EMTALA’S IMPACT ON PATIENTS’ RIGHTS IN COLORADO

224UNIVERSITY OF COLORADO LAW REVIEW[Vol. 89violate EMTALA. Part III compares the two solutions’ benefitsand drawbacks for both the patient and the ED. This Commentargues that the Pre-Screen Notice is needed to encouragethoughtful, quality care while reducing consumer costs andincreasing transparency.I.HISTORY AND PURPOSE OF EMTALAAs discussed in this Part, EMTALA’s purpose is apparentbased on the bill’s language, legislative history, and historicalcontext: Congress designed EMTALA to guarantee life-savingtreatment to all individuals with emergency medical conditionsregardless of their ability to pay. Under EMTALA, it is illegalfor EDs to turn patients away without first screening them foremergency conditions.18 Subsequent regulations implementingEMTALA have widened its scope and bolstered enforcement.19Currently, the safest route for EDs is to remain silent whennew arrivals inquire about treatment options and costs, for fearthat any answer will later be interpreted as snubbingpatients.20 This Part analyzes those regulations and providesthe formula for Part II’s conclusion that EMTALA does notstifle information exchange—neither HB 16-1374 nor the PreScreen Notice run afoul of EMTALA. However, to overcomeEDs’ resistance to change and to empower patients, the prescreen notice is required.A.A Response to Patient DumpingAs true today as it was when EMTALA was enacted threedecades ago, EDs are the primary providers of treatment andcare for the uninsured.21 The 1980s saw a significant increasein the number of uninsured patients, an increase which was18. See 42 U.S.C. § 1395dd.19. See infra Sections I.B, I.C.20. In a letter from Paul M. Bunge to the Honorable Peter W. Rodino, Jr.,Bunge warned that enforcement of EMTALA “can only be obtained through theretrospective evaluation of intimate medical diagnostic and treatment decisionswhich have heretofore been left exclusively to the judgment of the physician andhis patient. If [EMTALA] becomes law, however, those decisions will be subject tothe second opinion of federal prosecutors.” H.R. REP. NO. 99-241, pt. 3, at 16(1985).21. Karen Treiger, Note, Preventing Patient Dumping: Sharpening COBRA’sFangs, 61 N.Y.U. L. REV. 1186, 1187 (1986).

2018]EMTALA’S IMPACT ON PATIENTS’ RIGHTS225exacerbated by reduced government reimbursement rates tohealth care providers for Medicaid recipients.22 This forced theuninsured to use EDs for care, and as uncompensated carecosts mounted, hospitals closed their doors to the uninsuredthrough the act of “patient dumping.”23 Patient dumping is the“transfer of patients from one hospital to another primarily foreconomic reasons,”24 but more broadly it covers the rejection ofpatients based on their socioeconomic status, race, ethnicity, orappearance.25While patient dumping may manifest itself subtly, as whena clinical attendant ignores a patient for hours until they leave,often it is more blatant.26 For example, a hospitaladministrator lifted Terry Takewell, a young man sufferingfrom an emergency medical condition, out of the hospital’s bed,carried him to the parking lot and left him outside without hisshirt or shoes.27 Terry was uninsured and owed the hospitalfor previous treatment.28 He died the next day.29Heartbreaking stories like Terry’s filled The New York Timesand The Washington Post,30 provoking Congress to enact22. H.R. REP. NO. 100-531 at 7 (1988).23. Id. at 4 (citing a number of studies conducted between 1984 and 1986which found that the victims of dumping were most often the uninsured, followedby those on Medicaid and Medicare); see also Paul Taylor, Ailing, Uninsured andTurned Away, WASH. POST (June 30, 1985), 15fa-4527-94a7-ef47b6779e50/?utm term .f7635d6ddf37 [https://perma.cc/J3EWZTGD].24. H.R. REP. NO. 100-531 at 1.25. Id. at 3.26. Equal Access to Health Care: Patient Dumping Before the H. Subcomm. onHuman Res. and Intergovernmental Relations of the Comm. On Gov’t Operations,100th Cong. 2 (1987) (statement of Rep. Ted Weiss, Chairman, subcommittee onHuman Res. and Intergovernmental Relations) (“[Patient dumping] can be carriedout by transferring a patient to another hospital, refusing to treat them, orsubjecting them to long delays before the patient finally leaves.”).27. H.R. REP NO. 100-531 at 11.28. Id.29. Id.30. Treiger, supra note 21 at 1188 n.16 (citing Robert Reinhold, Treating anOutbreak of Patient Dumping in Texas, N.Y. TIMES (May 25, .html [https://perma.cc/46J7-RHDP]); Taylor, supra note23; Editorial, Health and Hot Potatoes, WASH. POST (Mar. 16, 1985), 4-aeaa-97bca2501648/?utm term .27c76d842eff [https://perma.cc/DZK8TGFW]; Editorial, Emergencies Need Open Hospitals, N.Y. TIMES (May 15, rgencies-need-open-

