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See the recently promulgated EMTALA regulation at 68 Fed. Reg. 53221–53264 (Sept. 9, 2003) at 53223.Google Scholar

See id. at 53237; see also Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132 (8th Cir. 1996)(screening examination does not have to be correct or properly done, just uniform); Ingram v. Muskogee Reg. Med. Ctr., 235 F.3d 500, 552 (10th Cir. 2000)(screening requirement is for limited purpose and does impose a duty of reasonable care); and Trivette v. North Carolina Baptist Hospital, 512 S.E.2d 425 (N.C. 1999)(hospital has no duty to stabilize an emergency medical condition not found during the screening examination).Google Scholar

See In the Matter of Baby “K”, 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 825 (1994). See also Rosenbaum, S., “The Impact of United States Law on Medicine as a Profession,” JAMA (289): 1546–1556, at 1548–49.Google Scholar

See, e.g., Hyman, D., “Patient Dumping and EMTALA: Past Imperfect/Future Shock, Health Matrix 8 (1998): 29–56; Hyman, D., “Lies, Damned Lies and Narrative,” Indiana Law Journal 73 (1998): 797–865; and Epstein, R., “Living Dangerously: A Defense of Mortal Peril, University of Illinois Law Review (1998): 909–954.Google Scholar

Law and the American Health Care System, supra note 1, at pp. 823–1138.Google Scholar

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Pub. L. No. 99–272,§ 9121, 100 Stat. 164–67 (1986) codified at 42 U.S.C.§ 1395dd (2003). The statute is still sometimes referred to as “COBRA” or the “anti-dumping” law. For additional overview and background see Kamoie, B., “EMTALA: Reaching Beyond the Emergency Room to Expand Hospital Liability.” Journal of Health Law 18 (2000): 25–55. For additional details regarding the history of efforts to ensure emergency access, see Rosenblatt, R. Law, S. Rosenbaum, S., Law and the American Health Care System (New York: Foundation Press, 1997): At 36–93.Google Scholar

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See Corum v. Beth Israel Med. Ctr., 359 F. Supp. 909 (S.D.N.Y. 1973); Newsom v. Vanderbilt Univ., 653 F.2d 1100 (6th Cir. 1981); and Rosenblatt, R. Law, S. Rosenbaum, S., Law and the American Health Care System (New York: Foundation Press, 1997): At 64–65.Google Scholar

See Rosenblatt, R. Law, S. Rosenbaum, S., Law and the American Health Care System (New York: Foundation Press, 1997): At 64–65.Google Scholar

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42 U.S.C.§ 291c(e). See also the applicable regulations at 42 C.F.R.§ 124.603 (2003).Google Scholar

See, e.g., Thompson v. Sun City Comm. Hosp., Inc., 688 P.2d 605 (Ariz. 1984).Google Scholar

See, e.g., Campbell v Mincey 413 F. Supp. 16 (N.D. Miss, 1975), aff'd 542 F. 2d 573 (5th Cir., 1976) (concluding neither a common law nor statutory duty of emergency care in Mississippi).Google Scholar

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EMTALA contains a non-preemption provision at 42 U.S.C.§1395dd(f)(“The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”)Google Scholar

See H.R. Rep. No. 99–241 (III), at 6–7, (1985), reprinted in 1986 U.S.C.C.A.N. 727–28 (noting that the statute creates only two federal causes of action — one by a patient for the failure to appropriately screen, stabilize, or properly transfer, and one by a hospital that has received an inappropriate transfer). See also Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996).Google Scholar

See U.S. Department of Health and Human Services, Medicare Medicaid State Operations Manual, Appendix V, Interpretive Guidelines and Investigative Procedures for Responsibilities of Medicare Participating Hospitals in Emergency Cases (May 1998): At 19.Google Scholar

Williams v. Birkeness, 34 F.3d 695, 697 (8th Cir. 1994). See also Baber v. Hosp. Corp. of America, 977 F.2d 872, 879 (4th Cir. 1992) and Power v. Arlington Hosp. Ass’n., 42 F.3d 851, 859 (4th Cir. 1994) (noting that the key question in determining whether a screening examination is appropriate is whether screening procedures are applied uniformly).Google Scholar

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See 68 Fed. Reg. 53234 (Sept. 9, 2003); 42 C.F.R.§ 489.24 (2003).Google Scholar

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See 5 U.S.C.§ 553 (2003); While interpretive rules and statements of general policy may be issued without going through formal notice-and-comment rulemaking procedures, 5 U.S.C.§ 553(b)(A), such exceptions are to be “narrowly construed and only reluctantly countenanced.” See Philadelphia Citizens in Action v. Schweiker, 669 .2d 877, 881 (3rd Cir. 1982). The line between interpretive and substantive rules is not always clear. Interpretive rules are “those which merely clarify or explain existing law or regulations.” Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983). Subtantive rules, however, “are those which effect a change in existing law or policy.” Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983). The CMS letter appears to be a substantive rule that changes EMTALA requirements based on the existence of a community-wide plan (something not contemplated by the statute, regulations or case law prior to the CMS letter). Substantive rules that change policy must adhere to the APA's formal notice-and-comment rulemaking procedures. See S. Cal. Aeria Advertisers' Ass’n v. FAA, 881 F.2d 672 (9th Cir. 1989).Google Scholar

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