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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division

 

IN THE CASE OF  


SUBJECT:

St. Anthony Hospital,

Petitioner,

DATE: June 5, 2000
                                          
             - v -

 

The Inspector General

 

Civil Remedies CR620
App. Div. Docket No. A-2000-12
Decision No. 1728
DECISION
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FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

St. Anthony Hospital (St. Anthony) appealed, and the Inspector General (I.G.) cross-appealed, a decision by Administrative Law Judge Steven T. Kessel imposing a civil money penalty (CMP) on St. Anthony based on section 1867(g) of the Social Security Act (Act), 42 U.S.C. § 1395dd(g). St. Anthony Hospital, DAB CR620 (1999) (ALJ Decision). The ALJ concluded that the I.G. proved by a preponderance of the evidence that St. Anthony violated section 1867(g) on April 8, 1995. Section 1867(g) provides that a hospital that participates in the Medicare program and that has specialized capabilities or facilities shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.

As detailed below, St. Anthony took exception to each of the thirteen factual findings and conclusions of law (FFCLs) in the ALJ Decision, submitting that the ALJ erroneously interpreted the Act, ignored governing case law and established principles of statutory construction, and made numerous errors in his factual findings. St. Anthony also argued that the ALJ was prejudiced and biased, resulting in an unfair hearing. In her cross-appeal, the I.G. submitted that the ALJ erred in assessing the amount of the CMP that should be imposed against St. Anthony.

The role of the Departmental Appeals Board (DAB or Board) under the governing regulations is: 1) to determine whether the ALJ erred in resolving any disputed legal issue; and 2) to evaluate whether the ALJ's challenged findings of fact are supported by substantial evidence on the whole record. 42 C.F.R. § 1005.21(h). Further, section 1005.21(g) of the regulations provides that the DAB may decline to review the case, or may affirm, increase, reduce, reverse or remand any penalty, assessment or exclusion determined by the ALJ.

We note that St. Anthony specifically requested in its appeal brief that the DAB dismiss this case with prejudice and with no adverse findings against St. Anthony or, in the alternative, that St. Anthony obtain de novo review and that the DAB "enter findings consistent with the evidence and law." St. Anthony Br. at 274. St. Anthony appears to have misunderstood our authority. While the Board hears appeals of ALJ decisions involving the imposition of CMPs based on section 1867 of the Act, we are neither authorized to dismiss, nor empowered to conduct a de novo review. Rather, as reflected in the regulations and explained in detail at Section III of this decision, under the governing standard of review, we will determine whether the ALJ's factual findings are supported by substantial evidence on the whole record and whether the ALJ's legal conclusions are erroneous.

Applying these standards, we affirm the ALJ Decision, with modifications. As detailed below, we sustain FFCLs 2-10, 11.b.-d., and 12 because they are supported by substantial evidence on the record as a whole and do not contain errors of law. We also conclude that the ALJ inadequately described the preconditions for applying section 1867(g) in FFCL 1, and that he erroneously determined in FFCL 11.a. that it was not relevant whether the patient's medical condition was stabilized prior to transfer. Accordingly, we modify FFCL 1 and we delete FFCL 11.a., although we conclude that these errors were harmless in light of the ALJ's underlying factual findings. With respect to the amount of the CMP assessed by the ALJ in FFCL 13 ($25,000), we conclude that while the ALJ properly recognized that remediation may lawfully be considered as a mitigating factor in setting the CMP amount, the remedial acts cited by the ALJ were taken by St. Anthony in order to avoid termination from the Medicare program, rather than due to a resolution on St. Anthony's part to change to improve its compliance with the law. Accordingly, we modify FFCL 13 to set a new amount of $35,000 for the CMP. Finally, we conclude that St. Anthony's charges of ALJ prejudice and bias are unsubstantiated.

I. Factual Summary

The following summary is intended to provide a general framework for understanding this decision.

On April 8, 1995, the patient at issue, R.M.,(1) was injured in a single-car automobile accident. R.M. was brought by ground ambulance to the emergency room of Shawnee Regional Hospital (Shawnee), in Shawnee, Oklahoma, where he was examined by Dr. Kent Thomas. Upon examination, Dr. Thomas determined that R.M. had sustained injuries that required services beyond those that could be provided at Shawnee, and Dr. Thomas arranged for a transfer of R.M. by ground ambulance to University Hospital (University) in Oklahoma City.

At approximately 6:50 p.m., Dr. Carl Spengler arrived at Shawnee, where he was scheduled to begin work in the emergency room at 7:00 p.m. As ambulance attendants prepared to transport R.M., Dr. Thomas, who was leaving his shift, gave Dr. Spengler an oral report about the patient. According to Dr. Spengler's testimony, Dr. Thomas reported that R.M. had been involved in a single-car rollover and had been suspended, upside down in his seat belt, for 15 or 20 minutes. Tr. at 344. Dr. Spengler further testified that Dr. Thomas reported that R.M. had a broken back and broken ribs, and that "his major problem was he wasn't moving his legs." Id.

After R.M. had been boarded onto the ground ambulance to be taken to University, an ambulance attendant returned to the Shawnee emergency room to report concerns about R.M.'s medical status. After briefly observing R.M. in the ambulance, Dr. Spengler instructed that R.M. be brought back into the Shawnee emergency room. Dr. Spengler testified that he determined on further examination that R.M. was suffering from an aortic injury. Id. at 346. Dr. Spengler then called an air ambulance service, Medi-Flight, to come to Shawnee to transfer R.M. to University by helicopter. Dr. Spengler also testified that he called the University emergency room to notify physicians there that R.M. was suffering from an aortic injury. Id. at 352-53.

