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A tightly held regulation clarifying important portions of the Emergency Medical Treatment and Active Labor Act (EMTALA) was expected to be published in the Federal Register last month, but was pulled at the last minute. The proposed rule already had cleared the Office of Management and Budget but fell victim to the Bush administration’s 60-day freeze on all new regulations.
"There are differing opinions on how EMTALA applies, and the rule was intended to provide greater consistency," reports Ellen Griffith, a spokeswoman with the Health Care Financing Administration (HCFA). That leaves the complex proposed regulation in the hands of the White House for the time being, she says.
Steve Lipton, a health care attorney with Davis Wright in Seattle who specializes in this area, says there is no shortage of interpretations when it comes to EMTALA. "It is not uncommon to see the OIG [Office of Inspector General] take a position on EMTALA that seems to be at odds with HCFA."
The courts also have interpretations that are at odds with HCFA and the OIG, and on top of that, the courts often disagree among themselves, adds Lipton. For example, he notes that the First and the Sixth circuits have held that EMTALA applies to inpatient, while the Fourth and the Ninth have generally held that EMTALA does not apply to inpatient.
On top of all that, it is not uncommon to see differences of interpretation between the regional offices of HCFA or those offices and the courts. One recent EMTALA decision handed down by the Ninth Circuit Jan. 23 is a case in point. In that case, Arrington vs. Wong, an ambulance was en route to a hospital when the emergency physician told the ambulance to take the patient to another hospital. The patient died before the ambulance reached the hospital.
The patient’s family sued under EMTALA, and the circuit court overturned a lower court ruling in favor of the plaintiffs. The court argued that it was following the Department of Health and Human Services’ regulation that a hospital may divert an ambulance that has contacted its emergency room and is on its way to that hospital only if the hospital is in diversionary status.
"That is a bit of a stretch under EMTALA," asserts Lipton. He says the regulations make it quite clear that EMTALA does not apply unless the patient is on hospital property or in a hospital-owned ambulance. Health care attorney Lowell Brown of Foley & Lardner in Los Angeles goes even further. "This decision is out there in left field," he asserts.
Moreover, Brown reports that a representative from HCFA’s Region IX office already has indicated that HCFA does not plan to follow the ruling. "For whatever reason, HCFA historically has ignored court decisions involving private plaintiff cases."
While that discounts the importance of the decision in terms of administrative sanction, it does nothing to diminish its importance from possible patient action against hospitals in that region. "It is still the law of the Ninth Circuit, which covers almost all the western states as well as Alaska and Hawaii," Lipton asserts.
According to Brown, most of the EMTALA case law now matters where private plaintiffs sue a hospital in federal court. "It is almost like a brand-new personal injury cause of action that the law has created," he explains. "Plaintiff lawyers are increasingly discovering it."
"It is a very strange situation," Brown asserts. "Even though HCFA is not going to go after hospitals, private plaintiffs can." That leaves hospitals without any clear guidance, he says.
An upcoming issue of Compliance Hotline will offer advice on how to comply with EMTALA’s growing threat under HCFA’s hospital outpatient prospective payment regulation