Inpatients in the ED: Caught between two worlds

[Editor’s note: This column addresses readers’ questions about the Emergency Medical Treatment and Labor Act. If you have a question you’d like answered, contact Steve Lewis, Editor, ED Management, 215 Tawneywood Way, Alpharetta, GA 30022. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail: steve@wordmaninc.com.]

Question: The ED is the melting pot of the hospital, treating all clinical needs and all society strata. In the midst of this mixture are patients transitioning from outpatient status to the inpatient setting, many of whom stay in the ED for hours waiting for an available bed. Does EMTALA apply to these admitted emergency patients? If not, what laws apply? Who is responsible for their medical care?

Answer: Before 2003, the Centers for Medicare & Medicaid Services (CMS) was undecided whether inpatients were covered by EMTALA, notes M. Steven Lipton, JD, an attorney with Davis Wright Tremaine in San Francisco who specializes in EMTALA.

The courts also were split. Two judicial circuits held that EMTALA did not apply to inpatients. One circuit applied EMTALA twice to inpatients who were discharged in allegedly unstable conditions after hospital stays. One circuit applied EMTALA to a newborn waiting for neonatal transport. (See more on this case below.)

In the 2003 EMTALA regulations, the Centers for Medicare and Medicaid Services (CMS) decided that EMTALA did not apply to inpatients, Lipton says. CMS defined an inpatient as an individual who is admitted for bed occupancy with the expectation of remaining overnight and occupying a bed. In 2004, CMS reinforced this interpretation and stated that inpatients boarded in the ED awaiting a bed were not covered by EMTALA. Rather, their care was covered by the Medicare conditions of participation. Although the inpatient issue is settled for EMTALA enforcement purposes, Lipton says that only time will tell whether the courts that extended EMTALA to inpatients will change their views.

For EDs, having EMTALA patients and non-EMTALA inpatients in the same department may be an odd match, says Lipton. Although the level and continuity of care must be consistent between patients with similar clinical needs, the regulations and typical hospital policies may vary.

As a first step, he advises, emergency and other hospital personnel must recognize who is an emergency patient and who is an inpatient. For example, is a patient comes to the ED with physician orders for admission an inpatient or emergency patient? Although admitting orders are necessary for inpatient status, many hospitals patients do not consider patients to be admitted until accepted by the hospital. Despite the admitting orders, Lipton advises that it is best practice to treat the individual presenting directly to the ED as an emergency patient. Perform a medical screening and initiate stabilizing treatment as clinically indicated, pending acceptance for inpatient status by the hospital.

Once the patient is admitted and waiting for a bed, the emergency and admitting physicians must have clear lines of responsibility for monitoring the medical status of the patient, he continues. Which physician is in charge? Who is responsible to monitor the status of the patient? Who writes the treatment orders? Who is responsible for staffing the patient? Does the staff assigned to the patient meet the patient’s needs and acuity level (including hospital policies for inpatient staffing)? The answers to these questions should be addressed by the medical and nursing staffs, and reflected in policies and procedures, Lipson says.

One ramification of inpatient status is the impact on the EMTALA obligation of hospitals to accept the transfer of patients with unstabilized emergency medical conditions who require a higher level of care, Lipton says. If the individual is an inpatient, whether boarded in the ED or occupying an available bed, the EMTALA obligation to accept the patient does not apply (although state laws and contractual obligations may apply).

Another area of recent interest by CMS is the status of newborns delivered in the emergency setting. In 1999, a federal court applied EMTALA to a newborn waiting transport to a neonatal facility when the transferring hospital allegedly failed to treat or stabilize the infant before the transport. In May 2005, CMS released a policy memorandum addressing the application of EMTALA to newborns. The reason for the guidance was the 2002 enactment of the Born-Alive Infant Protection Act. That law requires that an infant born alive (whether by vaginal or cesarean delivery or by abortion) be considered a person under federal law, regardless of the prognosis for long-term survival, Lipton says.

In the memorandum, CMS stated that EMTALA applies to an infant born alive, and the hospital must provide a medical screening examination in two instances:

The infant is born alive in a dedicated ED (including most labor and delivery units), and there is a request by a parent for, or the infant needs, examination or treatment for a medical condition.

The infant born alive on hospital property outside of the dedicated ED, and there is a request by a parent for, or the infant needs, examination or treatment for a potential emergency medical condition.

However, Lipton adds, EMTALA does not apply when an infant born alive is an inpatient. Rather, the Medicare conditions of participation apply to the care and treatment of the infant after an inpatient admission. The Medicare conditions, he explains, require the hospital to have policies and procedures for appraisal of inpatients who develop an acute medical condition. He adds that CMS is in the process of clarifying whether infants treated as inpatients from the time of delivery, the practice in most hospitals, are ever covered by EMTALA.


For more information on the Emergency Medical Treatment and Labor act, contact:

  • M. Steven Lipton, JD, Davis Wright Tremaine, Suite 600, One Embarcadero Center, San Francisco, CA 94111-3611. Phone: (415) 276-6500.