Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules 5213 

V. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination of attainment based on 

air quality, and would not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 

determination that the St. Louis area 

attained the 1997 8-hour ozone NAAQS 

by its applicable attainment date does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIPs are 

not approved to apply in Indian country 

located in the states, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, ozone, Reporting and 

recordkeeping requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: January 19, 2012. 

Karl Brooks, 

Regional Administrator, Region 7. 

Dated: January 25, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2012–2336 Filed 2–1–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 489 

[CMS–1350–NC] 

RIN 0938–AQ51 

Medicare Program; Emergency Medical 

Treatment and Labor Act (EMTALA): 

Applicability to Hospital Inpatients and 

Hospitals With Specialized Capabilities 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Request for comments. 

SUMMARY: This request for comments 

addresses the applicability of the 

Emergency Medical Treatment and 

Labor Act (EMTALA) to hospital 

inpatients. 

DATES: Comment Date: To be assured 

consideration, comments on the 

Applicability of EMTALA to Hospitals 

with Specialized Capabilities (section 

II.B. of this document) must be received 

at one of the addresses provided below, 

no later than 5 p.m. EST on April 2, 

2012. 

ADDRESSES: In commenting, please refer 

to file code CMS–1350–NC. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–1350–NC, P.O. Box 8013, 

Baltimore, MD 21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–1350–NC, 

Mail Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue SW., 

Washington, DC 20201 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

1066 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Renate Dombrowski, (410) 786–4645, 

Ankit Patel, (410) 786–4537. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http:// 

www.regulations.gov. Follow the search 

instructions on that Web site to view 

public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 


tkelley on DSK3SPTVN1PROD with PROPOSALS
5214 Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Background 

Sections 1866(a)(1)(I), 1866(a)(1)(N), 

and 1867 of the Social Security Act (the 

Act) were enacted as parts of the 

Emergency Medical Treatment and 

Labor Act (EMTALA). These statutory 

provisions impose specific obligations 

on certain Medicare-participating 

hospitals and critical access hospitals 

(CAHs). (Throughout this document, 

when we reference the obligation of a 

‘‘hospital’’ under these sections of the 

Act and in our regulations, we mean to 

include CAHs as well.) These 

obligations concern individuals who 

come to a hospital’s ‘‘dedicated 

emergency department’’ (as defined at 

42 CFR 489.24(b)) and request 

examination or treatment for a medical 

condition and apply to all of these 

individuals regardless of whether they 

are beneficiaries of any program under 

the Act. 

EMTALA, also known as the patient 

antidumping statute, was passed in 

1986 as part of the Consolidated 

Omnibus Budget Reconciliation Act of 

1985 (COBRA), Public Law 99–272. 

Congress incorporated these 

antidumping provisions within the 

Social Security Act to ensure that any 

individual with an emergency medical 

condition (EMC), regardless of the 

individual’s insurance coverage, is not 

denied essential lifesaving services. 

Under section 1866(a)(1)(I)(i) of the Act, 

a hospital that fails to fulfill its 

EMTALA obligations under these 

provisions may be subject to 

termination of its Medicare provider 

agreement which would result in the 

loss of Medicare and Medicaid 

payments. In addition, section 1867(d) 

of the Act provides for the imposition of 

civil monetary penalties on a hospital or 

physician who negligently violates a 

requirement of EMTALA under section 

1867 of the Act. 

Section 1867 of the Act sets forth 

requirements for medical screening 

examinations for individuals who come 

to the emergency department of a 

hospital and request examination or 

treatment for a medical condition. The 

statute further provides that, if a 

hospital finds that such an individual 

has an EMC, it is obligated to provide 

that individual with either necessary 

stabilizing treatment or an appropriate 

transfer to another medical facility 

where stabilization can occur. The 

EMTALA statute also separately 

outlines the obligation of hospitals to 

receive appropriate transfers from other 

hospitals. Section 1867(g) of the Act 

states that ‘‘A participating hospital that 

has specialized capabilities or facilities 

(such as burn units, shock-trauma units, 

neonatal intensive care units, or (with 

respect to rural areas) regional referral 

centers as identified by the Secretary in 

regulation) shall not refuse to accept an 

appropriate transfer of an individual 

who requires such specialized 

capabilities or facilities if the hospital 

has the capacity to treat the individual.’’ 

