What I had to say to the feds about the proposed EMTALA Regulatons on the duty to accept transfers:

Thank you for your consideration of my comments on the proposed EMTALA regulations CMS-1390-P.

Specifically, I would like to comment on the issue of the duty to accept patients in transfer. My view is that your proposal to require hospitals to accept transfers where the patient has been admitted at the original hospital but has not been stabilized is necessary, but does not go far enough to protect patients or comply with the law.

As you are aware, the statute itself provides:

"

(g) Nondiscrimination

A participating hospital that has specialized capabilities or facilities (such as

burn units, shock-trauma units, neonatal intensive care units, or (with respect to

rural areas) regional referral centers as identified by the Secretary in regulation)

shall not refuse to accept an appropriate transfer of an individual who requires such

specialized capabilities or facilities if the hospital has the capacity to treat the individual."

According to the Supreme Court in its Roberts decision, this language must be interpretted

on the clear language of the Act, and provisions of other sections cannot be engrafted upon it.

Following the law and the interpretation standard provided by the Court, it is clear that no limitations are present or implied on "where" the patient is physically located, "what" the patient's status is on the books of the hospital, or any other condition other than the criteria for transfer found in the law itself.

The fact that a patient was admitted or not is singularly irrelevant to whether the patient has the

defined emergency medical condition or the initial hospital has the capability to provide the required care to the patient which are the only operative criteria to whether the transfer is justified under EMTALA. Obviously, the sending facility must still comply with the various other elements of EMTALA, but a capable receiving facility with capacity would be banned from refusing the patient under the statute regardless of admission status or location.

There are undoubtedly those who would argue that the intent of the law was not to apply to in-patients and that once in a hospital, the natural referral patterns and general CoP’s are sufficient. Those positions are patently inaccurate.

As a result of CMS’s well-intentioned, but ill-advised adoption of the concept that EMTALA obligations for the original hospital cease when the patient is admitted, receiving hospitals across the country have taken the exact position that I warned CMS would be the case. They declared that when the original hospital admitted the patient, all EMTALA duties were terminated for the receiving hospital. Accordingly, they ceased accepting patients in transfer except upon the most demanding occasions.

My smaller hospital clients throughout the country have reported that problems with obtaining transfer acceptances went from difficult to extreme when CMS made the regulatory language change regarding admission.

I personally have observed many instances where patients have died as a result of larger hospitals denying transfers because of the patient’s admission status, finances, and other inappropriate grounds under EMTALA. The system does not adequately protect patients in the absence of an EMTALA duty requiring acceptance of transfers, and the CoP’s have not been effectively utilized to create any meaningful alternative to EMTALA enforcement.

Until this proposed set of regulations, there was a general question in the healthcare community whether CMS was still interested or willing to enforce EMTALA. Indeed, in blatant and repeated violations with repeated deaths, CMS has ignored complaints. Any failure of CMS to pursue the proposed regulation and to extend it to all patients meeting the EMTALA transfer standards will be largely viewed as a retreat from EMTALA that will have profoundly negative impact on patient care in this country.

Do not be deluded by allegations that EMTALA was not meant to cover in-patients. This duty to accept was put in place to combat what was referred to as "Reverse Dumping". It was a Congressional recognition that patients needing transfer were being denied access to higher levels of care. It makes no difference whether the patient is brought to the ED with a stroke or heart attack or whether the stroke or heart attack is diagnosed after admission – if the first hospital lacks necessary care capability, they are obligated to arrange a transfer. Allowing receiving hospitals to discriminate against the heart attack in a unit bed but not against the same patient in an ED bay is illogical, discriminatory, and a travesty to suggest it is the legal intent.

I urge the Secretary to go forward with the proposed regulatory changes as currently proposed and to add clarifying language to establish that CMS recognizes no provisions in paragraph G anti-discrimination provisions that would allow a receiving hospital to deny any patient on the basis of their admission status or physical location at the sending facility.