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The old saying “what you don’t know can’t hurt you,” does not hold true when it to comes to avoiding the long arm of the law under the federal statute known as the Emergency Medical Treatment and Active Labor Act (EMTALA). [FOOTNOTE 1]EMTALA requires hospitals to examine and stabilize all patients who present themselves in an emergency medical condition. This article examines recent developments that have expanded the pool of emergency patients protected under EMTALA. As in the old sci-fi thriller “The Blob,” [FOOTNOTE 2]where ultimately everyone within close proximity of the oozing pink goo from outer space is drawn into the expanding morass, EMTALA can reach out and ensnare the unwary and uninitiated medical facility and its emergency department staff. While the law originated out of benevolent intent in response to reports of hospitals denying emergency health care services to the poor and uninsured, observers have now begun to demand some counterbalance to EMTALA’s burgeoning scope. [FOOTNOTE 3]Obvious health concerns, including the containment of disease, as well as the humane treatment of injured and ill persons must be balanced against the very real economic survival issues facing medical facilities every day. [FOOTNOTE 4] Congress established guidelines under EMTALA with the intent of requiring medical facilities participating in the Medicare program to evaluate and stabilize patients before transferring them to another facility. Quite simply, if hospitals wanted federal Medicare funds, then they had to play by EMTALA’s rules, as established by Congress. When enacted in 1986, EMTALA seemed very simple. But like most far-reaching legislation affecting public policy, both the courts and the federal agencies empowered to enforce the law have expanded EMTALA’s scope as they tried to define its boundaries. This year’s Arrington v. Wongexpanded EMTALA’s scope to include ambulance contact. Moreover, the Department of Health and Human Services (DHHS) on Oct. 1, 2000, revised its definition of the term “comes to the emergency department” to include general buildings and structures within 250 yards of the emergency room as well as off-campus physician facilities. Commonly known as the “Patient Anti-Dumping Act,” EMTALA now forbids hospitals from “dumping” indigent patients. It forbids patient transfers without stabilizing treatment, irrespective of whether the patient requesting emergency medical assistance is indigent or uninsured. [FOOTNOTE 5]If an individual makes a request for examination or treatment for a medical condition, a hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department — including ancillary services routinely available to the emergency department — to determine whether or not an emergency medical condition exists. [FOOTNOTE 6] As with any evolving law, uncertainty abounds. For the diligent hospital trying to comply with its obligations under EMTALA, what exactly do the words “comes to the emergency department” mean? The act’s provisions have traditionally applied to a patient who presents himself or herself in any hospital building in an emergency medical condition. [FOOTNOTE 7]The act appears potentially now to extend to some emergency situations outside of the hospital building itself. THE SCOPE IS EXPANDING The Act’s provisions now apply to off-site ambulances as well as buildings and structures within 250 yards of the hospital emergency room and to off-campus physician facilities. This extension served to impose EMTALA regulations on any facility or organization seeking provider-based status under Medicare, including hospital departments, satellite facilities and remote locations of hospitals. If such facilities want to receive Medicare funds, then they need to play by the rules. The simple deduction was that where there is Medicare funding, there shall be EMTALA. [FOOTNOTE 8]At least one court has recently confirmed that for purposes of complying with EMTALA, a patient who was not on hospital property, but riding toward the hospital in a non-hospital ambulance, can be deemed to have come to the emergency department. In Arrington v. Wong, [FOOTNOTE 9]the 9th U.S. Circuit Court of Appeals reversed the lower court by ruling that the survivors of a heart-attack victim could state an EMTALA violation against a hospital emergency department that redirected the victim’s ambulance to another emergency facility. In Arrington, Harold Arrington began to experience difficulty breathing while driving to work in Honolulu. One of his co-workers called for an ambulance that promptly arrived and routed Arrington to Queens Medical Center. En route, ambulance personnel alerted the Queens Medical Center emergency room staff that they were bringing in Arrington. A Queens Medical Center emergency physician, Norbert Wong, M.D., recommended that the ambulance personnel take Arrington to his regular doctor at Tripler Army Medical Center. The ambulance was rerouted toward Tripler. However, Arrington’s condition continued to deteriorate and he died shortly after arrival at