226UNIVERSITY OF COLORADO LAW REVIEW[Vol. 89EMTALA.31The purpose of EMTALA, said Senator Durenberger whenintroducing its framework to Congress, “is to send a clearsignal to the hospital community, public and private alike, thatall Americans, regardless of wealth or status, should know thata hospital will provide what services it can when they are trulyin physical distress.”32 EMTALA only ensures “an adequatefirst response to a medical crisis,”33 it does not contemplatecontinuing care, follow-up visits, or services beyond screeningand stabilization of an emergency condition. In short, SenatorDurenberger did not write EMTALA for today’s reality ofubiquitous free-standing EDs,34 booked primary carephysicians,35 or individuals seeking treatment at EDs for nonemergency conditions such as twisted ankles or minor cuts.36The Centers for Medicare and Medicaid Services (CMS)stresses compliance with EMTALA while simultaneouslyacknowledging that individuals should be treated at theappropriate care site.37 These are not mutually exclusive, butEDs skew towards an overly restrictive interpretation ofEMTALA. Violations by EDs carry strict penalties, includingfines and expulsion from Medicare.38hospitals.html [https://perma.cc/53B6-H5AR].31. EMTALA was enacted through an amendment to the ConsolidatedOmnibus Budget Reconciliation Act of 1985 (COBRA) in April 1986, and thus issometimes also referred to as the COBRA anti-dumping law. Medicare andMedicaid Budget Reconciliation Amendments of 1985, Pub. L. No. 99-272, sec.9121, § 1867, 100 Stat. 151, 164–167 (1986) (codified at 42 U.S.C. § 1395dd). Forthe regulations implementing EMTALA, promulgated by the Centers for Medicareand Medicaid Services (CMS), of the Department of Health and Human Services(HHS), see 42 C.F.R. § 489.24 (2016).32. 131 CONG. REC. 28,568 (1985).33. Id. (statement of Sen. Dole).34. Olinger, supra note 6.35. It takes, on average, 29 days to set up an appointment with a family carephysician, compared to 19.5 days in 2014. Nelson D. Schwartz, The Doctor Is In.Co-Pay? 40,000, N.Y. TIMES (June 3, 2017), y/high-end-medical-care.html? r 0 [https://perma.cc/Q2QHYAG2] (citing MERRITT HAWKINS, 2017 SURVEY OF PHYSICIAN APPOINTMENTWAIT TIMES AND MEDICARE AND MEDICAID ACCEPTANCE RATES (2017)).36. COLO. HEALTH INST., supra note 2. For other non-life threatening medicalconditions, and guidance as to where to seek treatment, see When to Use theEmergency Room – Adult, MEDLINEPLUS, 00593.htm [https://perma.cc/C4AR-8XBF].37. CMS, 68 Fed. Reg. 53,222, 53,224 (Sept. 9, 2003) (“Reports ofovercrowding are common in many parts of the country.”).38. See infra Section I.C.

