The U.S. Centers for Medicare & Medicaid Services recently affirmed Emergency Medical Treatment and Labor Act (EMTALA) obligations end upon inpatient admission to an admitting hospital, but left open for comment the issue of EMTALA obligations of hospitals with specialized capabilities to accept inpatient transfers.

In the February 2, 2012, Federal Register the U.S. Centers for Medicare & Medicaid Services (CMS) affirmed an admitting hospital's obligations under the Emergency Medical Treatment and Labor Act (EMTALA) end upon inpatient admission to that hospital, and invited comment on the issue of EMTALA's applicability to inpatient transfers to hospitals with specialized capabilities.

EMTALA requires Medicare-participating hospitals to provide a medical screening examination and stabilizing treatment to individuals who present to the hospital's "dedicated emergency department" or elsewhere on the hospital campus and request examination or treatment for a medical condition. Hospitals that fail to comply with EMTALA risk survey, corrective action obligations and termination of their Medicare provider agreement. Passed as part of the COBRA law in 1985, EMTALA has been refined by rulemaking and through court cases regarding various components of the requirement.

EMTALA Obligations of the Admitting Hospital—CMS Affirms Prior Position

Historically, the EMTALA obligation of the hospital to which an individual presents (the "admitting hospital") was deemed complete upon the good faith admission of the individual for inpatient treatment. CMS reasoned that other components of the regulatory scheme—namely, the Conditions of Participation for Hospitals and state tort law—functioned to protect the individuals once admitted as inpatients. This reasoning was tested in 2010, when CMS solicited comments as part of proposed rulemaking regarding the EMTALA "final rule" issued in 2003 and modifications made to that rule as part of the 2009 Inpatient Prospective Payment System rule.

CMS requested examples from stakeholders to educate it on access to care issues and whether a policy review was warranted. Comments received validated CMS' prior position that there was no need to extend the obligations of admitting hospitals, leading to the conclusion that "[CMS is] maintaining our current policy that, if an individual 'comes to the [hospital's] emergency department'... and the hospital provides an appropriate medical screening examination and determines that an [emergency medical condition, or EMC] exists, and then admits the individual in good faith in order to stabilize the EMC, that hospital has satisfied its EMTALA obligation towards that patient."

EMTALA Obligations of the Hospital with Specialized Capabilities—Comments Invited

Also as part of the 2010 proposed rulemaking, CMS proposed hospitals with "specialized capabilities"—like burn or trauma units—have an obligation under EMTALA to accept transfers from admitting hospitals of inpatients who continue to have an unstable EMC after admission that requires specialized care otherwise not available at the admitting hospital. The majority of the comments CMS received in response to the 2010 proposed rule supported making no change to the current requirements, which do not place an EMTALA obligation on a hospital with specialized capabilities to accept the transfer of an inpatient. However, rather than affirming the validity of its current position, CMS has again solicited comments so that the public may "submit data or real world examples that are relevant to this issue." CMS also stated it will monitor whether it may be appropriate in the future to reconsider the issue.

The Bottom Line

What does this mean for my hospital? In-house counsel, compliance officers and others charged with maintaining a hospital's EMTALA policies and procedures, and educating staff on the hospital's obligations related thereto, should be aware of CMS' affirmation of its position on admitting hospitals. CMS' affirmation of its prior position provides the regulatory "seal of approval" that should eliminate debate on this issue, at least in the short term, and provide hospitals with a degree of certainty regarding the role of the admitting hospital. More important, hospitals should be aware of the potential for future rulemaking related to the obligation of hospitals with specialized capabilities to accept inpatient transfers.

Does this require changing EMTALA policies and procedures? No, so long as the EMTALA policies and procedures are current. The recent publication reaffirmed CMS' existing position on the EMTALA obligations of the admitting hospital and solicits comments on the obligations of hospitals with specialized capabilities to accept certain inpatient transfers. Neither results in the need to change up-to-date EMTALA policies and procedures.

Does anything need to be done in response to the publication? Hospitals or others who would like to comment on the potential for placing EMTALA obligations on hospitals with specialized capabilities to accept inpatient transfers may do so by providing comments to CMS on or before May 2, 2012. Contact information is available at the end of the Federal Register publication.

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