Tripler. Arrington’s estate brought an EMTALA action against Dr. Wong and his medical group, Queens Medical Center, the city and county of Honolulu and the ambulance personnel, alleging a failure to provide appropriate emergency treatment to Arrington. The U.S. District Court for the District of Hawaii dismissed the case on the ground that EMTALA applied only in the case of a patient’s “physical presence” in the emergency room. [FOOTNOTE 10] The 9th Circuit reversed and rejected the appellees’ argument that “comes to an emergency room” unambiguously means “arrives at a hospital.” Instead, the 9th Circuit deferred to the DHHS’ expansive approach to this phrase. “Comes to the emergency department,” the court held, refers not just to the emergency room, but to all hospital property including sidewalks, outlying facilities and ambulances. [FOOTNOTE 11] HOW DID WE GET HERE? The 9th Circuit also addressed the issue of whether a hospital must admit an emergency patient who is being transported in an ambulance not owned by the hospital. The court found that EMTALA provides that a hospital may not prevent an ambulance not owned by the hospital from coming to the hospital unless it has a valid treatment-related reason for doing so. [FOOTNOTE 12]Moreover, even if an ambulance continues to head toward the hospital in spite of an instruction to take the patient elsewhere, that ambulance “comes to” the hospital and emergency treatment of the patient must be provided. [FOOTNOTE 13] While Arringtonextends EMTALA’s reach to ambulance contact, the DHHS has recently issued new revisions that expand the physical area deemed to be a part of the hospital’s emergency department. Recently, the DHHS added new language to its regulations expanding the definition of hospital property to include buildings and structures within 250 yards of the emergency room as well as off-campus physician facilities. [FOOTNOTE 14]The new regulation defines hospital property to include the entire main hospital campus including the parking lot, sidewalk and driveway, as well as any facility or organization that is located off the main hospital campus but has been determined to be a department of the hospital. [FOOTNOTE 15] Amended on Oct. 1, 2000, and effective as of Jan. 1, 2001, the DHHS added this new language to expand the definition of “emergency room” to include the campus and structures around the main hospital building. “Campus” now includes the physical area immediately adjacent to the provider’s main buildings, other areas and structures located within 250 yards of the main buildings and any other areas determined on an individual case-by-case basis to be part of the provider’s campus. [FOOTNOTE 16] STILL GROWING The reach of EMTALA continues to expand. Critics contend that EMTALA simply shifts the costs of caring for indigent patients to hospital facilities already weathering difficult financial times. One critic notes that “[e]mergency department doctors worry that regulations created to prevent patient dumping are expanding beyond their original intent again, putting another burden on already stretched emergency departments.” [FOOTNOTE 17] Arringtonhas only persuasive authority in jurisdictions outside the 9th Circuit, but district courts adjudicating similar cases will likely give the opinion ample consideration. Therefore, medical facilities may want to reset priorities to evaluate effectively and efficiently and to stabilize, if necessary, all patients before making decisions based on economics. Establishing such evaluation procedures will not only protect the health of individual patients as envisioned by EMTALA, but will also advance public health while protecting the facility from a potential backlash of additional legislation and high-priced litigation. James T. Biggs is a member in the Santa Ana, Calif., office of Los Angeles’ Cotkin, Collins & Ginsburg. His principal areas of practice include civil litigation and medical malpractice. ::::FOOTNOTES:::: FN142 U.S.C. 1395dd, implemented by 42 C.F.R. 489.24. FN2Released in 1958, “The Blob” is a film in which a teenage Steve McQueen tries to convince small town authority figures that an extraterrestrial shape is on the prowl. But his efforts are to no avail. SeeDan Kelly, DVD review of “The Blob” [online], Available at: www.thedigitalbits.com/reviews. FN3Tanya Albert, Ruling Extends EMTALA’s Reach to Ambulance Contact, American Medical News, Vol. 44, No. 9, March 5, 2001. Seewww.amednews.com. FN4H.R. Rep. No. 99-241, 99th Cong., 1st Session 27 (1985). FN542 U.S.C. 1395dd. FN642 U.S.C. 1395dd(a). FN7 McIntyre v. Schick, 795 F. Supp. 777 (E.D. Virginia 1992). FN865 Fed. Reg. 18548, No. 68, April 7, 2000. FN9237 F.3d 1066 (9th Cir. 2001). FN10 Arrington v. Wong, 19 F. Supp.2d 1151, 1156 (D.C. Haw. 1998). FN11 Id. at 1070-1072. See also 42 C.F.R. 489.24. FN12 Id. at 1072. FN13 Id. FN1442 C.F.R.. 489.24(b). FN15 Id. FN1642 C.F.R. 413.65 FN17Tanya Albert, Ruling Extends EMTALA’s Reach to Ambulance Contact, American Medical News, Vol. 44, No. 9, March 5, 2001. Seewww.amednews.com.

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