Supreme Court Turns Down EMTALA Case Prompts CMS to Reconsider Applying EMTALA to Inpatients
Changes could markedly increase hospital liability related to inpatients and require hospitals with specialized capabilities to accept appropriate transfers of inpatients, not just ED patients.
By Robert A. Bitterman, MD, JD, FACEP, Contributing EditorPresident, Bitterman Health Law Consulting Group, Inc.
The U.S. Supreme Court declined to review the controversial 6th Circuit decision in the case of Moses v. Providence Hospital, where the federal appeals court rejected Centers for Medicare & Medicaid Services' (CMS) rule that EMTALA ends once a hospital admits a patient in good faith for further stabilizing care.1
In Moses, the issue was whether EMTALA applied to the discharge of a psychiatric patient from the hospital inpatient setting many days after he had been admitted through the emergency department (ED) for stabilizing care. After discharge, the patient went home and later murdered his wife, so the family sued Providence Hospital under EMTALA for failure to stabilize the patient prior to discharging him home. Under EMTALA, all discharges from the hospital are legally defined as "transfers," regardless of whether the discharge is from the ED or inpatient setting.2 Thus, the plaintiff's claim was for "failure to stabilize the patient prior to transfer," as required by EMTALA.3
CMS, the government agency charged with interpreting EMTALA, had previously specifically addressed the issue of application of EMTALA to inpatients. It originally proposed to apply EMTALA to inpatients admitted through the ED until their emergency medical condition (EMC) was stabilized, but not to other inpatients or even to those admitted via the ED if they developed a "new" EMC sometime after the admitting emergency was stabilized.4
However, after a torrential condemnation from the medical community, and considering court opinions, particularly the reasoning of the 9th Circuit in the case of Bryant v. Adventist Health System,5 CMS reversed its interpretation. In September 2003, it published regulations holding that EMTALA ends when the patient is formally admitted to the hospital, if the admission is in good faith and not done to circumvent the hospital's obligations under the law.6,7
CMS noted that other patient safeguards protect patients once they are admitted to the hospital, such as the Medicare conditions of participation and state malpractice law.7
6th Circuit Court of Appeals8
The 6th Circuit in Moses rejected CMS' interpretation, and giving no deference to the agency's rulemaking authority, it overruled CMS' regulation that EMTALA ends when the hospital admits the patient in good faith.6,9 The court determined that the rule was contrary to EMTALA's plain language, which requires a hospital to "provide ... for such further medical examination and such treatment as may be required to stabilize the medical condition."10 Additionally, the court gave no credence to the myriad of other federal and state courts that had addressed the issue and affirmed CMS' view that EMTALA ends upon admission.11,12
Therefore, the 6th Circuit appellate court held that the hospital was required under EMTALA not just to admit the patient into an inpatient unit for further care, but actually to treat him such that he was stabilized before discharge.3
United States Solicitor General and
the Supreme Court
The office of the U.S. Solicitor General (Elena Kagen; now Supreme Court Justice Kagen) filed a brief urging the Supreme Court to decline to accept the Moses case for review.13 It noted that Congress expressly authorized CMS to promulgate rules and regulations interpreting and implementing EMTALA.14 Furthermore, since Congress did not speak directly to this issue, expressly stating that EMTALA continues indefinitely after screening and stabilizing treatment in the ED, CMS' interpretation, while not the only permissible interpretation, was certainly a reasonable interpretation consistent with the statutory text, structure, purpose, and history of EMTALA. Accordingly, the appellate courts should have afforded deference to CMS on its regulations.13
The Solicitor General informed the court that CMS intended to reconsider its regulations related to the application of EMTALA to inpatients, and that it was committed to requesting comments from the public in 2010 and to proposing new rulemaking in 2011. Interpreting EMTALA to extend beyond the ED, as the 6th Circuit did, raised other questions not answered by Congress, questions which the Solicitor General felt would benefit greatly from CMS' expertise and experience, and from public comment during a rulemaking process, as CMS reconsidered how best to effectuate Congress' intent. For example, it noted that when CMS proposed in 2002 to extend EMTALA to inpatients, it did not propose to extend it to all inpatients.13
Curiously, the Solicitor General did not believe, as did the hospital appealing the case, that the 6th Circuit's decision would have "significant ramifications" for hospitals in the 6th Circuit (see below for a counter argument), even though it did think the 6th Circuit erred in holding that EMTALA's coverage unambiguously continued after an individual was admitted to the hospital in good faith.13
Once before, the Supreme Court refused to decide whether EMTALA applied to inpatients, stating that the issue had not yet been "sufficiently developed below [in the trial or appellate courts] for us to assess the argument."15 With the 6th Circuit's decision in Moses, and a now clear split in the interpretation of the federal appellate courts, it sure seemed the issue was "sufficiently ripe" for the court to hear, but it demurred once again.
