Finding a way through the hospital door: The role of EMTALA in public health emergencies

Journal of Law, Medicine and Ethics

Volumn 31, Issue 4, 2003, Pages 590-601

  Rosenbaum, Sara ^a   Kamoie, Brian ^a  

^a GEORGE WASHINGTON UNIVERSITY MEDICAL CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BIOLOGICAL WARFARE; CONFERENCE PAPER; EMERGENCY HEALTH SERVICE; HEALTH CARE POLICY; LAW; LEGAL ASPECT; PUBLIC HEALTH; STANDARD; EMERGENCY; GOVERNMENT; HEALTH CARE AND PUBLIC HEALTH; HOSPITAL ADMISSION; HUMAN; LEGAL APPROACH; MASS SCREENING; MEDICARE; REVIEW; TERRORISM; UNITED STATES;

HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

EMERGENCIES; EMERGENCY SERVICE, HOSPITAL; HUMANS; LEGISLATION, HOSPITAL; MASS SCREENING; MEDICARE; PATIENT ADMISSION; PUBLIC HEALTH; TERRORISM; UNITED STATES; UNITED STATES DEPT. OF HEALTH AND HUMAN SERVICES;

EID: 1542505667     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2003.tb00126.x     Document Type: Conference Paper

References (80)

1. R. Rosenblatt, S. Law, and S. Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997): at 63-65.
2. See the recently promulgated EMTALA regulation at 68 Fed. Reg. 53221-53264 (Sept. 9, 2003) at 53223.
3. See id. at 53237; see also Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132 (8th Cir. 1996)(screening examination does not have to be correct or properly done, just uniform); Ingram v. Muskogee Reg. Med. Ctr., 235 F.3d 500, 552 (10th Cir. 2000)(screening requirement is for limited purpose and does impose a duty of reasonable care); and Trivette v. North Carolina Baptist Hospital, 512 S.E.2d 425 (N.C. 1999)(hospital has no duty to stabilize an emergency medical condition not found during the screening examination).
4. See In the Matter of Baby "K", 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 825 (1994). See also S. Rosenbaum, "The Impact of United States Law on Medicine as a Profession," JAMA (289): 1546-1556, at 1548-49.
5. See, e.g., D. Hyman, "Patient Dumping and EMTALA: Past Imperfect/Future Shock, Health Matrix 8 (1998): 29-56; D. Hyman, "Lies, Damned Lies and Narrative," Indiana Law Journal 73 (1998): 797-865; and R. Epstein, "Living Dangerously: A Defense of Mortal Peril, University of Illinois Law Review (1998): 909-954.
6. See, e.g., D. Hyman, "Patient Dumping and EMTALA: Past Imperfect/Future Shock, Health Matrix 8 (1998): 29-56; D. Hyman, "Lies, Damned Lies and Narrative," Indiana Law Journal 73 (1998): 797-865; and R. Epstein, "Living Dangerously: A Defense of Mortal Peril, University of Illinois Law Review (1998): 909-954.
7. See, e.g., D. Hyman, "Patient Dumping and EMTALA: Past Imperfect/Future Shock, Health Matrix 8 (1998): 29-56; D. Hyman, "Lies, Damned Lies and Narrative," Indiana Law Journal 73 (1998): 797-865; and R. Epstein, "Living Dangerously: A Defense of Mortal Peril, University of Illinois Law Review (1998): 909-954.
8. Law and the American Health Care System, supra note 1, at pp. 823-1138.
9. See U.S. General Accounting Office, EMTALA Implementation and Enforcement Issues (June 2001): at 10-13 available at 〈http://www.gao.gov/new.items/ d01747.pdf〉(last visited September 11, 2003)(reporting that the effects of EMTALA on overcrowding and cost of uncompensated care difficult to determine because of other contributing factors); Physician Marketplace Report: The Impact of EMTALA on Physician Practices (Washington, DC: American Medical Association Center for Health Policy Research) (Feb. 2003) at 1-6 (finding that EMTALA-related bad debt amounted to $12,300 per self-employed physician in 2000, or nearly $4.2 billion in the aggregate).
