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News about EMTALA (old items)

September 3, 2005 - EMTALA and disaster response - In the wake of the New Orleans disaster, questions have arisen about the proper role of EMTALA requirements for disaster response. There were reports that hospitals simply turned away people with minor medical problems because they had been inundated with large numbers of patients with major injuries and illnesses.

EMTALA is a requirement that applies in normal situations. Disaster response by definition takes place under extraordinary circumstances. When a hospital responds to a mass disaster, many of the normal rules and standards do not apply. Victims are not asked for an insurance card or to otherwise show an ability to pay before they are seen. Indeed, hospital personnel may not even take the basic demographic information from patients when doing initial triage.

All of these considerations would lead to the conclusion that medical personnel responding in an emergency situation should act as their professional judgment directs, without being concerned about whether their actions, in normal times, might be regarded as violating the EMTALA requirements.

The key point is to ensure that everyone who presents is being seen and attended to equally, without any consideration of or discrimination based on financial considerations. If that is done, then EMTALA should not be of any further concern to health care workers functioning in a disaster situation. We would not expect that CMS would investigate and cite hospitals for any but grossly noncompliant actions, and we would consider that lawsuits filed for alleged noncompliance could and should be vigorously defended.

We would consider a health care provider who put patients first to be doing precisely what humanity requires, even if it technically violates the law - just like Jabbor Gibson, one of the true heroes of this extraordinary event, a man who saved a hundred people by "stealing" a school bus and driving them to Houston.

March 19, 2005 - First TAG meeting - In May 2004, CMS created a Technical Advisory Group (TAG) to review and advise on its regulations governing EMTALA, pursuant to Congress' directive as contained in Section 945 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. The first meeting of the TAG is to be held at the Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, on Wednesday, March 30, 2005 and Thursday, March 31, 2005, from 9 a.m. until 5 p.m. each day. CMS is requesting and will accept written comments for the TAG's consideration by that same date. The notice, published in the Federal Register on March 15 (not much notice provided!) advises that all persons wishing to present or to attend must register by March 22, 2005, and specifies:

    You may register by sending an e-mail to EMTALATAG@cms.hhs.gov, sending a fax to the attention of Ronda Allen at fax number (410) 786–0681 or (410) 786–0169, or calling (410) 786–4548. All registration requests must include your name, name of the organization (if applicable), address, telephone and fax numbers, e-mail address (if available), and topic to be addressed (if you want to do a presentation).

November 18, 2004 - In September, the American College of Emergency Physicians published On-Call Specialist Coverage In U.S. Emergency Departments [PDF], an ACEP Survey Of Emergency Department Directors. Acting under a grant from the Robert Wood Johnson Foundation, ACEP surveyed over 1,400 hospitals to determine the extent to which specialty coverage requirements under EMTALA have affected the willingness of specialists to participate in call schedules.

Two-thirds of the respondents reported that they had less than adequate on-call coverage. The conclusion, in ACEP's words:

    "The study findings, coupled with the growing demands for emergency services, show further strain on an already frayed system. . .

    "The decrease in the number of medical specialists willing to be on-call to the nation’s emergency departments is a looming national health care crisis of supply and demand. While a large majority of specialists continue to take new patients and participate in the Medicare program, they are less willing to cover the nation’s emergency departments. The survey findings reflect the extent of this dilemma, with two-thirds of emergency physician directors citing problems. At this time, access for patients who may need immediate emergency care is compromised, particularly in local areas such as Los Angeles and Tucson, where hospitals and trauma units are closing. This complex issue must be addressed in an equitable way that turns the tide on specialists departing from historical on-call commitments to cover emergency departments."

At long last!
September 9, 2003 -- CMS has issued the Final Regulations [PDF](first proposed in May 2002 - see below), to be effective on November 8, 2003. We have posted a page comparing the key provisions of the new regulations with the May 2002 proposals. In addition, a detailed analysis by the Davis Wright firm can be found at its site.

