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American Academy of Emergency Medicine

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The Emergency Medical Treatment and Active Labor Act (EMTALA) was originally enacted as part of the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), 42 U.S.C. Section 1395dd.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.