10. See U.S. General Accounting Office, EMTALA Implementation and Enforcement Issues (June 2001): at 10-13 available at 〈http://www.gao.gov/new.items/ d01747.pdf〉(last visited September 11, 2003)(reporting that the effects of EMTALA on overcrowding and cost of uncompensated care difficult to determine because of other contributing factors); Physician Marketplace Report: The Impact of EMTALA on Physician Practices (Washington, DC: American Medical Association Center for Health Policy Research) (Feb. 2003) at 1-6 (finding that EMTALA-related bad debt amounted to $12,300 per self-employed physician in 2000, or nearly $4.2 billion in the aggregate).
11. U.S. Department of Health and Human Services, Health United States 2002 (DHHS Pub. No. 1232) (Tables 117 and 134).
12. Pub. L. No. 99-272,§ 9121, 100 Stat. 164-67 (1986) codified at 42 U.S.C.§ 1395dd (2003). The statute is still sometimes referred to as "COBRA" or the "anti-dumping" law. For additional overview and background see B. Kamoie, "EMTALA: Reaching Beyond the Emergency Room to Expand Hospital Liability." Journal of Health Law 18 (2000): 25-55. For additional details regarding the history of efforts to ensure emergency access, see R. Rosenblatt, S. Law, and S. Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997): at 36-93.
13. Pub. L. No. 99-272,§ 9121, 100 Stat. 164-67 (1986) codified at 42 U.S.C.§ 1395dd (2003). The statute is still sometimes referred to as "COBRA" or the "anti-dumping" law. For additional overview and background see B. Kamoie, "EMTALA: Reaching Beyond the Emergency Room to Expand Hospital Liability." Journal of Health Law 18 (2000): 25-55. For additional details regarding the history of efforts to ensure emergency access, see R. Rosenblatt, S. Law, and S. Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997): at 36-93.
14. Office of the Inspector General, U.S. Department of Health and Human Services, Patient Dumping After COBRA (Aug. 1, 1988).
15. 42 U.S.C.§ 291c(e) (2003).
16. See Corum v. Beth Israel Med. Ctr., 359 F. Supp. 909 (S.D.N.Y. 1973); Newsom v. Vanderbilt Univ., 653 F.2d 1100 (6th Cir. 1981); and R. Rosenblatt, S. Law, and S. Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997): at 64-65.
17. See R. Rosenblatt, S. Law, and S. Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997): at 64-65.
18. See American Hosp. Ass'n v. Schweiker, 721 F.2d 170 (7th Cir. 1983), cert. denied sub nom. American Hosp. Ass'n v. Heckler, 466 U.S. 958 (1984).
19. 42 U.S.C.§ 291c(e). See also the applicable regulations at 42 C.F.R.§ 124.603 (2003).
20. See, e.g., Thompson v. Sun City Comm. Hosp., Inc., 688 P.2d 605 (Ariz. 1984).
21. See, e.g., Campbell v Mincey 413 F. Supp. 16 (N.D. Miss, 1975), aff'd 542 F. 2d 573 (5th Cir., 1976) (concluding neither a common law nor statutory duty of emergency care in Mississippi).
22. See H.R. Rep. No. 99-241 (III), at 5, (1985), reprinted in 1986 U.S.C.C.A.N. 726-27.
23. I b i d.
24. Id. at § 1395dd(a) (2003).
25. I b i d.
26. EMTALA contains a non-preemption provision at 42 U.S.C.§1395dd(f) ("The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.")
27. See H.R. Rep. No. 99-241 (III), at 6-7, (1985), reprinted in 1986 U.S.C.C.A.N. 727-28 (noting that the statute creates only two federal causes of action - one by a patient for the failure to appropriately screen, stabilize, or properly transfer, and one by a hospital that has received an inappropriate transfer). See also Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996).
