EMTALA Compliance Update “Reverse Dumping” A Presentation at the Georgia Hospital Association December 8, 2009 Rob Stone, Esq. ALSTON + BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 rob.stone@alston.com (404) 881-7270

Take-Aways Medicare certified hospitals are required to accept most transfers where the receiving hospital has capabilities that the transferring hospital does not Receiving hospital must have “capacity” Lateral transfers not required Does not apply to inpatients A closer appropriate facility does not provide a basis for refusing a requested transfer Standard EMTALA obligations still apply if a hospital refuses a transfer, but the patient is transferred anyway OIG continues to purse enforcement actions in this area

Basic Legal Requirement A hospital that has “specialized capabilities or facilities,” including but not limited to Burn units Shock-trauma units Neo-natal intensive care units or Regional Referral Centers (rural areas only) May not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities, if the receiving hospital has the capacity to treat the individual

Broad Interpretation CMS has effectively interpreted the term “specialized capabilities” to mean any capabilities that the receiving hospital possesses, which the transferring hospital does not “The recipient hospital with specialized capabilities or facilities has an obligation under [the Act] to accept a transfer if the individual has an unstabilized emergency medical condition and if the hospital has the capacity to treat the individual. If a hospital desires to transfer an individual to another hospital and the individual does not require any treatment beyond the capabilities or facilities available at the transferring hospital, the intended receiving hospital may refuse to accept the transfer of an individual in accordance with [the Act].” (Preamble)

Capacity Requirement In order for the reverse dumping obligations to apply, the receiving hospital must have the “capacity” to treat the patient Capacity means the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual (Interp. Guidelines) Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits (Preamble)

Lateral Transfers Lateral transfers (meaning transfers between facilities of comparable resources and capabilities) are not required by the reverse dumping provision (except when the transferring hospital has a “serious capacity problem,” such as loss of power or significant flooding) (Interp. Guidelines) CMS’s position is that the benefits of a lateral transfer would generally not outweigh the risks of the transfer (Interp. Guidelines)

Rule Applies Regardless of Dedicated ED Unlike other EMTALA provisions, the Reverse Dumping provision applies to any Medicare participating hospital regardless of whether the hospital has a dedicated emergency department This means, for example, a Medicare certified psychiatric hospital would be required to accept an appropriate transfer of a patient requiring specialized psychiatric services (Interp. Guidelines)

No Application to Inpatient Transfers The Reverse Dumping Provision does not apply to an individual who has been admitted to the referring hospital (i.e., is an inpatient of the referring hospital) Inpatient means an individual who is admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services, with the expectation that they will remain at least overnight, even if the situation develops such that the patient does not actually remain overnight (i.e. discharged or transferred) (Regulations) Individuals who are placed in observation status are not inpatients, even if they remain overnight (Interp. Guidelines)

No Conditioning Acceptance on Method of Transport The receiving hospital may not condition its acceptance of an appropriate transfer of an individual protected under EMTALA on use of a particular mode of transport or transport service (Interp. Guidelines) It is the treating physician’s responsibility to determine how the individual is transported and what transport service will be used – under the general obligation to minimize the risk to the individual being transferred (Regulations)

Closer Facility Does Not Alleviate Obligation The fact that there is a facility closer to the transferring hospital that also possesses the specialized capacity is not a legitimate basis for rejecting a transfer CMS expressed concern that debating such issues could result in delays of patient care Practice Pointers: Inform the transferring hospital of the closer facility without refusing the transfer Attempt to resolve the problem after the transfer occurs

Transfer In Spite of Appropriate Refusal If a receiving hospital appropriately refuses to accept a transfer (due to lack of specialized capability or lack of capacity) but the transferring hospital transfers the patient anyway, the receiving hospital’s EMTALA obligations still apply This is similar to a standard patient dumping situation

Only Applicable Within US Medicare certified hospitals are only required to accept transfers from hospitals that are located within the boundaries of the United States (including D.C., Puerto Rico, Virgin Islands, Guam, and American Samoa) (Regulations)

St. Anthony Hospital Case 08-08-2002 - $35,000 The Tenth Circuit Court of Appeals upheld the Department's determination to impose a $35,000 CMP against St. Anthony Hospital, Oklahoma City, Oklahoma, for violating the patient dumping statute. The court found that St. Anthony had violated section 1867(g) of the Social Security Act, which requires hospitals with specialized capabilities or facilities to accept appropriate transfers of individuals who require such specialized capabilities or facilities. The Tenth Circuit ruled that St. Anthony Hospital refused to accept an appropriate transfer of a critically injured patient who required its specialized surgical capabilities. St. Anthony refused the transfer because the on-call surgeon refused to come to the hospital to perform the surgery. St. Anthony Hosp. v. United States Dep't of Health and Human Servs., 309 F.3d 680 (10th Cir. 2002).

