Today, CMS published an advance notice of proposed rulemaking requesting comments on the need to publish a proposed rule to address policies related to the Emergency Medical Treatment and Labor Act (EMTALA). CMS said it is “aware that there continues to be a range of opinions even at the Circuit Court level on the topic of EMTALA's application to inpatients. CMS further said it “would find it particularly helpful if commenters could submit specific real world examples that demonstrate whether it would be beneficial to revisit the policies.” Comments will be accepted until Feb. 21, 2011.
In Baby K, the 4th Circuit held that EMTALA required the stabilization of an anencephalic infant's respiratory distress because that was an emergency medical condition. The court held that EMTALA's obligations are categorical and unaffected by medical standards of care. Baby K has never been overruled. Still, its impact has been substantially mitigated by the inpatient exception rule, first adopted by the federal circuits (including the 4th Circuit in Bryan) and later by CMS in regulations. Since most futility disputes concern inpatients (often ICU patients), EMTALA is rarely applicable. If the inpatient rule were eliminated, as it already has been in the 6th Circuit, then that could create real obstacles to appropriate resolution of futility disputes.
In Baby K, the 4th Circuit held that EMTALA required the stabilization of an anencephalic infant's respiratory distress because that was an emergency medical condition. The court held that EMTALA's obligations are categorical and unaffected by medical standards of care. Baby K has never been overruled. Still, its impact has been substantially mitigated by the inpatient exception rule, first adopted by the federal circuits (including the 4th Circuit in Bryan) and later by CMS in regulations. Since most futility disputes concern inpatients (often ICU patients), EMTALA is rarely applicable. If the inpatient rule were eliminated, as it already has been in the 6th Circuit, then that could create real obstacles to appropriate resolution of futility disputes.
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