May 21, 2003 -- The District Court in Wyoming has issued a decision in Dollard v. Allen which addresses the question of whether EMTALA requirements apply to an inpatient and offers a cogent analysis of the issue. See our commentary on this case.

January 25, 2003 -- Buried deep in the text of responses to commentary on the Final Rule for "Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2003 and Inclusion of Registered Nurses in the Personnel Provision of the Critical Access Hospital Emergency Services Requirement for Frontier Areas and Remote Locations" was a comment by ACEP that CMS has failed to recognize the additional costs imposed on emergency physicians for having to provide uncompensated care due to the EMTALA statute and regulations, and CMS's response that it already includes in the "practice expense per hour" an assumption that 55% of the time spent by emergency physicians treating patients is uncompensated. The PEPH figure is $33.00, and CMS says that it would be $14.90 if the uncompensated time had not been included. See Federal Register: December 31, 2002 (Volume 67, Number 251), at p. 79972.

September 18, 2002 -- On August 28, 2002, the Tenth Circuit issued its opinion in the case of St. Anthony Hospital v. Department of Health and Human Services. This is a rare decision reviewing administrative sanctions taken against a hospital by CMS, in this case for "reverse dumping", refusal by a hospital with specialized capabilities to accept a patient for whom a transfer had been requested. The opinion is worth reviewing for its elaboration of the factors that the courts will consider when determining whether a hospital "has the capacity to treat the individual" as provided in the EMTALA statute. The decision adopted a liberal definition of "specialized capabilities or facilities", agreeing with an adminstrative law judge that "Congress intended th[is] term to encompass those capabilities and facilities which enable a hospital to offer specialized care that is not offered by hospitals that are less well-endowed," i.e., the transferring hospital. It also upheld a finding of liability against the hospital based on the decision of a specialist (not a hospital employee) declining to accept the transfer of the patient.

June 25, 2002 -- On June 13, CMS issued its Program Memorandum on Simultaneous On-Call Responsibilities, revising its position to permit, with some restrictions, a physician to serve on a call schedule at more than one hospital simultaneously, "to promote the timely and economic delivery of appropriate quality of care to all patients in need of the specialty service in question".

May 16, 2002 -- CMS issued a new set of proposed regulations on May 9, 2002, significantly clarifying and limiting the scope of EMTALA obligations. The proposals include:

  • Adding a new concept of the "dedicated emergency department", including such areas as Labor and Delivery as well as the emergency room, and clarifying that EMTALA will not typically apply to a scheduled visit to a non-dedicated department.
  • Approving a "quick screen" [our words, not those of CMS] approach for persons presenting to a DED where an emergency medical condition is unlikely to be involved.
  • Clarifying the 250-yard rule to exclude non-medical locations such as restaurants and shops, and (most importantly) to exclude physicians' offices and other medical facilities that are separate Medicare participants. The proposal provides that a new emergency medical condition which develops while outpatient services are being received does not invoke EMTALA responsibilities for the emergency room.
  • Somewhat similarly, clarifying that a new EMC which arises in a previously stable inpatient is not governed by EMTALA.
  • Eliminating any EMTALA obligation for off-campus facilities, whether or not they are provider-based under the Medicare regulations, unless they regularly provide emergency services.
  • Adopting a general "rule of reason" approach for on-call obligations, and explicitly disavowing any numerical rule of thumb.
CMS is accepting comments on the proposals until July 1, 2002. The revisions should become final later this year. We provide here:
  • A link to the description of the proposals provided by the Oregon law firm of Davis Wright Tremaine, L.L.P.
  • The commentary as published by CMS in the Federal Register on May 9. (PDF format)
  • The wording of 42 CFR 489.24 incorporating the proposed revisions.

March 22, 2002 -- The Office of the Inspector General has issued its Final Rule (PDF format) dated April 17, 2002, making a number of technical corrections relating to its fraud and abuse enforcement activities. Included is an amendment to Section 1003.106, permitting OIG to consider, for purposes of determining an administrative penalty for EMTALA violations, "any other instances" of such conduct. The previous language had permitted OIG to consider the hospital's "prior history of offenses". This widens OIG's authority, permitting it to consider subsequent as well as previous violations, and to consider incidents which have not been found to be violations by a court or by an administrative law judge.