Other OIG Enforcement Actions 06-04-2009 - $50,000 Palms West Hospital (PWH), Florida, agreed to pay $50,000 to resolve its liability for CMPs under the patient dumping statute. The OIG alleged that on two separate occasions, PWH refused to accept an appropriate transfer to its hospital of a patient in need of specialized capabilities available at PWH. 03-14-2008 - $20,000 Denver Health Medical Center (Denver Health), Colorado, agreed to pay $20,000 to resolve allegations that it refused to accept an appropriate transfer of an individual who required Denver Health's specialized Level I trauma capabilities after an automobile accident.

Other OIG Enforcement Actions, Cont’d 05-08-2006 - $35,000 The University of Chicago Hospitals (UCH), Illinois, agreed to pay $35,000 to resolve its liability for CMPs under the patient dumping statute. The OIG alleged that the hospital failed to accept an appropriate transfer of a 61-year-old male who presented to another emergency department with a complaint of flank pain. UCH had specialized capabilities not available at the transferring hospital and allegedly refused to accept transfer after learning that the patient did not have insurance. UCH then later agreed to accept transfer of the patient only if he provided proof of funds in a bank account. The patient was transferred to another hospital where he died. 12-23-2005 - $80,000 Queen of the Valley Hospital, California, agreed to pay $80,000 to resolve its liability for CMPs under the patient dumping statute arising out of two incidents. The OIG alleged that the hospital refused to accept the transfer of a critical patient to its intensive care unit and failed to provide an appropriate medical screening exam to a pregnant patient who presented to the hospital’s maternity ward.

Other OIG Enforcement Actions, Cont’d 02-19-2004 - $50,000 Public Health Trust of Miami-Dade County, Florida d/b/a Jackson Memorial Hospital (Jackson) agreed to pay $50,000 to resolve its liability for CMPs under the patient dumping statute. The OIG alleged that Jackson, which operates a specialized burn center, refused to accept from a referring hospital (which did not have a burn unit) an appropriate transfer of a woman who sustained significant burns to her hands and feet. Jackson allegedly denied the transfer, incorrectly informing the referring hospital that the woman’s burns did not meet their burn unit criteria. Jackson also refused to assume financial responsibility for the patient. The woman was airlifted to another Florida hospital with a specialized burn center and treated for her injuries.

Other OIG Enforcement Actions, Cont’d 02-13-2004 - $35,000 University of Colorado Hospital Authority (University Hospital), Colorado, agreed to pay $35,000 to resolve its liability for CMPs under the patient dumping statute for allegedly refusing to accept from a referring hospital an appropriate transfer of an individual requiring specialized treatment. The patient presented to the referring hospital by ambulance after having taken an overdose of medication and alcohol in an attempt to commit suicide. After examining and treating the patient to the extent of its capacity, the referring hospital determined that the patient was still suicidal and in need of further psychiatric examination and treatment. The referring hospital attempted to transfer the patient to University Hospital where specialized and inpatient psychiatric services were available. The OIG alleged that upon learning that the patient had no insurance, University Hospital refused to accept the transfer of the patient.

Take-Aways Medicare certified hospitals are required to accept most transfers where the receiving hospital has capabilities that the transferring hospital does not Receiving hospital must have “capacity” Lateral transfers not required Does not apply to inpatients A closer appropriate facility does not provide a basis for refusing a requested transfer Standard EMTALA obligations still apply if a hospital refuses a transfer, but the patient is transferred anyway OIG continues to purse enforcement actions in this area

EMTALA Compliance Update “Reverse Dumping” A Presentation at the Georgia Hospital Association December 8, 2009 Rob Stone, Esq. ALSTON + BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 rob.stone@alston.com (404) 881-7270