The regulations implementing section 

1867 of the Act are found at 42 CFR 

489.24. The regulations at 42 CFR 

489.20(l), (m), (q), and (r) also refer to 

certain EMTALA requirements outlined 

in section 1866 of the Act. The 

Interpretive Guidelines concerning 

EMTALA are found at Appendix V of 

the CMS State Operations Manual: 

http://www.cms.gov/manuals/ 

Downloads/som107ap_v_emerg.pdf. 

A. Applicability of EMTALA to Hospital 

Inpatients 

The focus of EMTALA routinely 

involves the treatment of individuals 

who ‘‘come to the emergency 

department,’’ as we have defined that 

term at 42 CFR 489.24(b); that is, the 

individual is in a hospital-owned and 

operated ambulance or ‘‘has presented 

at a hospital’s dedicated emergency 

department * * * and requests 

examination or treatment for a medical 

condition, or has such a request made 

on his or her behalf [or] [h]as presented 

on hospital property * * * other than 

the dedicated emergency department, 

and requests examination or treatment 

for what may be an emergency medical 

condition, or has such a request made 

on his or her behalf.’’ 

However, concerns have also arisen 

about the continuing applicability of 

EMTALA to hospital inpatients. We 

have previously discussed the 

applicability of EMTALA to hospital 

inpatients in the May 9, 2002 (67 FR 

31475) Hospital Inpatient Prospective 

Payment System (IPPS) proposed rule 

entitled ‘‘Medicare Program; Changes to 

the Hospital Inpatient Prospective 

Payment Systems and Fiscal Year 2003 

Rates’’ (hereinafter referred to as the FY 

2003 IPPS proposed rule) and the 

September 9, 2003 (68 FR 53243) standalone final rule on EMTALA entitled 

‘‘Medicare Program; Clarifying Policies 

Related to the Responsibilities of 

Medicare-Participating Hospitals in 

Treating Individuals With Emergency 

Medical Conditions’’ (hereinafter 

referred to as the 2003 EMTALA final 

rule). As we noted in these prior 

proposed and final rules, in 1999, the 

United States Supreme Court 

considered a case (Roberts v. Galen of 

Virginia, 525 U.S. 249 (1999)) that 

involved, in part, the question of 

whether EMTALA applies to hospital 

inpatients. In the context of that case, 

the United States Solicitor General 

advised the Court that HHS would 

develop a regulation clarifying its 

position on this issue. In the FY 2003 

IPPS proposed rule, we proposed that 

EMTALA continues to apply to 

admitted individuals who are not 

stabilized (who presented under 

EMTALA), but that it would not 

otherwise apply to inpatients. We 

indicated that individuals whose 

conditions go in and out of apparent 

stability rapidly and frequently would 

not be considered ‘‘stabilized’’ and the 

hospital would continue to have an 

obligation to such individuals even after 

they are admitted. However, for all other 

inpatients we stated that EMTALA was 

intended to provide protection to 

individuals coming to a hospital to seek 

care for an EMC. Therefore, we stated 

that we believe the EMTALA 

requirements do not extend to stabilized 

inpatients even if they subsequently 

become unstable because those 

inpatients are protected by a number of 

Medicare conditions of participation 

(CoPs) as well as the hospital’s other 

legal, licensing, and professional 

obligations with respect to the 

continued proper care and treatment of 

its patients. 

In the 2003 EMTALA final rule, we 

refined this position to state that a 

hospital’s obligation under EMTALA 

ends either when the individual is 

stabilized or when that hospital, in good 

faith, admits an individual with an EMC 

as an inpatient in order to provide 

stabilizing treatment. That is, we stated 

that EMTALA does not apply to any 

inpatient, even one who was admitted 

through the dedicated emergency 

department and for whom the hospital 

had initially incurred an EMTALA 

obligation to stabilize an EMC, and who 

remained unstabilized after admission 

as an inpatient. We noted that other 

patient safeguards protect all inpatients, 

including the hospital CoPs as well as 

State malpractice law. In addition, we 

noted that judicial interpretation of the 

matter and comments we received on 

the proposed rule helped shape the 

policy articulated in the final rule. 