CMS to Reconsider if EMTALA Applies to Inpatients
In response to the Moses case and the Supreme Court's decision to refuse to hear the case on appeal, exactly as promised by the U.S. Solicitor General, in late 2010, CMS published an "advanced notice of proposed rulemaking" soliciting comments on whether it should rewrite two key rules on the application of EMTALA to hospital inpatients.16
Q1. First, should EMTALA apply to hospitals which admit patients for stabilizing care; and
Q2. Second, should hospitals with specialized capabilities be required to accept patients in transfer after they have been admitted at another hospital?
The second question was posed because in 2008, CMS issued a rule that hospitals with specialized capabilities did not have an EMTALA obligation to accept appropriate transfers of individuals who had been admitted in good faith as an inpatient at the first hospital.17 Originally, similar to the first inpatient issue, CMS had proposed that these hospitals would be required to accept transfers of inpatients that the admitting hospital was unable to stabilize, assuming that the transfer of the individual was an appropriate transfer and that the accepting hospital had the capacity necessary to treat the individual.
After considering the comments it received, reviewing the EMTALA Technical Advisory Group recommendations, and weighing various pros and cons, CMS changed its mind yet again, and ultimately determined that specialized hospitals do not have an obligation under EMTALA to accept inpatients from other hospitals. In other words, because EMTALA ended for the hospital that admitted the patient, no other hospital had an EMTALA duty to accept the patient in transfer, even if the admitting hospital was not able to stabilize the patient.
The 6th Circuit's decision, if left to stand, or if it becomes the law of the land, would void CMS' regulation that hospitals are not required to accept inpatients in transfer. If EMTALA continues through admission until discharge, CMS loses its basis for claiming that hospitals do not have to accept inpatients with emergency conditions (EMCs) in transfer.17,18
Comments from the Medical Community on Question #1
Numerous hospital and physician organizations submitted comments to CMS. On CMS' first question, all uniformly and strongly beseeched CMS to retain its existing rule that once a hospital admits a patient in good faith, the hospital has no further obligations under EMTALA notwithstanding the 6th Circuit's ruling in the Moses case that the law's stabilization requirement applies to the discharge of inpatients, as well as the discharge of ED patients.19
Each reminded CMS that from a public policy perspective, there is no need for EMTALA to "protect" inpatients from being dumped by hospitals. First, all inpatient care is already subject to governance by a host of Medicare regulations, accreditation standards, and existing state-hospital licensure laws. (See Table 1, which outlines the extensive list of statutory and regulatory protections already provided to inpatients by the federal government.) Second, the act of admitting a patient establishes a doctor-patient relationship and hospital-patient relationship and, therefore, the hospital and admitting physicians have a legal duty to treat that patient according to the standard of care or they commit malpractice and/or legal abandonment, which are actionable under state law if the patient suffers any harm.
EMTALA's original purpose was to attach a duty that did not exist previously for hospital emergency departments. Pre-EMTALA, hospitals could deny emergency care or transfer (dump) patients from their EDs because there were no existing federal or state laws requiring them to examine, treat, or admit patients (at least in about half of the states). This allowed hospitals to avoid the attachment of state-law duties by refusing to treat or admit patients. Post-EMTALA, hospitals must medically screen/examine patients, and if an EMC is discovered, they must stabilize the patient before transfer. EMTALA obligates the hospital to treat the patient's emergency condition before transfer or discharge, and the primary way hospitals do that is by admitting the patient for care beyond the ED.
Additionally, CMS' requirement that the admission be in "good faith," and not a ruse to avoid liability under EMTALA, also serves to protect inpatients.
If CMS allows the law to be applied to inpatients (or to prolonged boarding of admitted patients in the emergency department), then EMTALA truly does become a federal malpractice act, which the courts have assiduously been trying to avoid. Significantly, it makes the hospital directly liable for the negligence of its physician staff. Plaintiffs will not even have to sue the physicians; they can sue the hospital directly under EMTALA for all damages resulting from the physician's negligent stabilization of the patient, contrary to the current law in most states in our country.
Furthermore, the hospital and admitting physicians, just like emergency physicians, would be subject to civil monetary penalties (CMPs) and termination from Medicare for negligently failing to stabilize the patient prior to discharge from the inpatient setting. Routing "premature discharge claims" for inpatients will now be EMTALA violations, and every family or plaintiff attorney concerned that "grandma was sent home too early" can trigger a 2-3 day investigation of the hospital under EMTALA, with its attendant costs of time, effort, public-relations stigma, and drain of monetary resources of hospitals already strained financially.
