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CMS soliciting comments on the EMTALA’s applicability to inpatients
January 10, 2011
Health Law Alert
Author(s): Carly B. Eisenberg, Lindsay Maleson, Regina S. Rockefeller
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On December 23, 2010, the Centers for Medicare & Medicaid Services (“CMS”) issued an advanced notice of proposed rulemaking to solicit public comments on two CMS policies pertaining to the applicability of the Emergency Medical Treatment and Labor Act (“EMTALA”) to hospital inpatients. 

Under EMTALA, if an individual “comes to the emergency department” of a Medicare-participating hospital and requests examination or treatment, the hospital must provide an appropriate medical screening examination within the capability of the emergency department to determine, with reasonable clinical confidence, whether an emergency medical condition exists. If one does exist, the hospital must provide any necessary stabilizing treatment or appropriately transfer the individual to another medical facility where stabilization can occur. Further, under EMTALA, hospitals with specialized capabilities or facilities are prohibited from refusing an appropriate transfer if the hospital has the ability to treat the individual.  

In response to significant judicial division regarding the application of EMTALA to inpatients, CMS is seeking commentary on two of its EMTALA policies. In the first, issued in a September 9, 2003, final rule, CMS determined that EMTALA-imposed obligations terminate when an individual’s emergency medical condition is stabilized or when the hospital admits the individual as an inpatient. In short, this 2003 policy held that, in most circumstances, EMTALA does not apply to inpatients. If a hospital admits a patient for the purpose of circumventing its EMTALA obligation, the hospital can be held liable under EMTALA and be subject to enforcement action. 

In the second policy, issued in an August 9, 2008, IPPS final rule, CMS concluded that a hospital with specialized capabilities, such as a burn unit, is not obligated under EMTALA to accept patients appropriately transferred from the first hospital, where such patients were admitted in good faith as inpatients at the first hospital. 

CMS is requesting comments regarding its “need to revisit the policies” outlined in the 2003 and 2008 rules. Comments must be received no later than February 22, 2011.  Many hospitals are expected to urge CMS to confirm that EMTALA obligations end upon inpatient admission. Once a patient is admitted as an inpatient, the Medicare Conditions of Participation protect the patient and do not permit a hospital inappropriately to discharge or transfer patients to another facility. 

This alert was co-authored by Carly Eisenberg.


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