January 3, 2002 -- Sparrow Hospital in Lansing, Michigan has been sued by a patient who alleges that he was barred from Sparrow's outpatient dialysis unit as retaliation for filing a racial harrassment claim. The claim is based on alleged EMTALA violations, although it does not appear that the patient has ever in fact been denied treatment. See the story from the Lansing State Journal.

June 30, 2001 -- The General Accounting Office has released Emergency Care - EMTALA Implementation and Enforcement Issues (PDF format), a report mandated by the 2001 Consolidated Appropriations Act, to answer key questions regarding the EMTALA statutes and regulations. This report provides an excellent primer on EMTALA requirements and enforcement, including some comments about problems with current enforcement efforts and suggestions for changes to the system.

August 22, 2000 -- The regulations issued in April 2000 [provided here in PDF format] on the Prospective Payment System for Hospital Outpatient Services include an amendment of 42 CFR 489.24, changing the definition of "comes to the emergency department" and adding a new section governing off-campus "provider-based" departments. The new section of 489.24 incorporates the complex new provisions of 42 CFR 416.35, including its "250-yard rule". The characterization and approval of facilities and organizations as "provider-based" vs. independent will be important in the future in determining the extent of duties owed by various hospital-owned facilities under EMTALA. The amendment of the term "comes to the emergency department" to include all portions of the hospital's "campus" appears to be CMS's response to the 1998 Sercye incident in Chicago. (See our old news page.)

These new regulations became effective January 10, 2001. There was a minor amendment issued on August 3, 2000, liberalizing the "vicinity" requirement for certain hospitals.

July 8, 2000 -- The Missouri Court of Appeals has found that a physician who was nomimally on call but who was attending a CME session in a nearby town can be held liable to an emergency patient who sustained injuries resulting from a delay in treatment. The court rejected the physician's claim that there was no physician-patient relationship, finding that the fact that he was on call raised a duty to notify the hospital that he would not be available to respond to consultation requests. Millard v. Corrado, M.D., Missouri Court of Appeals, Eastern District. This case was based entirely on state law, but has obvious implications for EMTALA, given the fact that one of the two narrow bases for finding an EMTALA violation on the part of a physician is the failure to respond when on call.

August 18, 1999 -- The Sixth Circuit has reversed the finding of an Administrative Law Judge of violation of EMTALA in the case of a surgeon handling several trauma victims in a small rural hospital. Cherukuri, M.D. v. Shalala. This is a rare case of an appeal from an administrative enforcement action, and the court's condemnation of the ALJ's findings of fact and her disregard of testimony supporting the physician is particularly striking, given the fact that findings of fact are required to be upheld so long as there is substantial support in the record for them. We have also posted a major portion of the Department Appeals Board ruling.

January 14, 1999 -- The Supreme Court has issued a fairly terse per curiam opinion in the case of Roberts v Galen of Virginia, Inc., which was argued just a couple of months ago. The Court has rejected the position accepted by one line of authority in the Federal Circuits, to the effect that an "improper motive" for failure to treat, and not just a failure to provide treatment, must be found in order to establish liability under EMTALA. See our discussion of this case.

December 15, 1998 -- The Office of Inspector General and the Health Care Financing Administration have issued a request for comments on their proposed Special Advisory Bulletin addressing the continued tension between the requirements under EMTALA and requirements for advance approval of care imposed by managed care organizations and HMOs. The fact that compliance with EMTALA takes precedence is not a new policy, as readers of our FAQ know, but the agencies apparently feel that it needs emphasis.

