Health Law Update


EMTALA Applicability

February 6, 2012

On February 2, 2012, the Centers for Medicare & Medicaid Services (CMS) affirmed two of its long held positions regarding the applicability of the Emergency Medical Treatment and Labor Act (EMTALA).[1]  The first affirmation applies to inpatients and the second relates to hospitals with specialized capabilities.[2]  With regard to the latter, however, CMS is providing a 60 day comment period to allow the public to provide relevant data, comment, and real examples for consideration. 

EMTALA, the federal anti-dumping statute, ensures that one who presents at a hospital’s emergency department shall not be denied essential lifesaving services regardless of insurance coverage.  A patient cannot be transferred or released until the condition is stabilized as a hospital is obligated to provide either necessary stabilizing treatment or an appropriate transfer to another facility where stabilization can occur.  Failure to meet EMTALA obligations may result in loss of a hospital’s Medicare provider agreement and/or civil monetary penalties. 

Over the last decade, much concern has arisen about the applicability of EMTALA to hospital inpatients and hospitals with specialized capabilities.  In CMS’ 2003 Final Rule,[3] it stated that a hospital’s obligation under EMTALA ended and did not apply to inpatients.  CMS’ rationalization for ending the application of EMTALA once a patient was admitted to a hospital as an inpatient was the existence of other patient safeguards which protect all inpatients, including Medicare’s Conditions of Participation for hospitals as well as state malpractice laws.  CMS has also faced ongoing need for clarification regarding the application of EMTALA to hospitals with specialized capabilities.[4]  In CMS’ 2008 Final Rule, it issued its final policy stating a hospital with specialized capabilities did not have an EMTALA obligation to an individual who has been admitted in good faith as an inpatient at the first hospital.[5]  In other words, if one presented to an emergency department and was admitted as an inpatient and it was subsequently discovered after the admission that the patient required specialized care of another hospital, the hospital with specialty capabilities would not have an EMTALA obligation since the EMTALA obligation ceased at the time the patient was admitted to the first hospital. 

This latest notice affirms that the EMTALA policies will remain the same and CMS will continue to monitor the specific issue regarding hospitals with specialty capabilities for future reconsideration. As such, it is providing until April 2, 2012 to allow the public to submit relevant data and real examples.[6]


[1]           42 CFR 489.24 (1985).
[2]           77 FR 5213 (2012).
[3]           68 FR 53243 (2003).
[4]           73 FR 23669 (2008).
[5]           73 FR 48659 (2008).
[6]           77 FR 5213 (2012).