Access to emergency services and care in Florida.

• Author: Ellis, Richard M.

A pregnant woman goes into labor. Another person is beset by severe chest pains. Another person suffers a traumatic injury. All three may require the services of the emergency department of an acute care hospital. This article discusses the hospital's responsibility under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) and under F.S. [Section] 395.1041.

Historical Background and Regulatory Framework

* EMTALA

EMTALA, 42 U.S.C. [Section] 1395dd, is a part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986. The statute was passed after "patient dumping"--the practice of refusing to treat uninsured patients in need of emergency care came to the attention of Congress. H.R. Rep. No. 241, 99th Cong., 1st Sess., pt. 3, at 5 (1986); 131 Cong. Rec. H9503 (Oct. 31, 1985); 131 Cong. Rec. S13903 (Oct. 23, 1985). EMTALA would "send a clear signal to the hospital community . . . that all Americans, regardless of wealth or status, should know that a hospital will provide what services it can when they are truly in physical distress." 131 Cong. Rec. S13904 (Oct. 23, 1985) (statement of Sen. Durenberger).

The situation addressed by EMTALA has been described in these terms: "Reports of patient dumping rose in the 1980s, as hospitals, generally unencumbered by any state law duty to treat, faced new cost containment pressures combined with growing numbers of uninsured and underinsured patients."(1) The quote accurately describes Florida law on access to emergency services and care at the time EMTALA was enacted.

* F.S. [Section] 395.1041

Prior to 1986, Florida law on access to emergency services and care reflected as much concern with the patient's financial debt to the hospital as with the patient's well-being(2) The Florida Legislature then enacted Florida's first statute providing for some degree of emergency services regardless of the patient's ability to pay.(3) F.S. [Section] 395.0144, effective January 1, 1987, obligated general hospitals to admit emergency patients without regard to "economic criteria or indigency," where "a licensed hospital physician" had made a "determination . . . that a person seeking emergency services shall be admitted." Sweeping reform did not arrive until 1988, however, when the legislature enacted Florida's comprehensive statute on access to emergency services and care.(4) The statute, F.S. [Section] 395.0142, included a statement of legislative intent in which the legislature "declare[d] it to be of vital importance that emergency services and care be provided by hospitals to every person in need of such care." The new law also stated that "[e]mergency services and care shall be rendered without first questioning the patient or any other person as to his or her ability to pay therefor." F.S. [Section] 395.0142(3)(d) (1988). The initial reform statute enacted in 1986 ([Section] 395.0144) was made superfluous at best by the enactment of [Section]395.0142, and was repealed in 1992.(5) F.S. [Section] 395.0142 was later renumbered as [Section] 395.1041.(6)

* Administrative Enforcement and Private Actions

EMTALA provides that a Medicare-participating hospital that "negligently violates" a requirement of the statute is subject to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case of a hospital with less than 100 beds) for each such violation. 42 U.S.C. [Section] 1395dd(d)(1). The Secretary of the U.S. Department of Health and Human Services has the authority to impose the civil money penalty.(7) 42 U.S.C. [Section] 1395dd(d)(3). Federal regulations implementing EMTALA indicate that the secretary has delegated the pursuit of civil money penalties to the Office of Inspector General of the Department of Health and Human Services. 42 C.F.R. [Section] 489.24(g)(3). The regulations further indicate that the department's administrative agency, the Health Care Financing Administration (HCFA), may terminate the participating hospital's Medicare provider agreement for a violation of EMTALA.(8) 42 C.F.R. [Section] 489.24(f).

EMTALA also provides for civil actions against hospitals. 42 U.S.C. [Section] 1395dd(d)(2). "Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of [EMTALA]" may obtain "those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate." Id. EMTALA does not provide for civil actions against the hospital's physicians.(9)

Under Florida's own statute, the Agency for Health Care Administration is authorized to "deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of [[Section] 395.1041] or rules adopted under [[Section] 395.1041]." F.S. [Section] 395.1041(5)(a). The Florida statute also provides for civil actions, but in a manner exactly contrary to EMTALA: Section 395.1041(5)(b) provides for civil actions by "[a]ny person who suffers personal harm as a result of violation" of [Section] 395.1041 or rules adopted thereunder, but the civil actions provided for are "against the responsible hospital administrative or medical staff or personnel" and not against hospitals.

The obligations of a hospital under EMTALA can be discerned by review of the cases arising under 42 U.S.C. [Section] 1395dd(d)(2)(A), the EMTALA provision for civil actions. This article analyzes a Florida acute care hospital's obligations under EMTALA through the chronology of an emergency episode, with reference made to F.S. [Section] 395.1041, where that statute substantially differs from EMTALA.

Chronology of Episode and Hospital's Obligations

* How the "Screening" Obligation Is Incurred

EMTALA requires first that a Medicare-participating hospital with an emergency department provide "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 [as defined] exists." 42 U.S.C. [Section] 1395dd(a). The "screening" duty begins "if any individual [whether or not a Medicare beneficiary] comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition." Id.

Federal regulations implementing EMTALA define what is meant by "comes to the emergency department" in pertinent part as follows: "[W]ith respect to an individual requesting examination or treatment, that the individual is on the hospital property (property includes ambulances owned and operated by the hospital, even if the ambulance is not on hospital grounds)." 42 C.F.R. [Section] 489.24(b).(10) The regulation goes on to state that, "An individual in a nonhospital-owned ambulance on hospital property is considered to have come to the hospital's emergency department." Thus the hospital's "appropriate medical screening" obligation may commence if the patient, away from the hospital, is loaded into an ambulance "owned and operated by the hospital." The patient has then, by definition, "come to the emergency department" under the federal regulation.

Though...