However, we also stated in the rule that 

a hospital could not escape liability 

under EMTALA by admitting an 

individual with no intention of treating 

the individual and then inappropriately 


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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules 5215 

transferring or discharging that 

individual without having met the 

stabilization requirement. 

B. EMTALA Technical Advisory Group 

Recommendation Regarding 

Responsibilities of Hospitals With 

Specialized Capabilities 

Section 945 of the Medicare 

Prescription Drug, Improvement, and 

Modernization Act of 2003 (MMA), 

Public Law 108–173, required the 

Secretary to establish a Technical 

Advisory Group (TAG) to advise the 

Secretary on issues related to the 

regulations and implementation of 

EMTALA. The EMTALA TAG’s 

functions, as identified in the charter for 

the EMTALA TAG, were as follows: 

• Review EMTALA regulations. 

• Provide advice and 

recommendations to the Secretary 

concerning these regulations and their 

application to hospitals and physicians. 

• Solicit comments and 

recommendations from hospitals, 

physicians, and the public regarding the 

implementation of such regulations. 

• Disseminate information 

concerning the application of these 

regulations to hospitals, physicians, and 

the public. 

The TAG met 7 times during its 30- 

month term, which ended on September 

30, 2007. At its meetings, the TAG heard 

testimony from representatives of 

physician groups, hospital associations, 

and others regarding EMTALA issues 

and concerns. During each meeting, 

recommendations developed by 

subcommittees established by the TAG 

were discussed and voted on by 

members of the TAG. One of these 

recommendations, presented by the 

TAG to CMS during its September 2007 

meeting, called for CMS to revise its 

regulations to address the situation of an 

individual who: (1) Presents to a 

hospital that has a dedicated emergency 

department and is determined to have 

an EMC; (2) is admitted to the hospital 

as an inpatient for purposes of 

stabilizing the EMC; and (3) 

subsequently needs a transfer to a 

hospital with specialized capabilities to 

receive stabilizing treatment that cannot 

be provided by the referring hospital 

that originally admitted the individual. 

This recommendation can be found at 

the following Web site: http:// 

www.cms.gov/EMTALA/Downloads/ 

EMTALA_Final_Report_Summary.pdf. 

C. Applicability of EMTALA to Hospital 

Inpatients and Responsibilities of 

Hospitals With Specialized Capabilities 

To further clarify our position on the 

applicability of EMTALA and the 

responsibilities of hospitals with 

specialized capabilities to accept 

appropriate transfers, the agency 

included as part of the April 30, 2008 

Hospital IPPS proposed rule (73 FR 

23669) entitled, ‘‘Medicare Program; 

Proposed Changes to the Hospital 

Inpatient Prospective Payment Systems 

and Fiscal Year 2009 Rates; Proposed 

Changes to Disclosure of Physician 

Ownership in Hospitals and Physician 

Self-Referral Rules; Proposed Collection 

of Information Regarding Financial 

Relationships Between Hospitals and 

Physicians’’ (hereinafter referred to as 

the FY 2009 IPPS proposed rule), two 

proposals that addressed the issue of 

hospital inpatients. First, we stated that 

we believe that the obligation of 

EMTALA does not end for all hospitals 

once an individual is admitted as an 

inpatient to the hospital where the 

individual first presented with a 

medical condition that was determined 

to be an EMC. Rather, once the 

individual is admitted, the admission 

only affects the EMTALA obligation of 

the hospital where the individual first 

presented (the admitting hospital). In 

the FY 2009 IPPS proposed rule (73 FR 

23670), we stated that section 1867(g) of 

the Act (which refers to responsibilities 

of hospitals with specialized 

capabilities) 

* * * requires a receiving hospital with 

specialized capabilities to accept a request to 

transfer an individual with an unstable 

emergency medical condition as long as the 

hospital has the capacity to treat that 

individual, regardless of whether the 

individual had been an inpatient at the 

admitting hospital. 