2018]B.EMTALA’S IMPACT ON PATIENTS’ RIGHTS227An ED’s EMTALA ObligationsSince EMTALA’s enactment, CMS has supplementedEMTALA with regulations and interpretive guidance, wideningits scope.39 This Section details an ED’s obligations underEMTALA by following an individual’s journey through the ED.1. Arrival at the EDIn the early afternoon, Jane Doe entered the main door ofBanner Fort Collins Medical Center in Fort Collins, Colorado.40She cut her hand on a door the previous night.41 Though shehad applied a large amount of Super Glue over the twocentimeter cut before seeking help, the wound was stillbleeding.42EMTALA states an ED’s obligations begin when a patientrequests treatment: a medical screening exam is required “ifany individual . . . comes to the emergency department and arequest is made on the individual’s behalf for examination ortreatment for a medical condition.”43 Yet, CMS has construedEMTALA to require the registration of all patients presenting,regardless of request.44 Under the agency’s regulations,EMTALA obligations begin when the individual enters ontoeither hospital property or a hospital’s ED, at which point arequest may be implied.45 An ED’s EMTALA obligations beginas soon as a patient enters hospital property if a “prudent39. See, e.g., CTRS. FOR MEDICARE AND MEDICAID SERVS., 100-07 STATEOPERATIONS MANUAL app. V (2010), ce/Manuals/downloads/som107ap v emerg.pdf[https://perma.cc/S6RV-VHQT].40. Full Text Statements of Deficiencies Hospital Surveys, Related Links,Hospitals, CTRS. FOR MEDICARE AND MEDICAID SERVS., EVENT ID Hospitals.html (last visited June 5, 2017) [https://perma.cc/2VTM-9P4K] [hereinafter Hospital Surveys]. In this action (the report omits thepatient’s real name), Office of Inspector General (OIG) inspectors found that staffdiscussed discounted treatment options with a patient before registering thatpatient in the ED, and thus before a medical screening examination. Id. OIGstated the ED in this instance violated EMTALA because it delayed treatmentand discouraged the individual from receiving care. Id.41. Id.42. Id.43. 42 U.S.C. § 1395dd(a) (2012).44. See 42 C.F.R. § 489.24 (2016).45. 42 C.F.R. § 489.24.

228UNIVERSITY OF COLORADO LAW REVIEW[Vol. 89layperson,” observing that patient’s behavior and appearance,would believe that the patient has an emergency medicalcondition.46 For patients who arrive at the ED and not throughanother door at the hospital, the threshold is even lower:EMTALA requires that ED staff register and screen anypatient who arrives at the ED and appears to have a medicalcondition.472. Patient RegistrationIf staff thought Jane Doe had an emergency medicalcondition, then per EMTALA, they would have immediatelyushered Doe to the ED to register and receive a screeningexamination, which is designed to uncover potential emergencymedical conditions.48 Once in registration, ED staff would delayproactively discussing any registration forms that wouldrequire Doe to disclose her insurance status or ability to payuntil ED staff screened and stabilized her.49 The ED �sdemographics and emergency contact; however, the inquirymust not discourage Doe from remaining to receive care, nordelay the screening.50 EMTALA does not define whatconstitutes a “delay.”513. Inquiries Regarding Payment or Insurance StatusUpon entering the facility, Jane Doe expressed concernabout the cost of an ED visit.52 Staff provided Doe withinformational brochures, contacted a financial employee byphone for assistance, and worked with her to successfullyobtain discounted health care before they registered her withthe ED.53 During this time she continued to bleed.54 At 4:1946. 42 C.F.R. § 489.24(b)(2).47. § 489.24(b)(1).48. 42 U.S.C. § 1395dd(a), (h).49. OIG/HCFA Special Advisory Bulletin on the Patient Anti-DumpingStatute, 64 Fed. Reg. 61,353, 61,355 (Nov. 10, 1999) [hereinafter Special AdvisoryBulletin]; see 42 U.S.C. § 1395dd(h).50. Special Advisory Bulletin, 64 Fed. Reg. at 61,355.51. See 42 U.S.C. § 1395dd.52. Hospital Surveys, supra note 40.53. Id.54. Id.

