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Medlaw.com E-Bulletin 7/17/2005
Stephen A. Frew JD, Publisher
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1. CMS Directive on EMTALA in L&D
2. Fall speaking schedule
3. Book release information

1 -- CMS DIRECTIVE ON EMTALA IN L&D

My email about the recent Wisconsin decision that applied EMTALA
MSE requirements to a newborn in the L&D area met with some
disdainful comments from some folks who thought I was wrong
about the implications. That's normal.

The surprise, however, is that one of my subscribers forwarded an
email from their counsel who correctly pointed out that CMS had
ruled on this question just two months ago (...and yes, I missed
it. )

CMS Advisory S&C-05-26 was issued April 22, 2005 to deal with
the interaction between The Born-Alive Infants Protection Act of
2002 and EMTALA. The advisory was prompted because

"It has recently come to the agency's attention that there may
be occasions where, in hospitals, an infant may be born alive
within the meaning of the definition added to the US Code by
the Born-Alive Infancts Protection Act, but where hospitals
have failed to comply with the requirements of EMTALA."

DEFINITION:

Chapter 1 of title 1, United States Code, is
amended by adding at the end the following:

``Sec. 8. `Person', `human being', `child', and `individual' as
including born-alive infant

``(a) In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
words `person', `human being', `child', and `individual', shall
include every infant member of the species homo sapiens who
is born alive at any stage of development.
``(b) As used in this section, the term `born alive', with respect
to a member of the species homo sapiens, means the complete
expulsion or extraction from his or her mother of that member,
at any stage of development, who after such expulsion or extraction
breathes or has a beating heart, pulsation of the umbilical cord,
or definite movement of voluntary muscles, regardless of w
hether the umbilical cord has been cut, and regardless of
whether the expulsion or extraction occurs as a result of
natural or induced labor, cesarean section, or induced
abortion.
``(c) Nothing in this section shall be construed to affirm,
deny, expand, or contract any legal status or legal right applicable
to any member of the species homo sapiens at any point prior to
being `born alive' as defined in this section.''.

EMTALA APPLICABILITY:

CMS uses examples of a child born in a L&D or is born on the hospital

campus outside the L&D as examples of EMTALA applicability. It also
notes that a child who is admitted to the hospital would not be
covered by EMTALA under the current CMS view, but would
definitely be covered by the CoP's.

INSTRUCTIONS TO INVESTIGATORS:

"EMTALA is a complaint-driven statute. If you receive a complaint
that suggests that a born-alive infant has been denied a screening
examination, stabilizing treatment, or an appropriate transfer, you
should treat the complaint as potentially triggering an EMTALA
investigation of the hospital. Note that it is not necessary to
determine that the hospital acted with an improper motive in
any failure to provided a screening examination, stabilizing t
reatment, or an appropriate t ransfer in order to conclude that
an EMTALA violation has occurred. The Supreme Court of the
United States has held that a finding of improper motive is not
required to conclude that an EMTALA violation has occurred."

2-- FALL SPEAKING SCHEDULE

I currently have 7 fall speaking dates available -- primarily in
October -- December. If you are interested in booking a program
this would be the best opportunity to obtain a 2005 date. Please
email me at emtala@medlaw.com {mailto:emtala@medlaw.com}

3 -- We have received confirmation that we should have the
new EMTALA Field Guide copies in our warehouse by 8/1. We
will put out a general announcement when they become
available for online order. Discount pricing will be available
for orders of 24, 60, and 150 or more.

Best wishes,

Stephen A. Frew JD
Publisher