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COVERAGE AND PAYMENT FOR EMERGENCY MEDICAL SERVICES: THE HOSPITAL PERSPECTIVE Salvatore G. Rotella, Jr. Reed Smith LLP Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia,
COVERAGE AND PAYMENT FOR EMERGENCY MEDICAL SERVICES: THE HOSPITAL PERSPECTIVE Salvatore G. Rotella, Jr. Reed Smith LLP Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA (215) (phone) (215) (fax) John E. Wyand Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA (215) (phone) (215) (fax) HOSPITALS LEGAL OBLIGATION TO PROVIDE EMERGENCY SERVICES I. LAWS OBLIGATING HOSPITALS TO PROVIDE EMERGENCY SERVICES A. Federal 1. The Emergency Medical Treatment and Active Labor Act ( EMTALA ) a) Passed by Congress in 1985 to stop patient dumping i.e., the refusal by hospitals to treat uninsured patients with emergency medical conditions. See Section 1867 of the Social Security Act ( Examination and Treatment for Emergency Medical Conditions and Women in Labor ), codified at 42 U.S.C. 1395dd. b) As a condition of Medicare participation, hospitals with dedicated emergency departments must provide emergency medical services without delay to any and all patients who present with an emergency medical condition, and inquire about or seek payment only after the patient has been stabilized. c) Courts have consistently re-affirmed that EMTALA is not a federal malpractice statute. d) The Centers for Medicare & Medicaid Services ( CMS ) has promulgated an extensive implementing regulation for the statute. See 42 C.F.R ( Special responsibilities of Medicare hospitals in emergency cases ). 1 e) Under the implementing rules, hospitals with specialized capabilities, even if they lack dedicated emergency departments, must provide services to individuals with unstabilized emergency medical conditions who are transferred from other hospitals that lack the capability to provide the services required. 42 C.F.R (f). 2. IRS Revenue Ruling indicates that a nonprofit hospital with an emergency department must treat patients who require emergency medical services without regard to payment source as a condition of maintaining the hospital s status as a nonprofit corporation under 501(c)(3) of the Internal Revenue Code. B. State (Pennsylvania as example) 1. Condition of Medicaid participation a) In Pennsylvania, hospitals must participate in Medicare as a precondition to participating in Medicaid b) Participation in Medicare requires compliance with EMTALA 2. Managed care laws If an enrollee of a managed care plan seeks emergency services and the emergency health care provider determines that emergency services are necessary, the emergency health care provider shall initiate necessary intervention to evaluate and, if necessary, stabilize the condition of the enrollee without seeking or receiving authorization from the managed care plan. 40 P.S Health and safety regulations Hospitals that provide a broad range of services must provide effective care for any type of patient requiring emergency services. 28 Pa. Code (1). 4. Essential life-saving services Even hospitals that provide the most limited range of services, and that may therefore elect to refer emergency patients to other facilities, must institute essential life-saving measures and provide emergency procedures that will minimize aggravation of the condition of the patient during transportation when referral is indicated. 28 Pa. Code 117.1(a) & (2)-(3). II. EMTALA BASICS: SCREENING AND STABILIZATION A. Screening Requirement: If any individual comes to the emergency department of a hospital and a request is made on the individual s behalf for examination or treatment, the hospital must provide for an appropriate medical screening examination within the capability of the department, including any ancillary services routinely available to it, to determine whether or not an emergency medical condition exists. 42 U.S.C. 1395dd(a). 2 1. CMS defines comes to the emergency department (at 42 C.F.R (b)) to include when an individual: a) Presents to the hospital s emergency department or (with some exceptions) elsewhere on the main hospital campus; b) Is in a hospital-owned ground or air ambulance for transport to the ED; or c) Is in a non-hospital-owned ground or air ambulance for transport to the ED that is on the hospital s grounds. 2. CMS has further determined that an individual in a nonhospital-owned ambulance off of hospital property is not considered to have come to the hospital s emergency department, even if a member of the ambulance staff contacts the hospital... and informs the hospital that they want to transport the individual to the hospital for examination and treatment. 