2018]EMTALA’S IMPACT ON PATIENTS’ RIGHTS229p.m., “quite a while” after she entered the facility, Doeregistered with the ED.55 But did the ED discourage or delayscreening or treatment in light of her unprompted concernabout the cost?The statute itself is silent on whether an ED can bepenalized for a delay resulting from an inquiry like Doe’s.56EMTALA only prohibits delay “to inquire about the individual’smethod of payment or insurance status.”57 The ED is thesubject, and the plain meaning of “inquire” suggests that thestatute only explicitly prohibits delay resulting from EDsasking about payment and insurance. If left only with the textof the statute itself, an ED may wonder precisely whatinformation it may provide to Doe. If Doe inquires as to hertreatment options and costs, may an ED then ask about herprice sensitivity and insurance?Given EMTALA’s silence, HHS has provided someguidance to EDs concerning patients, like Doe, who personallyinquire about treatment options and costs.58 While HHS haseschewed bright-line rules, its guidance allows for more candiddiscussions with curious patients than is currently common inthe industry.59The agency explicitly denies that its guidance preventsEDs from providing patients with full disclosure.60 Per theagency, were Doe to question her financial responsibility at theED, only knowledgeable staff trained on EMTALA and55. Id.56. See 42 U.S.C. § 1395dd.57. Id. § 1395dd(h) (emphasis added).58. In 1998, HHS, specifically the Office of Inspector General (OIG) and theHealth Care Financing Administration (HCFA), solicited comments on a proposedSpecial Advisory Bulletin. The Bulletin addressed EMTALA’s application toindividuals insured through managed care plans, which often required preapproval for coverage, even in emergencies. Notice of Proposed Special AdvisoryBulletin on the Patient Anti-Dumping Statute, 63 Fed. Reg. 67,486, 67,486–87(proposed Dec. 7, 1998). Thus, in 1998, some EDs contacted patients’ primary carephysicians or plans before screening and treatment. Id. Otherwise, the patientwas forced to pay the cost out-of-pocket, a risky proposition for the hospital. Id.OIG was concerned that these inquiries delayed screening, or otherwisediscouraged patients from seeking treatment. Id. Of the over 150 comments toHHS, many concerned payment issues, particularly how EDs should handlepatient inquiries and how EDs might notify patients of their paymentresponsibility. Special Advisory Bulletin, 64 Fed. Reg. 61,353, 61,354 (Nov. 10,1999).59. See Special Advisory Bulletin, 64 Fed. Reg. at 61,355–59.60. See id.

230UNIVERSITY OF COLORADO LAW REVIEW[Vol. 89financial liability should respond.61 Before any response, staffmust reassure Doe that their facility is committed to providingher with a screening and necessary treatment to stabilize anyemergency medical condition.62 Finally, staff should encourageDoe to defer discussions until after ED staff have screened andstabilized her.63 Despite these caveats, trained staff shouldanswer Doe’s inquiries “as fully as possible.”644. Screening for an Emergency Medical ConditionThe statute only provides that Doe’s screening be“appropriate,” within the capability of the ED and sufficient toidentify an emergency medical condition.65 Courts havestruggled to define “appropriate” in the context of EMTALA,with one court calling it “one of the most wonderful weaselwords in the dictionary.”66The screening process to determine whether Jane Doe hasan emergency medical condition can be tailored to hersymptoms and medical history so long as the screening isapplied uniformly to any other patient presenting in thatmanner.67 Screenings do not need to be equallycomprehensive.68 They cannot, however, be influenced by thediscounted cost Doe negotiated prior to screening.An “emergency medical condition” is defined as:[A] medical condition manifesting itself by acute symptomsof sufficient severity (including severe pain . . . ) such thatthe absence of immediate medical attention couldreasonably be expected to result in—(i) [p]lacing the health of the individual (or, with respect toa pregnant woman, the health of the woman or her unbornchild) in serious jeopardy,61. See id.62. See id. at 61,359.63. See id. at 61,355–59.64. See id. at 61,355.65. 42 U.S.C. § 1395dd(a).66. Cleland v. Bronson Health Care Grp., Inc., 917 F.2d 266, 271 (6th Cir.1990).67. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 879 (4th Cir. 1992); see alsoCTRS. FOR MEDICARE AND MEDICAID SERVS., supra note 39, at 46 (interpreting 42C.F.R. § 489.24(c)).68. CTRS. FOR MEDICARE AND MEDICAID SERVS., supra note 39, at 46.

2018]EMTALA’S IMPACT ON PATIENTS’ RIGHTS231(ii) [s]erious impairment to bodily functions, or(iii) [s]erious dysfunction of any bodily organ or part . . . .69The definition has a narrow temporal scope, pertainingonly to present symptoms requiring immediate medicalattention to avoid serious harm.If it is clear Doe does not have an emergency medicalcondition, a hospital may have a registered nurse or similarpractitioner conduct the screening exam, so long as it is withintheir scope of practice and within the ED’s protocol.70 If the EDwere to determine that Doe has an emergency medicalcondition, the ED must stabilize her within the facility’sresources.71The ED may not transfer Doe to another hospital beforeadministering stab

IN COLORADO EMERGENCY ROOMS JACK VIHSTADT During the Reagan Administration, Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) to crack down on hospital emergency departments (EDs) that were refusing to treat poor patients. The Act prohibited EDs from