My Opinion: Admission For Less Than “Two Midnights” Does Not Terminate EMTALA Liability

The controversial CMS rule that terminates EMTALA if the patient is “Admitted” is a source of major contrary holdings by US federal courts. The plain language of the EMTALA law does not jibe with the CMS regulation, and a slight majority of federal courts have ruled that CMS lacked the authority to issue regulations that contradict the language of the law. Other courts have applied the CMS regulations as valid.

Only a Supreme Court decision is likely to settle the argument, but in the mean time, CMS is following its own regulations in deciding whether an enforcement case falls under EMTALA or the general provisions of the Medicare Conditions of Participation. That regulation uses the Medicare definition of “admission” which at the time the EMTALA rule was enacted required admission with the intent or reasonable expectation that the patient would remain hospitalized at least overnight — or one “midnight.” Shorter admissions or admissions to avoid EMTALA requirements would not terminate EMTALA.

IPPS Change 2013

The “Admission” definition was changed by CMS in 2013 by stretching the time criteria required for a “medically necessary” admission from “one midnight” to “two midnights”. The CMS presumption is that patients admitted for less than “two midnights” should have been handled as out-patients, and therefore they will not pay for short-term admissions under Medicare Part A. The consequence of that definition change carries over by reference to the EMTALA regulation, stretching the length of admission necessary to terminate EMTALA to one where the patient is reasonably likely to remain hospitalized for “two midnights”.

The implication of this change is that where the intent or reasonable expectation is to transfer or discharge the patient within “two midnights”, EMTALA will apply both for CMS compliance and EMTALA / medical malpractice liability, thus making it much more difficult for hospitals to rely on the CMS rule to avoid complaints or claims made for failure to adequately assess, stabilize, or provide on-call specialty care during a short term admission. This change will move a number of cases into the EMTALA enforcement column with CMS and will increase potential hospital liability in jurisdictions that have upheld the CMS regulations in litigation cases.

Never Applied To Transfer Acceptance

Although some hospitals attempt to hide behind the CMS rule to argue that the rule also terminated their duty to accept inpatients for emergency transfer under EMTALA, CMS and courts have never applied the rule to block the duty to accept transfers under EMTALA.

3 thoughts on “My Opinion: Admission For Less Than “Two Midnights” Does Not Terminate EMTALA Liability”

  1. Steve: I suppose your interpretation depends on the dichotomy between the word “admission” and the plain meaning of the EMTALA term “hospitalized.” Some hospitals (and certainly most patients) would consider a single overnight stay to imply “hospitalized” even if the patient was discharged the next morning. So, if I “admit” someone under observation status before midnight, meaning he/she is “hospitalized” overnight prior to discharge the next afternoon, does that relieve my hospital from any EMTALA liability over the following day?

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  2. I agree with Steve that this issue may ultimately be decided in the courts, who as we know often disagree. But to understand the principle, you have to go back to the original reason CMS was convinced that EMTALA should not apply to inpatients. It is because other CoPs protected patients once they are officially admitted as an inpatient. So to me, the question is, are there sufficient additional CoPs that would protect patients if “admitted” to “observation”, which is technically still “outpatient” status? From my reading of 42 CFR 482 (referenced in the exemption) I believe such patients would be sufficiently protected. BUT, as Steve notes, the pain language of the CFRs state “inpatient” and observation patients are clearly not “inpatients” (at least for the purposes of billing status). So, I am also inclined to agree EMTALA would continue to apply during the observation status period. My guess is many hospitals have not yet realized this.

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