42 C.F.R (b)(4). In that circumstance, the hospital may direct the ambulance to another facility if it is in diversionary status, that is, it does not have the staff or facilities to accept any additional emergency patients. Id. 3. The statute defines an emergency medical condition as: (A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment of bodily functions, or (iii) serious dysfunction of any bodily organ or part; or (B) with respect to a pregnant woman who is having contractions (i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or (ii) that transfer may pose a threat to the health or safety of the woman or the unborn child. 42 U.S.C. 1395dd(e)(1). 4. CMS regulations provide that the statute no longer applies after an individual has been admitted to the hospital as an inpatient. See 42 C.F.R (d)(2) (If a hospital admits an individual it found to have an emergency medical condition in good faith in order to stabilize the 3 emergency medical condition, the hospital has satisfied its special responsibilities under this section with regard to that individual ); B. Stabilization Requirement: Only if the hospital determines that the individual does have an emergency medical condition, it must given the staff and facilities it has available, including on-call physicians provide such further examination and treatment as required to stabilize the emergency medical condition or arrange for a transfer to another facility in accordance with the statute. 42 U.S.C. 1395dd(b)(1). 1. To stabilize the emergency medical condition does not necessarily mean to resolve the condition, but rather only to the provide the necessary medical treatment to assure within reasonable medical probability, that no material deterioration of the condition is likely to occur during the transfer of the patient to another facility or the discharge of the patient. 42 U.S.C. 1395dd(e)(3)(A) & (4) (emphasis added). 2. Under 42 U.S.C. 1395dd(c)(1), a hospital may not transfer an individual with an unstabilized emergency medical condition unless: a) The individual requests a transfer in writing; or b) A physician certifies in writing that the medical benefits reasonably expected from the transfer outweigh the risks involved; or c) If a physician is not physically present, a qualified non-physician medical person makes the same written certification in (b) above in consultation with a physician. 3. CMS rules state that a hospital that participates in Medicare and has specialized capabilities or facilities may not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities, provided it has the capacity to treat the individual. 42 C.F.R (f). C. On-Call Requirements: With respect to on-call physicians, CMS rules provide that: 1. A hospital with an emergency department must maintain a list of on-call physicians to provide treatment necessary to stabilize individuals with emergency medical conditions at the hospital, 42 C.F.R (r)(2), and that list must identify the on-call physicians by name. See State Operations Manual CMS Pub ), Appendix V, Interpretive Guidelines, (r)(2). 2. A hospital may permit physicians who are on-call (i.e., available to provide stabilizing services to individuals as necessary under EMTALA) also to schedule elective surgery during the on-call time and to have 4 simultaneous on-call duties. 42 C.F.R (j). See 68 Fed. Reg (September 9, 2003). 3. The failure or refusal of an on-call physician to appear in a reasonable period of time to provide stabilizing treatment requested by an examining physician subjects both the on-call physician and the hospital to EMTALA liability under 42 U.S.C. 1395dd(d)(1)(C). D. Elements of Proof in EMTALA Actions: To establish a violation of EMTALA, plaintiff must show that: (i) hospital is a participating hospital, covered by EMTALA, that operates an emergency department; (ii) an individual came to the emergency department and a request was made on the individual s behalf for examination or treatment for a medical condition; (iii) there was a failure to screen and/or to stabilize the individual within the meaning of the statute. 1. To prove a failure to screen claim, plaintiff must show that the hospital failed to afford him or her a screening reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients, which the hospital uniformly provides to all those who present with substantially similar complaints. Correa v. Hospital of San Francisco, 69 F.3d 1184, (1 st Cir. 1995), cert. denied, 517 U.S (1996); del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15, 19 (1 st Cir. 2002). a) Substantive element: screening must be reasonably calculated to uncover existence of EMC. Does not impose a standard of care, although extreme conduct (if screening is so delayed or so paltry as to amount to no screening at all ) can violate EMTALA. See, e.g., Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, (E.D. Pa. 2010) (denying motion to dismiss screening violation claim pursuant to which plaintiff alleged that hospital took excessive time to assess his complaint of chest pains). b) Procedural element: Same level of screening must be uniformly provided to all individuals with substantially similar complaints. Disparate treatment can be demonstrated by showing that hospital did not follow its own screening procedures. See, e.g., Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 797 (10 th Cir. 2001) (hospitals held to screening standards they create). 