If EMTALA applies to inpatients, then CMS or the courts not only create a federal malpractice statute for "failure to stabilize," they strip the states of their sovereign ability to determine, for themselves, the balance necessary between tort remedies and tort protections to ensure the availability of access to care for its denizens. EMTALA preempts all state tort laws that conflict with it, including the state laws limiting liability, such as municipality immunity, charitable immunity, and state tort reforms, such as expert-witness requirements, discovery limitations, and statutes of limitation. In addition, some state and federal courts have held that a state's cap on noneconomic damages does not apply to EMTALA claims, contravening the intent of the state legislature.20
Note that EMTALA is already a federal malpractice act for emergency departments; every patient diagnosed with an EMC and treated and released from the ED is subject to a failure to stabilize claim under EMTALA. Thus, once the ED determines a patient has an EMC, the patient can sue the hospital under EMTALA for damages if the hospital negligently failed to stabilize the patient in the ED, either before transfer to another hospital or before discharge to home.
EMTALA was meant to prevent dumping, the transfer of unstable patients from one hospital to another because of economic reasons. It was not meant, nor is it needed, to govern the treatment of patients with EMCs in the hospital inpatient setting.
Comments from the Medical Community on Question #2
Whether hospitals with specialized capabilities should be required under EMTALA's non-discrimination section to accept inpatients from other hospitals is much more controversial.21
Academic and tertiary hospitals vehemently oppose any more obligations to accept still more patients in transfer. They make a cogent argument that applying EMTALA obligations to inpatients will increase the pool of patients who could be transferred inappropriately or unnecessarily, which will further burden already overcrowded facilities and subject them to additional regulatory and civil liability.
However, EMTALA was passed to prevent hospitals from denying emergency care to the indigent. If a tertiary hospital refuses to accept an inpatient in transfer with an emergency condition that the transferring hospital can't stabilize, simply because the patient has no insurance, how is that any different? Why should it matter if the patient is in the ED or the inpatient setting? Remember, the transfer acceptance mandate was actually added long after EMTALA was originally passed. It was enacted precisely to prevent more capable hospitals from refusing to accept appropriate transfers for economic reasons, hence the title "non-discrimination section."
If EMTALA's non-discrimination section does not apply to inpatients, then we are, in essence, sanctioning economic discrimination against inpatients with EMCs. Now inpatients, instead of ED patients, are the class of persons discriminated against for economic reasons. Is it likely the federal courts will establish two different legal standards of emergency care depending upon whether the patient is an ED patient or an inpatient, and allow hospitals to, once again, legally deny emergency care to the uninsured?
Patients presently are at risk of death, just like before EMTALA was passed, because referral hospitals may refuse transfers of individuals with EMCs on account of their insurance status "because EMTALA ended upon admission."
The plain language of the non-discrimination section, though, does not condition the acceptance of such patients on their location in the transferring hospital, whether their EMC is stable or unstable at the time of transfer, whether they entered the hospital via the ED, or whether the law still applies to the transferring hospital at the time the transfer is medically necessary.21 The application of EMTALA, and access to emergency medical care, shouldn't depend on which door patients entered the hospital through, or their admission "status" in their hour of need.
If the patient has an EMC, and the hospital is unable to treat that emergency condition, and it is medically indicated that the patient be acutely transferred to another hospital to treat the EMC, then EMTALA's non-discrimination section should require the receiving hospital to accept the patient in transfer whenever it is capable of treating the emergency.
Will Hospitals Accept Inpatient Transfers Absent an EMTALA Obligation?
CMS asked for comment on the accuracy of its statement in its 2008 final rule that "a hospital with specialized capabilities would accept the transfer of an inpatient with an unstabilized EMC, absent an EMTALA obligation."16
This is generally true of most hospitals most of the time, but it definitely is not routinely true. Many hospitals across the country, including tertiary and academic medical centers, large referral hospitals, and small community hospitals, have set up "transfer-acceptance systems" that are specifically designed to accept only those transfers that they are mandated to accept under EMTALA (and under state law, if their state has a law governing the acceptance of transfers).
Even if a hospital is willing to accept all patients in transfer, its medical staff certainly is not. Many physicians who take on-call duty at these hospitals do not want the burden of accepting transfers from outside facilities, especially uninsured patients, and particularly if they feel as if they are "being dumped upon" by outside communities. Therefore, the hospital fashions it transfer-acceptance system to only accept EMTALA-mandated transfers, and it then leaves the option of accepting or rejecting non-EMTALA-mandated transfers to the individual medical-staff members.