28. See U.S. Department of Health and Human Services, Medicare Medicaid State Operations Manual, Appendix V, Interpretive Guidelines and Investigative Procedures for Responsibilities of Medicare Participating Hospitals in Emergency Cases (May 1998): at 19.
29. Williams v. Birkeness, 34 F.3d 695, 697 (8th Cir. 1994). See also Baber v. Hosp. Corp. of America, 977 F.2d 872, 879 (4th Cir. 1992) and Power v. Arlington Hosp. Ass'n., 42 F.3d 851, 859 (4th Cir. 1994) (noting that the key question in determining whether a screening examination is appropriate is whether screening procedures are applied uniformly).
30. U.S. Department of Health and Human Services, Medicare Medicaid State Operations Manual, Appendix V, Interpretive Guidelines and Investigative Procedures for Responsibilities of Medicare Participating Hospitals in Emergency Cases (May 1998): at 19.
31. See 68 Fed. Reg. 53234 (Sept. 9, 2003); 42 C.F.R.§ 489.24 (2003).
32. 42 U.S.C.§ 1395dd(e)(1) (2003).
33. I b i d.
34. 42 U.S.C.§ 1395dd(b)(1).
35. 42 U.S.C.§ 1395dd(e)(3)(A) (2003).
36. I b i d.
37. Id. at§ 1395dd(c).
38. Id. at§ 1395(c)(2).
39. I b i d.
40. 42 U.S.C.§ 1395dd(d)(1)
41. U.S. General Accounting Office, EMTALA Implementation and Enforcement Issues (June 2001): at 24, available at 〈http://www.gao.gov/new.items/ d01747.pdf〉 (last visited September 8, 2003).
42. 42 U.S.C.§ 1395dd(d)(3).
43. Id. at§ 1395dd(d)(2)
44. I b i d.
45. I b i d.
46. 42 C.F.R.§ 489.20(m) (2003).
47. See American Hosp. Ass'n v. Schweiker, 721 F.2d 170 (7th Cir. 1983), cert. denied sub nom. American Hosp. Ass'n v. Heckler, 466 U.S. 958 (1984).
48. See G. Annas, "Asking the Courts to Set the Standard of Emergency Care - The Case of Baby K." New Eng. J. Med. 330: 1542-1545 (1994); R. Dzielak, "Physicians Lose the Tug of War to Pull the Plug: The Debate About Continued Futile Medical Care," John Marshall Law Review 28 (1995): 733-767, at 757; and S. Smith, "Note: The Critical Condition of the Emergency Medical Treatment and Active Labor Act: A Proposed Amendment to the Act After In the Matter of Baby K," Vanderbilt Law Review 48 (1995): 1491-1538.
49. See G. Annas, "Asking the Courts to Set the Standard of Emergency Care - The Case of Baby K." New Eng. J. Med. 330: 1542-1545 (1994); R. Dzielak, "Physicians Lose the Tug of War to Pull the Plug: The Debate About Continued Futile Medical Care," John Marshall Law Review 28 (1995): 733-767, at 757; and S. Smith, "Note: The Critical Condition of the Emergency Medical Treatment and Active Labor Act: A Proposed Amendment to the Act After In the Matter of Baby K," Vanderbilt Law Review 48 (1995): 1491-1538.
50. See G. Annas, "Asking the Courts to Set the Standard of Emergency Care - The Case of Baby K." New Eng. J. Med. 330: 1542-1545 (1994); R. Dzielak, "Physicians Lose the Tug of War to Pull the Plug: The Debate About Continued Futile Medical Care," John Marshall Law Review 28 (1995): 733-767, at 757; and S. Smith, "Note: The Critical Condition of the Emergency Medical Treatment and Active Labor Act: A Proposed Amendment to the Act After In the Matter of Baby K," Vanderbilt Law Review 48 (1995): 1491-1538.
51. See U.S. General Accounting Office, EMTALA Implementation and Enforcement Issues (June 2001): at 10-13 available at 〈http://www.gao.gov/new.items/ d01747.pdf〉 (last visited September 11, 2003)(reporting that the effects of EMTALA on overcrowding and cost of uncompensated care difficult to determine because of other contributing factors); cf. Physician Marketplace Report: The Impact of EMTALA on Physician Practices (Washington, DC: American Medical Association Center for Health Policy Research) (Feb. 2003) at 1-6 (finding that EMTALA-related bad debt amounted to $12,300 per self-employed physician in 2000, or nearly $4.2 billion in the aggregate). We searched the literature available through medline and LEXIS and were unable to identify any other studies on the issues of EMTALA's effect on overcrowding and cost.