We stated that we believe that 

permitting inpatient admission at the 

admitting hospital to end EMTALA 

obligations for another hospital would 

seemingly contradict the intent of 

section 1867(g) of the Act to ensure that 

hospitals with specialized capabilities 

provide medical treatment to 

individuals with EMCs in order to 

stabilize those conditions. We further 

noted that while a hospital inpatient is 

protected under Medicare CoPs and may 

also have additional protections under 

State law, the obligations of another 

hospital under the CoPs apply only to 

that hospital’s patients, and there is no 

CoP that requires a hospital to accept 

the transfer of a patient from another 

facility. We proposed to interpret 

section 1867(g) of the Act as creating an 

obligation on hospitals with specialized 

capabilities to accept appropriate 

transfers of individuals for whom the 

admitting hospital originally had an 

EMTALA obligation under section 1867 

of the Act, if the hospital with 

specialized capabilities has the capacity 

to treat the individuals. Thus, in the FY 

2009 IPPS proposed rule (73 FR 23670), 

we proposed to amend the regulations 

* * * to add a provision to state that when 

an individual covered by EMTALA was 

admitted as an inpatient and remains 

unstabilized with an emergency medical 

condition, a receiving hospital with 

specialized capabilities has an EMTALA 

obligation to accept that individual, 

assuming that the transfer of the individual 

is an appropriate transfer and the 

participating hospital with specialized 

capabilities has the capacity to treat the 

individual. 

We received many comments 

opposing the proposal concerning 

hospitals with specialized capabilities 

included in the FY 2009 IPPS proposed 

rule. The commenters stated that the 

proposed rule would effectively 

‘‘reopen’’ EMTALA for the admitting 

hospital by extending EMTALA’s 

requirements for an ‘‘appropriate 

transfer’’ despite the fact that the 

admitting hospital’s general EMTALA 

obligations ended, under regulation, 

when it admitted an individual as an 

inpatient. The commenters also stated 

that, because the original admitting 

hospital may claim that it lacks the 

capability to stabilize the individual’s 

EMC, finalizing the proposed policy 

would result in an increase in patient 

dumping and inappropriate transfers, 

especially to teaching hospitals, tertiary 

care centers, and urban safety net 

hospitals. Commenters further asserted 

that finalizing CMS’ policy as proposed 

would exacerbate confusion 

surrounding the determination of 

whether an individual is considered 

stable. That is, the hospital would be 

required to continuously monitor the 

individual to determine if at any point 

in the emergency department or even as 

an inpatient, the individual experienced 

a period of stability since such stability 

would end EMTALA obligations for all 

hospitals that might otherwise have 

obligations under the law. Under this 

scenario, the commenters asserted that 

the hospital with specialized 

capabilities would be forced to accept 

the transfer of an individual, potentially 

increasing the number of inappropriate 

or unnecessary transfers, because that 

hospital would be unable, with 

complete certainty, to determine 

whether the individual being transferred 

had ever experienced a period of 

stability. 

As a result, in the August 19, 2008 

IPPS final rule (73 FR 48659) entitled, 

‘‘Medicare Program; Changes to the 

Hospital Inpatient Prospective Payment 

Systems and Fiscal Year 2009 Rates; 

Payments for Graduate Medical 

Education in Certain Emergency 

Situations; Changes to Disclosure of 


tkelley on DSK3SPTVN1PROD with PROPOSALS
5216 Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules 

Physician Ownership in Hospitals and 

Physician Self-Referral Rules; Updates 

to the Long-Term Care Prospective 

Payment System; Updates to Certain 

IPPS-Excluded Hospitals; and 

Collection of Information Regarding 

Financial Relationships Between 

Hospitals’’ (hereinafter referred to as the 

FY 2009 IPPS final rule) we stated that, 

Due to the many concerns that the 

commenters raised which are noted above, 

we believe it is appropriate to finalize a 

policy to state that if an individual with an 

unstable emergency medical condition is 

admitted, the EMTALA obligation has ended 

for the admitting hospital and even if the 

individual’s emergency medical condition 

remains unstabilized and the individual 

requires special services only available at 

another hospital, the hospital with 

specialized capabilities does not have an 

EMTALA obligation to accept an appropriate 

transfer of that individual. 