Another way to look at this issue is to understand that when the physicians are on-call, they represent the hospital, not their private practice and, as such, they must accept EMTALA-mandated transfers because the hospital has the legal duty to accept such transfers. However, if the transfer is not mandated by EMTALA, then the hospital has no legal duty to accept the patient, and the on-call physician can now operate in private practice mode and choose which patients to accept in transfer.
The Federation of American Hospital's (FAH) self-serving answer to the difficulty in accessing specialty care was, and I quote, "Congress should enact federal legislation requiring physicians to provide uncompensated on-call coverage as a condition of receiving Medicare payment," and also enact "legislation which mandates, or creates a strong incentive for, states to impose a requirement that physicians provide on-call services as a condition of their state licensure."22 The FAH wants the government to appropriate and nationalize physician services by forcing them to provide on-call services and uncompensated care. Unfortunately, imposed indentured servitude works only for so long before the service providers up and quit.
The American Hospital Association stated that hospitals should not be required to accept inpatients in transfer because "EMTALA was designed with a significant, and limited, objective to assure that all individuals in need of emergency services have access to care."23
I suggest that statement is precisely why they should be required to accept transfers of patients with EMCs, and all individuals with EMCs includes inpatients as well as ED patients.
1. Moses v. Providence Hosp. and Med Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009), certiorari denied, No. 09-438, 2010 WL 255241 (U.S. June 28, 2010). http://www.supremecourt.gov/orders/courtorders/062810zor.pdf.
2. 42 USC 1395dd(e)(4).
3. Moses v. Providence Hosp. and Med Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009).
4. 67 Fed. Reg. 31506-31507 (May 9, 2002).
5. Bryant v. Adventist Health System, 289 F.3d 1162 (9th Cir. May 20, 2002).
6. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003). According to CMS, once a hospital admits the individual as an inpatient for further treatment, the hospital's obligation under EMTALA ends.
7. 42 CFR 489.24(a)(ii).
8. The 6th Circuit includes Michigan, Ohio, Tennessee, and Kentucky.
9. 42 CFR. § 489.24(d)(2)(i).
10. 42 USC 1395dd(b)(1)(A).
11. E.g., Hussain v. Kaiser Foundation Health Plan, 914 F. Supp. 1331 (E.D.Va. 1996), EMTALA does not "reach into the hospital room of a patient admitted" because such an interpretation would turn the law into a federal malpractice act.
12. See also Bitterman RA. EMTALA ends once patient is "admitted" to the hospital courts agree with CMS. ED Legal Letter 2008;19:121-125; Kamoie BE. EMTALA: Reaching beyond the emergency room to expand hospital liability. J Health Law 2000;33:25-48.
13. US Solicitor General, Department of Justice, Brief for the United States as Amicus Curiae in the case of Providence Hospital v Moses to the US Supreme Court, May 2010.
14. 42 USC 1302(a) and 42 USC 1395hh(a)(1).
15. Roberts v. Galen of Va., Inc., 525 U.S. 249 (1999).
16. CMS Advanced notice of proposed rulemaking; Emergency Medical Treatment and Labor Act (EMTALA): Applicability to hospital and critical access hospital inpatients and hospitals with specialized capabilities. 75 Federal Register (246) 80762-80765 (December 23, 2010). http://edocket.access.gpo.gov/2010/pdf/2010-32267.pdf.
17. 73 Federal Register 48656 (August 19, 2008).
18. See also Bitterman RA. Inpatient transfers and community on-call programs: New rules finalized. ED Legal Letter 2008;19:109-112.
19. For example, see comments submitted by the American Hospital Association (AHA), Association of American Medical Colleges, Alliance of Specialty Medicine, Tennessee Hospital Association, Minnesota Hospital Association, American Society for Healthcare Risk Management (ASHRM), and the American College of Emergency Physicians (ACEP).
20. E.g, Abney v. University Medical Center of S. Nevada, 2010 US Dist. Lexis 35303 (D. of NV. 2010); Romar v. Fresno Comm. Hosp. et al., 2008 U.S. Dist. LEXIS 85080 (E.D.Cal. Oct. 10, 2008); Jackson v. East Bay Hosp., 980 F.Supp. 1341 (N.D. Cal. 1997).
21. 42 USC 1395dd(g).
22. Comments submitted by the Federation of American Hospitals (FAH), February 22, 2011.
23. Comments submitted by the American Hospital Association (AHA), February 15, 2011, (emphasis added).
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