52. See U.S. General Accounting Office, EMTALA Implementation and Enforcement Issues (June 2001): at 10-13 available at 〈http://www.gao.gov/new.items/ d01747.pdf〉 (last visited September 11, 2003)(reporting that the effects of EMTALA on overcrowding and cost of uncompensated care difficult to determine because of other contributing factors); cf. Physician Marketplace Report: The Impact of EMTALA on Physician Practices (Washington, DC: American Medical Association Center for Health Policy Research) (Feb. 2003) at 1-6 (finding that EMTALA-related bad debt amounted to $12,300 per self-employed physician in 2000, or nearly $4.2 billion in the aggregate). We searched the literature available through medline and LEXIS and were unable to identify any other studies on the issues of EMTALA's effect on overcrowding and cost.
53. See Congressional Budget Office, How Many People Lack Health Insurance and For How Long? Congress of the United States (May 2003), available at 〈http://www.cbo.gov/ftpdoc.cfm?index=4210&type=1〉 (last visited September 24, 2003); J. Rhoades and J. Cohen, Agency for Healthcare Research and Quality, MEPS Statistical Brief #6 - The Uninsured in America, 1996-2001, November 2002, available at 〈http://www.meps.ahrq.gov/papers/st6/stat06. pdf〉 (last visited September 24, 2003); and Families USA and The Robert Wood Johnson Foundation, Going Without Health Insurance: Nearly One in Three Non-Elderly Americans, March 2003, available at 〈http://covertheuninsured week.org/media/GoingWithoutReport.pdf〉 (last visited September 24, 2003).
54. See Congressional Budget Office, How Many People Lack Health Insurance and For How Long? Congress of the United States (May 2003), available at 〈http://www.cbo.gov/ftpdoc.cfm?index=4210&type=1〉 (last visited September 24, 2003); J. Rhoades and J. Cohen, Agency for Healthcare Research and Quality, MEPS Statistical Brief #6 - The Uninsured in America, 1996-2001, November 2002, available at 〈http://www.meps.ahrq.gov/papers/st6/stat06. pdf〉 (last visited September 24, 2003); and Families USA and The Robert Wood Johnson Foundation, Going Without Health Insurance: Nearly One in Three Non-Elderly Americans, March 2003, available at 〈http://covertheuninsured week.org/media/GoingWithoutReport.pdf〉 (last visited September 24, 2003).
55. See Congressional Budget Office, How Many People Lack Health Insurance and For How Long? Congress of the United States (May 2003), available at 〈http://www.cbo.gov/ftpdoc.cfm?index=4210&type=1〉 (last visited September 24, 2003); J. Rhoades and J. Cohen, Agency for Healthcare Research and Quality, MEPS Statistical Brief #6 - The Uninsured in America, 1996-2001, November 2002, available at 〈http://www.meps.ahrq.gov/papers/st6/stat06. pdf〉 (last visited September 24, 2003); and Families USA and The Robert Wood Johnson Foundation, Going Without Health Insurance: Nearly One in Three Non-Elderly Americans, March 2003, available at 〈http://covertheuninsured week.org/media/GoingWithoutReport.pdf〉 (last visited September 24, 2003).
