by Lyle Denniston
The U.S. Supreme Court left Washington for the summer, but in doing so, it has left hospitals in four Midwestern and bordering states with a continuing duty that the federal government says they should not have: Provide emergency care for patients even after they’re admitted for in-patient treatment. And, although that duty only applies directly to those four states, lawyers say it may also result in confusion for hospitals in perhaps 10 other states.
This is because the Supreme Court declined to hear a Michigan hospital’s appeal on an issue about emergency care that has been debated for well over a decade. The Court’s refusal, as it turns out, means that, for at least another year, many hospitals will not know for sure what their legal duties are under the federal “Patient Anti-Dumping Act,” formally known as the Emergency Medical Treatment and Labor Act of 1986. If emergency room staff decides to admit a patient for medically necessary reasons, the hospital may not be clear what level of care is legally required.
The government promised the Supreme Court that it would sort all this out, with some new, clarifying regulations, but not until 2011 – and hospital lawyers say that target is not likely to be reached.
Procedure Trumped Substance, For Now.
Providence Hospital and Medical Center in Southfield, Mich. asked for clarification of the anti-dumping law. That Act applies to all hospitals that take part in the federal Medicare program for the elderly and that operate an emergency department of their own.
The Sixth U.S. Circuit Court of Appeals had ruled that, under the law, Providence was barred from discharging or transferring a patient who had come into the emergency room until that individual has been stabilized, even if the doctor had decided the patient needed to be admitted for in-patient care and the patient ceased to be an emergency case. The hospital wanted the Supreme Court to rule that its legal obligation to provide stabilizing care ended in the ER. After that, the hospital’s own judgment would dictate appropriate care.
Providence had reason to be optimistic: It was relying on an official regulation that the federal Department of Health and Human Services had issued in 2003, saying, in effect, that the emergency treatment duty did, indeed, end prior to in-patient admission. Speaking through the Justice Department, the government told the Supreme Court that Providence was right, and the appeals court was wrong. But, disappointing to Providence, the department gave the Supreme Court a variety of procedural reasons why it should not issue a ruling in that particular case.
The court accepted that advice, and turned down Providence’s appeal. It did so even though Providence’s lawyers had objected that a refusal to settle the legal issue now would create a significant problem not only for hospitals, but for federal health officials seeking to enforce the anti-dumping law.
For the Time Being: Who’s on First?
As a result of the Supreme Court’s hesitancy, it appears, hospitals in as many as 14 states may now face at least confusion, and maybe legal risk.
Here’s why: Southfield’s home state, Michigan, and three others – Kentucky, Ohio and Tennessee – have to go on obeying the emergency care obligation laid down by the Sixth Circuit appeals court, because the Supreme Court did not disturb that ruling. But federal health officials who enforce care obligations under the anti-dumping act in those four states also have to perform the same task in 10 other states. Hospitals in those other states supposedly can rely on the HHS view that they need not provide emergency care to in-patients. But, Providence wonders whether the federal officials to whom they must answer will be able to apply one standard to one group of states and another to another group.
To make things murkier, the same government regional office that enforces the law in Michigan and Ohio, the lawyers noted, also does so for hospitals in Illinois, Indiana, Minnesota and Wisconsin. And, the regional office that enforces the law in Kentucky and Tennessee also have oversight over hospitals in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina. Those two regional offices “now have two different standards that apply to the states within their respective regions,” according to Providence’s lawyers.
Providence’s lawyers also have voiced skepticism about the Justice Department’s promise that HHS plans to do a new study about how to regulate hospitals on the emergency-care issue, perhaps replacing the 2003 regulation that the Sixth Circuit refused to follow. HHS, the government lawyers said, “is committed” to seeking public comment on the issue this year and proposing a new regulation in 2011.
Disputing that, Providence’s lawyers said that the last time HHS wrote a regulation on the issue, it took four years to do so after promising the Supreme Court in a 1999 case that it would. If that kind of timetable unfolds this time, according to those lawyers, “HHS might (or might not) by 2014 or 2015 have implemented a different policy.”
Veteran legal reporter Lyle Denniston has been covering the U.S. Supreme Court for more than 50 years.
