Following the interpretation changes in the regulations in 2004 providing that patients admitted with the intent to remain overnight cease to be EMTALA patients, the issue of whether newborns are protected by EMTALA has been uncertain.

It is now more uncertain...

The US Court of Appeals for the 1st District ruled in the Lopez-Soto case (prior to the "in-patient" change in the rules) ruled that EMTALA does apply to newborns and requires appropriate medical screening, stabilization, and transfer compliance.  The Court relied upon the clear wording of the statute.

A Wisconsin appeals court, however, has recently ruled that a new-born is an inpatient, and therefore EMTALA does not apply.  The court upheld dismissal of a state court suit over an alleged EMTALA violation, saying the CMS interpretation must be followed, even though it occurred subsequently to the events at issue, relying on a federal Nebraska decision on interpretations by regulatory agencies.

The Wisconsin opinion would not control in a federal court action, even in Wisconsin, but is evidence of another series of cases building pressure for a new EMTALA review by the US Supreme Court to resolve conflicting opinions in the various circuits.

Only one EMTALA case has reached the Supreme Court so far, and in that case (Roberts v. Galen) the court ruled that evidence of financial intent is not necessary to show an EMTALA violation.  More important, however, was the Court's decision process that ruled each section of EMTALA must be read independently, and provisions of one do not automatically control other provisions.

In the oral argument before the Justices, the strong indication was that the Justices considered EMTALA to apply to inpatients, and in fact the case upheld a lawsuit brought by a patient who had been allegedly discharged in an unstable condition after weeks of of inpatient care.

The Supreme Court also indicated that CMS interpretations and legislative intent are not to be considered where the language of the law itself is clear and unambiguous.

What will happen?

The presence of new judges on the Supreme Court could make a difference in the overall view of the court.  The new justices are likely to favor a strict reading of the statute but may also favor reining in governmental mandates.  The results are going to be heavily dependent on the facts of the actual cases that come up on appeal.

We need four Supreme Court cases--

It is time that a few really critical issues come up to the Supreme Court to get guidance that the CMS regulations and their case-by-case approach haven't provided.  The recent expiration of the EMTALA TAG (Technical Advisory Group) left most critical issues unanswered.

The cases need to focus on:

1.  Will the Supreme Court accept the "inpatients are not covered by EMTALA" view advanced by CMS?

2.  Are newborns covered by EMTALA requirements for MSE, stabilization, and transfer?

3.  Does the duty to accept transfers apply to inpatients because the statute is separate from the MSE requirements, or
does the "inpatient" interpretation by CMS release them of the obligation to accept admitted patients who need their
higher level of care?

4.  What is the scope of EMTALA when it comes to mental health patients and the dramatic lack of facilities to care
for them?

So, what should you do in the mean time?

My view is that until the Supreme Court says otherwise, it is prudent to follow EMTALA assessment, on-call, and transfer standards for all patients.  Having different procedures for patients based on admission status, what door they came in, or insurance status on issues that can lead to patient harm are difficult to justify whether they are involved in a CMS investigation under EMTALA, Medicare CoP's, or medical malpractice suits.

Tags: EMTALA court decision Wisconsin newborn babies