United States: EMTALA As A Basis For A Qui Tam Case?

Shannon Britton Hartsfield is a Partner in Holland & Knight's Tallahassee office

The Emergency Medical Treatment & Labor Act (EMTALA) requires a hospital with an emergency department (ED) to provide "an appropriate medical screening examination" when an individual comes to the ED and a request is made on behalf of the individual for examination or treatment for a medical condition. The hospital may not transfer the patient except in very specific circumstances. The hospital may not delay providing the screening or further stabilizing treatment in order to determine the patient's insurance status.

As recently reported by Matthew Phifer in Bloomberg Law (subscription required), two whistleblower cases are pending in Mississippi that allege that EMTALA violations can create False Claims Act (FCA) liability. In one of the cases, United States ex rel, Vanderlan v. Jackson HMA, LLC, in the U.S. District Court for the Southern District of Mississippi, Northern Division, case number 3:15-cv-00767-DEJ-FKB, a physician argued that compliance with EMTALA is a "condition of receiving payments from Medicare and Medicaid." The physician alleged that the hospital failed to comply with EMTALA, so each Medicare or Medicaid claim filed during such period of noncompliance is a false claim. In its motion to dismiss, the hospital argued that "EMTALA violations are not a valid, recognized basis for FCA claims, as they do not result in false or misleading representations in the hospital's submitted claims and they are not material to the government's payment decision." Additionally, the hospital asserted that the complaint "identifies no specific certification of EMTALA compliance falsely submitted to the government."

Failure to comply with EMTALA can result in significant penalties imposed by the government. It remains to be seen whether such failure could also result in additional liability under the FCA.

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