On February 2, 2012, CMS published a notice  of its policies and request for comments related to two issues regarding the applicability of the Emergency Medical Treatment and Labor Act (“EMTALA”) to hospital inpatients.  The first issue involves whether a hospital’s EMTALA obligations continue to exist even after the patient is admitted to the hospital as an inpatient, but is not stabilized upon or after such admission.  The second issue involves whether EMTALA should apply to situations where a hospital seeks to transfer an individual admitted as a hospital inpatient to a hospital with specialized capabilities because the admitted inpatient continues to have an unstabilized emergency medical condition (“EMC”) that requires specialized treatment not available at the admitting hospital.

CMS considered changes to its current policies in response to its advance notice of proposed rulemaking published in the Federal Register on December 23, 2010 which solicited comments regarding whether it should revisit policies established in 2003 and 2009 providing that a hospital’s EMTALA obligations end upon the good faith admission as an inpatient of an individual with an EMC (the “2010 ANPRM”).  After reviewing comments received in response to the 2010 ANPRM, CMS has decided not to make any changes to the policies or regulations at this time.  As such, the current CMS policies pertaining to the two issues remain as follows:

1.         If an individual comes to the hospital’s emergency department, 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 EMC, the hospital has satisfied its EMTALA obligations towards that patient.

2.         If an individual comes to the hospital’s 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.  Furthermore, a hospital with specialized capabilities does not have an EMTALA obligation towards that individual.

Although CMS is not changing its current policies at this time, it is soliciting comments on the second issue regarding the applicability of EMTALA to a hospital with specialized capabilities in order to determine whether it may be appropriate to reconsider the issue in the future.

If you have questions about the CMS notice or ETMALA, please contact Lee Kuo.