2. To prove a failure to stabilize, the plaintiff must show that he or she (1) had an emergency medical condition; (2) the hospital actually knew of that condition; [and] the patient was not stabilized before being transferred. Toretti v. Main Line Hospitals, Inc., 580 F.3d 168, 178 (3 rd Cir. 2009) (quoting Baber v. Hosp. Corp. of Am., 977 F.2d 872, 883 (4 th Cir. 1992)). 3. Civil enforcement of EMTALA by individuals 5 a) Action must be brought within two years of violation. 42 U.S.C. 1395dd(d)(2)(C). b) No cause of action by an individual against ED physicians, only against participating hospital. 42 U.S.C. 1395dd(d)(2)(A). c) Damages available for personal harm in the amount available for personal injury under the law of the State in which the hospital is located. 42 U.S.C. 1395dd(d)(2)(A). ISSUES AND RECENT CASES IN EMTALA LAW III. APPLICATION OF EMTALA TO INPATIENTS A. Prior to 2003: Federal courts reached different conclusions as to whether EMTALA applied to unstable inpatients. For example: 1. Thorton v. Southwest Detroit Hospital, 895 F.2d 1131, 1134 (6 th Cir. 1990) (applying EMTALA to inpatients). 2. Bryan v. Rectors and Visitors of the Univ. of Va., 95 F.3d 349 (4 th Cir. 1996) (finding that EMTALA did not apply to inpatients); Harry v. Marchant, 291 F.3d 767 (11 th Cir. 2002) (same). 3. Courts recognize narrow bad faith exception to rule that stabilization requirement is met once hospital admits patient as inpatient. See, e.g., Bryant v. Adventist Health System/West, 289 F.3d 1162 (9 th Cir. 2002) (Hospital cannot escape liability under EMTALA by admitting unstable patient with no real intention of providing treatment, and then discharging or transferring the patient without having met the stabilization requirement. Burden is on patient to prove that admission was not in good faith) B. September 2003: CMS issues final rule to the effect that treating hospital s obligation under EMTALA to a patient with an EMC ends either when the individual s EMC is stabilized or when the hospital, in good faith, admits the individual as an inpatient. 42 C.F.R (d)(2). C. After September 2003: Some courts still applying EMTALA to inpatients, despite CMS regulation. See Lima-Rivera v. UHS of Puerto Rico Inc., (D.P.R. No , 2007) (rejecting a claim that EMTALA does not apply to inpatients). D. August 2008: CMS takes position that all EMTALA obligations end upon patient s admission as inpatient 1. In August 2008, CMS amended 42 C.F.R (f) to state that a specialized care hospital also has no obligation under EMTALA to accept an appropriate transfer of an inpatient at another hospital whose emergency medical condition is still unstable and who requires the 6 services of the specialized care hospital to stabilize the condition. 73 Fed. Reg , (August 19, 2008). 2. Thus, CMS took the position that EMTALA obligations now definitively end at admission for both the admitting hospital and any specialized care hospital to which the admitting hospital might seek to transfer the patient, even if the inpatient s condition has not been stabilized. 3. The specialized capabilities hospital rule guidance exemplified the benefits of notice and comment rulemaking. a) Based on the recommendations of the EMTALA Technical Advisory Group, CMS initially had proposed that the specialized care hospital would have had a continuing obligation under the statute to accept transfer of an inpatient who required the specialty care to stabilize his or her continuing unstabilized emergency medical condition. b) Public comments in response to the proposed rule raised numerous concerns. These included, most prominently, that tertiary care, urban safety net, and teaching hospitals that already provide care to indigent and uninsured patients would become even further overburdened. Id. at E. April 2009: Sixth Circuit refuses to follow CMS regulation on EMTALA and inpatients 1. Moses v. Providence Hospital, 561 F.3d 573 (6 th Cir. 2009), cert. denied, 130 S. Ct (2010) (Supreme Court denied certiorari in June 2010, after inviting Solicitor General to file an amicus brief in January 2010). a) Facts: Plaintiff took husband to emergency room because he had physical and psychological symptoms, and had threatened her. Husband admitted to hospital and physicians planned to transfer him to psychiatric unit, but did not do so. Discharged after six days with diagnosis of atypical psychosis with delusional disorder, husband killed plaintiff 10 days later. b) Procedure: Plaintiff s estate brought EMTALA and negligence claims. Trial court granted Hospital summary judgment on EMTALA claim on the ground that plaintiff lacked standing to bring it once hospital admitted husband. c) Holding: