who had been a patient for several days would be subject to the EMTALA statutes and regulations.) It also discusses the 2003 final regulations which (most people supposed) determined that they would not apply. "We stated that EMTALA does not apply to any inpatient, even one who was admitted through the dedicated emergency department and for whom the hospital had initially incurred an EMTALA obligation to stabilize an EMC, and who remained unstabilized after admission as an inpatient."
It then notes that some had asserted that the fact that admission of a patient to the inpatient service at one hospital necessarily means that a transfer to a specialized hospital, made necessary by either the progression of the original condition or the emergence of a new condition, also cannot invoke EMTALA issues. It comments:
It thus issued a rule, in 2008, that this scenario does impose obligations under EMTALA.
In subsection D, it notes that "there continues to be a range of opinions" on the inpatient issue, citing Thornton, Bryan, Bryant, and Moses. (Recall that the court in Moses rejected the CMS rule at issue here, and applied EMTALA to a transfer of an inpatient from one hospital to another, taking the position that CMS did not properly interpret the statute.)
The proposal, for which comment is requested, is to make no change in the current regulations on the first point.
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)
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)
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