Put another way, we finalized a policy 

that a hospital with specialized 

capabilities does not have an EMTALA 

obligation to accept an appropriate 

transfer of an individual who has been 

admitted in good faith as an inpatient at 

the first hospital. In the FY 2009 IPPS 

final rule (73 FR 48659), we stated that 

we believe that, 

* * * finalizing the policy as proposed may 

negatively impact patient care, due to an 

increase in inappropriate transfers which 

could be detrimental to the physical and 

psychological health and well-being of 

patients [and we were] concerned that 

finalizing our proposed rule could further 

burden the emergency services system and 

may force hospitals providing emergency 

care to limit their services or close, reducing 

access to emergency care. 

In addition, we stated that we were 

concerned about the possible disparate 

treatment of inpatients under the 

proposed policy because an individual 

who presented to a hospital under 

EMTALA might have different transfer 

rights than an inpatient who was 

admitted for an elective procedure. In 

the FY 2009 IPPS final rule (73 FR 

48659) we stated— 

[W]e believe that, in the case where an 

individual is admitted and later found to be 

in need of specialized care not available at 

the admitting hospital, hospitals with 

specialized capabilities generally do accept 

the transfer, even in the absence of a legal 

requirement to do so. 

Finally, while we adopted a final rule 

that limits the EMTALA responsibilities 

of a hospital with specialized 

capabilities (73 FR 48661), we 

* * * encourage[d] the public to make CMS 

aware if this interpretation of section 1867(g) 

of the Act should result in harmful refusals 

by hospitals with specialized capabilities to 

accept the transfer of inpatients whose 

emergency medical condition remains 

unstabilized, or any other unintended 

consequences. 

D. Litigation Related to the Applicability 

of EMTALA to Hospital Inpatients 

We are aware that there continues to 

be a range of opinions, even at the 

Federal circuit court level, on the topic 

of EMTALA’s application to inpatients. 

For example, in Thornton v. Southwest 

Detroit Hospital, 895 F.2d 1131, 1134 

(6th Cir. 1990), the Sixth Circuit stated 

that, ‘‘once a patient is found to suffer 

from an [EMC] in the emergency room, 

she cannot be discharged until the 

condition is stabilized * * *.’’ 

However, other courts have concluded 

that a hospital’s obligations under 

EMTALA end at the time that a hospital 

admits an individual to the facility as an 

inpatient. (See Bryan v. Rectors and 

Visitors of the University of Virginia, 95 

F.3d 349 (4th Cir. 1996) and Bryant v. 

Adventist Health System/West, 289 F.3d 

1162 (9th Cir. 2002)). More recently, in 

Moses v. Providence Hospital and 

Medical Centers Inc., 561 F.3d 573 (6th 

Cir. 2009), the Sixth noted that the 

policy articulated in the 2003 EMTALA 

final rule that a hospital’s obligation 

under EMTALA would end when that 

hospital, in good faith, admits an 

individual with an EMC as an inpatient 

was contrary to the plain language of the 

EMTALA statute. Rather, the court 

stated that a hospital’s EMTALA 

obligations to an individual continue 

until that individual’s EMC is stabilized 

regardless of the individual’s status as 

an inpatient or outpatient. 

E. Advance Notice of Proposed 

Rulemaking: Applicability of EMTALA 

to Hospital Inpatients and Hospitals 

With Specialized Capabilities 

In 2010, United States Solicitor 

General advised the Supreme Court that 

HHS had committed to initiating a 

rulemaking process to reconsider the 

policy articulated in its current 

regulations, which state that a hospital’s 

EMTALA obligations end upon the good 

faith admission as an inpatient of an 

individual with an EMC. In the 

December 23, 2010 Federal Register (75 

FR 80762), we published an advance 

notice of proposed rulemaking 

(ANPRM) entitled ‘‘Medicare Program; 