56. E.R. Brown, R. Wyn, and S. Teleki, Disparities in Health Insurance and Access to Care for Residents Across U.S. Cities, The Commonwealth Fund and UCLA Center for Health Policy Research (August 2000), available at 〈http://www.cmwf.org/programs/insurance/Brown85MSAsreport.pdf〉 (last visited September 24, 2003). The report notes that that urban areas with high rates of uninsurance among individuals aged 0-64 include El Paso, Texas (37%), Jersey City, New Jersey (36%); Los Angeles, California (31%), Houston, Texas (30%), and New York, NY (27%).
57. See 68 Fed. Reg. 53221-53264 (Sept. 9, 2003).
58. Letter from Steven A. Pelovitz, Director of Survey and Certification Group, CMS, to Regional Administrators of State Survey Agencies (Nov. 8, 2001), available at 〈http://www.cms.hhs.gov/medicaid/survey-cert/110801. asp〉(last visited September 8, 2003).
59. See id. ("As a result of the current Anthrax problem, hospitals are seeking clarification regarding their EMTALA obligations when staff encounter situations related to the actual or potential exposure of a biological agent.")
60. I b i d.
61. James Bentley, American Hospital Association, remarks to the Second National Symposium on Medical & Public Health Response to Bioterrorism, Nov. 28, 2000 (Washington, DC), presentation available at 〈http://www.hopkins- biodefense.org/sympcast/〉 (last visited September 9, 2003).
62. U.S. General Accounting Office, Hospital Preparedness: Most Urban Hospitals Have Emergency Plans but Lack Certain Capacities for Bioterrorism Response (Aug. 2003): at 2-3, available at 〈http://www.gao.gov/new.items/ d03924.pdf〉 (accessed on September 9, 2003).
63. American Health Line, "JCAHO to Begin Consideration of Bioterrorism Preparedness" (Nov. 16, 2001).
64. I b i d.
65. U.S. General Accounting Office, Bioterrorism: Preparedness Varied Across State and Local Jurisdictions (April, 2003), available at 〈http://www.gao. gov/new.items/d03373.pdf〉 (last visited September 9, 2003).
66. I b i d.
67. I b i d.
68. I b i d.
69. I b i d.
70. See 5 U.S.C.§ 553 (2003); While interpretive rules and statements of general policy may be issued without going through formal notice-and-comment rulemaking procedures, 5 U.S.C.§ 553(b)(A), such exceptions are to be "narrowly construed and only reluctantly countenanced." See Philadelphia Citizens in Action v. Schweiker, 669 .2d 877, 881 (3rd Cir. 1982). The line between interpretive and substantive rules is not always clear. Interpretive rules are "those which merely clarify or explain existing law or regulations." Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983). Subtantive rules, however, "are those which effect a change in existing law or policy." Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983). The CMS letter appears to be a substantive rule that changes EMTALA requirements based on the existence of a community-wide plan (something not contemplated by the statute, regulations or case law prior to the CMS letter). Substantive rules that change policy must adhere to the APA's formal notice-and-comment rulemaking procedures. See S. Cal. Aeria Advertisers' Ass'n v. FAA, 881 F.2d 672 (9th Cir. 1989).
71. Pub. L. No. 107-188, 116 Stat. 627 (2002) (codified in scattered sections of the U.S. Code).
72. See CMS website at 〈http://www.cms.hhs.gov/medicaid/survey-cert/ 110801.asp〉 (accessed on September 11, 2003)
73. Id. at 143.
74. 68 Fed. Reg. 53234 (Sept. 9, 2003).
75. Id. at 53236.
76. Id. at 53234.
77. Id. at 53237.
78. I b i d.
79. Id. at 53257.
80. S. Rosenbaum and B. Kamoie, "Managed Care and Public Health: Conflict and Collaboration," Journal of Law, Medicine & Ethics 30, no. 2 (2002): 191-200.