Reversed. Plaintiff had standing and hospital s obligation to stabilize husband s emergency medical condition did not end upon his admission to the hospital as an inpatient. d) Analysis: Court found that hospital had obligation under statute to provide treatment (on inpatient or outpatient basis) such that no 7 material deterioration of condition was likely to result from or occur during patient s release from hospital. Court declined to follow, as contrary to EMTALA s plain language, the CMS rule that says that obligation ends upon admission. Noted also that CMS issued September 2003 rule after plaintiff s husband was discharged from the hospital, and the court would not in any event apply the rule retroactively in this case. Court found issues of fact as to whether husband had emergency medical condition when he presented to the hospital and whether condition remained unstable upon his discharge. 2. Sixth Circuit also diverges from other circuits by requiring that to establish a violation of EMTALA s screening requirement, patient must show that hospital acted with improper motive in not applying screening procedures uniformly (e.g., hospital screened patient differently because he or she was not insured). See Burd v. Lebanon HMA, Inc., No. 3:09-cv- 0262, 2010 U.S. Dist. LEXIS , at *11-*23 (M.D. Tenn. Nov. 23, 2010) (criticizing but necessarily following the Sixth Circuit s unique improper motive requirement, and granting defendant s motion for summary judgment based on plaintiff s failure to provide evidence of such motive). F. December 2010: CMS issues advanced notice of proposed rulemaking ( ANPRM ) soliciting comments on need to revisit the September 2003 and August 2008 final rules i.e., the applicability of EMTALA to inpatients and the responsibilities of hospitals with specialized capabilities. 75 Fed. Reg (December 23, 2010). 1. Notice acknowledges range of opinions even at the Circuit Court level on the topic of EMTALA s application to inpatients. 2. Notice specifically requests information regarding any situations in which patient with unstabilized EMC was admitted as inpatient, transfer was attempted to hospital with specialized capabilities needed to stabilize the EMC, and hospital with specialized capabilities refused to accept the transfer because it was not obligated to do so under current CMS rules. G. February 2012: CMS issues request for comments on the applicability of EMTALA to hospital inpatients and hospitals with specialized capabilities. 77 Fed. Reg (February. 2, 2012). Sets forth the CMS position in light of the comments received in response to the ANPRM. 1. CMS is not proposing to change the EMTALA obligations for hospitals admitting an individual through their dedicated emergency departments. That is, if an individual comes to the [hospital s] emergency department, as defined in regulation, and the hospital provides an appropriate medical screening examination and determines that an EMC exists, and then admits the individual in good faith in order to stabilize the 8 EMC, that hospital has satisfied its EMTALA obligation towards that patient. 2. CMS is not proposing to change current regulations for hospitals with specialized capabilities. That is, if an individual comes to the hospital s dedicated emergency department, is determined to have an EMC, is admitted as an inpatient, and continues to have an unstabilized EMC which requires the specialized capabilities of another hospital, the EMTALA obligation for the admitting hospital has ended and a hospital with specialized capabilities also does not have an EMTALA obligation towards that individual. IV. ON-CALL ARRANGEMENTS A. In 2008, CMS amended 42 C.F.R (j)(2)(iii) to permit hospitals to participate in formal community call plans to meet their obligation to have on-call physicians available to provide stabilizing services required by EMTALA. 73 Fed. Reg , (August 19, 2008). 1. The rule makes clear that the hospital itself would still be required to perform medical screening examinations and to conduct appropriate transfers. 42 C.F.R (j)(2)(iii). 2. With regard to specialty care necessary to stabilize emergency medical conditions, however, a hospital may participate in a joint plan with other facilities that permits a specific hospital in a region to be designated as the on-call facility for a specific time period, or for a specific service, or both. 73 Fed. Reg. at Necessary elements of such a formal plan include: a) a clear delineation of on-call coverage responsibilities; b) a description of the specific geographic area to which the plan applies; c) a signature by an appropriate representative of each hospital participating in the plan; d) assurances that any local and regional EMS system protocol formally includes information on community call arrangements; e) a statement specifying that all the hospitals retain the obli
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