Emergency Medical Treatment and 

Labor Act: Applicability to Hospital and 

Critical Access Hospital Inpatients and 

Hospitals With Specialized 

Capabilities’’ to solicit comments 

regarding whether we should revisit the 

policies established in the 2003 

EMTALA final rule and the FY 2009 

IPPS final rule. In addition, we sought 

real world examples that would inform 

our understanding of the current 

policy’s impact on patients’ access to 

care for an EMC. We noted that we 

would find it particularly helpful 

whether commenters could submit 

specific real-world examples that 

demonstrate if it would be beneficial to 

revisit these policies. We stated (75 FR 

80765) that we— 

* * * are interested in hearing whether 

commenters are aware of situations where an 

individual who presented under EMTALA 

with an unstable EMC was admitted to the 

hospital where he or she first presented and 

was then transferred to another facility, even 

though the admitting hospital had the 

capacity and capability to treat that 

individual’s EMC. 

We further stated (75 FR 80765) that 

we were ‘‘* * * interested in receiving 

information regarding the accuracy of 

our statement in the August 19, 2008 

IPPS final rule that a hospital with 

specialized capabilities would accept 

the transfer of an inpatient with an 

unstabilized EMC absent an EMTALA 

obligation.’’ Lastly, we stated (75 FR 

80765) that we were interested in 

learning whether commenters were 

‘‘* * * aware of situations where an 

individual with an unstabilized EMC 

was admitted as an inpatient and 

continued to have an unstabilized EMC 

requiring the services of a hospital with 

specialized capabilities that refused to 

accept the transfer of the individual 

because current policy does not obligate 

hospitals with specialized capabilities 

to do so.’’ 

II. Provisions of the Request for 

Comments 

A. Applicability of EMTALA to Hospital 

Inpatients 

In the 2003 EMTALA final rule, we 

took the position that a hospital’s 

obligation under EMTALA ends when 

that hospital, in good faith, admits an 

individual with an unstable emergency 

medical condition as an inpatient to that 

hospital. In that rule, we noted that 

other patient safeguards including the 

CoPs as well as State malpractice law 

protect inpatients. In response to our 

request for comments in the ANPRM as 

to whether we should revisit the 

policies that were established in the 

2003 EMTALA final rule, very few 

commenters took the position that the 

admitting hospital should continue to 

have an EMTALA obligation after the 

individual is admitted as an inpatient. 

While some commenters advocated 

extending EMTALA to inpatients who 

do not experience a period of stability, 

the commenters did not provide any 

evidence that the existing policy has 

resulted in patients being admitted and 

then subsequently discharged before 


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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules 5217 

they were stable, adversely affecting the 

clinical outcome of those patients. Most 

commenters expressed support for the 

current policy that EMTALA does not 

apply to any inpatient of a hospital, 

even a patient who was admitted 

through that hospital’s dedicated 

emergency department and continues to 

be unstable. These commenters referred 

to our 2003 EMTALA final rule and 

concurred with our assessment that, 

under our existing policy, the numerous 

hospital CoPs that protect inpatients as 

well as inpatients’ rights under State 

law afford individuals admitted to a 

hospital with sufficient protection. 

Moreover, commenters appreciated the 

clarity and predictability of a bright line 

policy. Commenters also noted that our 

current policy regarding inpatients is 

achieving Congress’ intent by ensuring 

that every individual, regardless of their 

ability to pay for emergency services, 

should have access to hospital services 

provided in hospitals with emergency 

departments. 

Therefore, in light of the comments 

we received regarding the extension of 

the EMTALA obligations for hospitals 

admitting an individual through their 

dedicated emergency departments, we 

are not proposing to change the current 

EMTALA requirements for these 

hospitals. That is, we are maintaining 

our current policy that, if an individual 

‘‘comes to the [hospital’s] emergency 

department,’’ as we have defined that 

term in regulation, and the hospital 

provides an appropriate medical 

screening examination and determines 

that an EMC exists, and then admits the 

individual in good faith in order to 

stabilize the EMC, that hospital has 

satisfied its EMTALA obligation 

towards that patient. We continue to 

believe that this policy is a reasonable 

interpretation of the EMTALA statute 

and is supported by several Federal 

courts that have held that an 

individual’s EMTALA protections end 

upon admission as a hospital inpatient. 