August 21, 1998 -- The new proposed regulations to overhaul the Conditions for Medicare Participants were published in the December 19, 1997 Federal Register. They include a proposal to recognize "part-time emergency rooms" for hospitals in rural areas, and under section 482.50, they state "It is our policy that a hospital that offers emergency services on a regular, part-time basis is not considered to have an emergency department under section 1867 [EMTALA] at the scheduled times when emergency services are not available." We provide the full Federal Register publication in PDF format, and a plain-text version of the section on Emergency Services.

June 3, 1998 -- HCFA has announced its intention to decertify Ravenswood Hospital Medical Center in Chicago unless the hospital changes its policies. Allegedly because of a hospital policy prohibiting personnel from leaving the grounds while on duty, emergency room personnel failed to provide assistance to 15-year-old Christoper Sercye, who had been shot at a nearby school playground and whose friends had brought him to an alley just off hospital grounds. The boy died from his wounds. See http://www.abcnews.com/sections/us/DailyNews/medicare980529.html for an Associated Press report.

A Usenet posting states:

"Local reports indicate that hospital personnel on cigarette breaks watched Sercye bleed to death and did nothing. . . Those same reports state that Chicago Police Department officers, frustrated with hospital personnel inaction and irritated at waiting for an ambulance to arrive so that the young man could receive the medical attention which was a only few steps away, entered the emergency room, removed a wheelchair, took it to the lifeless Sercye, and wheeled him into the emergency room as hospital personnel watched without helping."

Left unanswered is the question of what law the hospital is thought to have violated. The EMTALA cannot be implicated in a case where the patient is never brought to the hospital seeking treatment.

May 3, 1998 -- The U.S. District Court for the District of Puerto Rico has ruled in the case of Morales v Estado Libre Asociado de Puerto Rico, 967 F.Supp. 42 (D.P.R. 1998) that the Eleventh Amendment bars claims under the EMTALA against a state-owned hospital.

February 23, 1998 -- The Law Journal Extra site has posted a synopsis of the case of Almond v. Town of Massena, a ruling by a New York state court, holding that there is no claim against a physician for a violation of EMTALA provisions. Law Journal Extra says that this was an issue of first impression in New York; readers of our FAQ have known that this is the weight of authority in Federal courts.

February 21, 1998 -- A prosecutor in Northern California filed murder charges against an E.R. physician whose infant patient died in transit after he was sent to another hospital 50 miles away, being driven by his parents by automobile rather than being transported by ambulance. After the prosecution rested its case, the judge entered a directed verdict of acquittal, finding that the prosecution had failed to raise enough evidence to support the criminal charge. See Negligence or Homicide? California Physician on Trial in Infant's Death for a discussion of the case.

October 17, 1997 -- The U.S. Supreme Court has been asked to review the case of Roberts v Galen of Virginia, Inc., 111 F.3d 405 (6th Cir. 1997), a decision holding that the plaintiff must prove that a hospital acted with an improper motive in transferring the patient, and that the mere fact of a transfer before the patient is stabilized, without more, is insufficient to prove a violation. The issue is whether the Sixth Circuit erred in following the line of authority begun in Cleland v Bronson Healthcare Group, 917 F.2d 266 (6th Cir. 1990), and which (according to the plaintiffs) has not been accepted by any other Circuit. Update 6-12-98: The Supreme Court has granted certiorari and will likely hear the case in the 1998-99 Term.

We include here a link to the Sixth Circuit opinion.

December 23, 1996 -- The Fourth Circuit Court of Appeals has rendered a decision which limits the EMTALA requirements for ongoing treatment imposed in In Re Baby K. See our discussion of the case of Bryan v Rectors of the University of Virginia, handed down in September 1996. The text of the opinion can be found here.

September 9, 1996 -- The Eighth Circuit Court of Appeals has issued its en banc decision in the case of Summers v Baptist Medical Center Arkadelphia, vacating the previous decision of a three-judge panel and reinstating an order dismissing the plaintiff's EMTALA claims against Baptist Medical Center.

Click here for our discussion of this case and to find out why this decision is the most significant EMTALA opinion of 1996.

The full text of the opinion can be found by clicking here. The full text of the first Summers decision is provided at this site.

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