For further explanation, we refer readers 

to the 2003 EMTALA final rule (68 FR 

53244), in which we finalized the policy 

that a hospital’s EMTALA obligations 

end upon admission. 

B. Applicability of EMTALA to 

Hospitals With Specialized Capabilities 

The second issue upon which the 

ANPRM solicited comment was, 

whether EMTALA should apply to 

situations where a hospital seeks to 

transfer an individual, who was 

admitted by that hospital as an inpatient 

after coming to the hospital’s dedicated 

emergency department with an EMC, to 

a hospital with specialized capabilities 

because the admitted inpatient 

continues to have an unstabilized EMC 

that requires specialized treatment not 

available at the admitting hospital. 

Under current regulations, if an 

individual comes to the hospital’s 

dedicated emergency department, is 

determined to have an EMC, is admitted 

as an inpatient, and continues to have 

an unstabilized EMC which requires the 

specialized capabilities of another 

hospital, the EMTALA obligation for the 

admitting hospital has ended and a 

hospital with specialized capabilities 

also does not have an EMTALA 

obligation towards that individual. 

Although we received some 

comments that supported amending the 

current regulations to require hospitals 

with specialized capabilities to accept 

the appropriate transfer of an inpatient 

who had presented to the admitting 

hospital under EMTALA and requires 

specialized capabilities to stabilize his 

or her EMC not available at the 

admitting hospital, most comments 

supported making no change to the 

current policies regarding the 

applicability of EMTALA to hospitals 

with specialized capabilities. 

Therefore, at this time, we are making 

no proposals with respect to our 

policies regarding the applicability of 

EMTALA to hospitals with specialized 

capabilities. However, we will continue 

to monitor whether it may be 

appropriate in the future to reconsider 

this issue. Thus, we are providing a 60- 

day comment period to allow the public 

to submit data or real world examples 

that are relevant to this issue. 

III. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble. If we proceed to issue a 

subsequent document on the issues 

raised therein, we will respond to those 

comments in the preamble to that 

document. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774) 

Dated: January 9, 2012. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: January 26, 2012. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2012–2287 Filed 1–31–12; 4:15 pm] 

BILLING CODE 4120–01–P 

DEPARTMENT OF TRANSPORTATION 

Maritime Administration 

46 CFR Part 327 

[Docket No. MARAD 2012–0005] 

RIN 2133–AB79 

Retrospective Review Under E.O. 

13563: Seamen’s Claims; Admiralty 

Extension Act Claims; and Admiralty 

Claims 

AGENCY: Maritime Administration, 

Department of Transportation. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: In accordance with Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ the Maritime 

Administration (MarAd) is evaluating 

the continued validity of its rules and 

determining whether they effectively 

address current issues. As part of this 

review, MarAd is soliciting public 

comment concerning clarification of its 

regulations pertaining to seamen’s 

claims, administrative action taken 

against MarAd, and litigation pertaining 

to such matters. Specifically, MarAd 

proposes to update and modernize the 

existing regulations and to adopt a 

procedural process to more effectively 

address claims arising under the Suits 

in Admiralty Act, the Admiralty 

Extension Act and the Clarification Act. 

The revised regulations implement the 

Clarification Act and implement a 

process to resolve administrative claims 

arising under the Admiralty Extension 

Act, and both the Suits in Admiralty Act 

and the Public Vessels Act, respectively. 

MarAd will consider the comments it 

receives and determine whether any 

changes should be made to the proposed 

regulation. 

DATES: Written comments are requested, 

and must be received on or before May 

2, 2012. 

ADDRESSES: You may submit comments 

[identified by Docket Number MARAD– 

2012–0005] by any of the following 

methods: 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE., Room W12– 

140, Washington, DC 20590–0001. 

• Hand Delivery or Courier: Room 

W12–140 on the plaza level of the U.S. 

Department of Transportation at 1200 

New Jersey Avenue SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 


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