Thereafter, the Medi-Flight helicopter arrived at Shawnee, and Mr. Aaron Wade, a Medi-Flight attendant, came into the Shawnee emergency room and began to prepare R.M. for transport to University. Before R.M. was moved onto the helicopter, Dr. Spengler received a call from University, informing him that the hospital would no longer accept R.M. The I.G. alleged that, after Dr. Spengler received this news, he began to make a series of phone calls, with the assistance of Nurse Kristi Williamson, to find a vascular surgeon and hospital that would provide the surgery that R.M. required.

One of those calls was placed to St. Anthony, and was initially received by a St. Anthony emergency room nurse, Ann Burkle. The call was then transferred to Dr. Billy Joe Buffington, the St. Anthony emergency room physician on the night of April 8, 1995. Dr. Buffington spoke directly with Dr. Spengler. Following that conversation, Dr. Buffington phoned and spoke with St. Anthony's on-call thoracic surgeon, Dr. Scott Lucas. Dr. Lucas, in turn, placed a call to Shawnee and spoke directly with Dr. Spengler. The I.G. has alleged that during Dr. Spengler's conversations with Drs. Buffington and Lucas, Dr. Spengler requested St. Anthony to accept the transfer of R.M. The I.G. further has alleged that St. Anthony refused to accept the transfer request.

Ultimately, R.M. was transferred to Presbyterian Hospital in Oklahoma City, where an aortography revealed that he was suffering from a traumatic occlusion of the abdominal aorta. R.M. was taken immediately to surgery for an attempted revascularization of his lower extremities. R.M.'s condition deteriorated during the next several days, and, following a bilateral, above-the-knee amputation, he died on April 11, 1995.

II. Applicable Statutes, Regulations and Legislative History

The Emergency Medical Treatment and Labor Act (EMTALA),(2) codified at section 1867 of the Act, imposes a series of requirements on hospitals that participate in Medicare and have emergency departments or render emergency care. Congress enacted EMTALA under section 9121 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Public Law No. 99-272, 100 Stat. 164-167, in response to reports that hospital emergency rooms were refusing to accept or treat uninsured patients with emergency conditions and were transferring patients in an unstable condition, sometimes without the consent of the receiving hospital. H.R. Rep. No. 99-241, 99th Cong., 1st Sess. 27 (1985). (This practice is often called "patient dumping," and EMTALA is frequently referred to as the "Patient Anti-Dumping Act.") The Secretary of the Department of Health and Human Services (Secretary) has implemented EMTALA's requirements through regulations at 42 C.F.R. §§ 489.20, 489.24, 489.53 and 42 C.F.R. Part 1003.

As originally enacted, EMTALA required hospitals to:

1. Provide to any individual who comes to the emergency department and requests treatment an appropriate medical screening examination in order to determine whether an emergency medical condition exists. (Section 1867(a)).
2. Provide stabilizing treatment to any individual with an emergency medical condition or woman in active labor or, if the hospital cannot stabilize the medical condition, appropriately transfer(3) the individual. (Section 1867(b)).
3. Not transfer an unstable patient unless the individual requests transfer to another medical facility in writing or a physician certifies that the medical benefits reasonably expected from the transfer outweigh the risks of transfer, and the hospital arranges for an "appropriate transfer." (Section 1867(c)).

Section 1867(c)(2) defines an "appropriate transfer" as one in which: 1) the transferring hospital provides medical treatment within its capacity to minimize the risks to the individual's health; 2) the receiving facility has available space and qualified personnel to treat the patient, and has agreed to accept the transfer; 3) the transferring hospital sends to the receiving facility all medical records available at the time of the transfer; 4) the transfer is effected through qualified personnel and transportation equipment. The regulations implementing the screening, stabilization and transfer requirements of the statute are set forth at 42 C.F.R. (a), 489.24(c) and 489.24(d).

The 1985 legislation further established enforcement provisions for violations of EMTALA's substantive requirements at subsection 1867(d). Subsection 1867(d)(1)(A) currently provides that a hospital that negligently violates an EMTALA requirement is subject to a civil money penalty of not more than $50,000 for each violation. Subsection 1867(d)(1)(A) also states that "the provisions of section 1128A [governing the imposition of civil monetary penalties](other than subsections (a) and (b)) shall apply to a civil money penalty under [subparagraph (d)] in the same manner as such provisions apply with respect to a penalty or proceeding under section 1128A(a)."

Section 1867(e) provides definitions of certain terms used in EMTALA, including:

(1) The term "emergency medical condition" means--

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in--
(i) placing the health of the individual . . . in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part;

* * *

(2) The term "participating hospital" means a hospital that has entered into a provider agreement under section [1866 of the Act].
(3)(A) The term "to stabilize" means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility . . . .
(B) The term "stabilized" means, with respect to an emergency medical condition described in paragraph (1)(A), that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility . . . .

The EMTALA regulations include definitions at section 489.24(b) that parallel the statutory definitions quoted above. In addition the regulations define "capacity" to mean --

the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital's past practices of accommodating additional patients in excess of its occupancy limits.

Under the Omnibus Budget Reconciliation Act of 1989 (OBRA 89), Pub. L. No. 101-239, Congress amended EMTALA to include, among other things, a separate provision designed to prevent "reverse dumping" -- the practice of large, well-equipped medical centers refusing to accept uninsured transfer patients from smaller hospitals that are unequipped to provide the level of care required by the patient. See, e.g., H.R. Rep. No. 531, 100th Cong., 2d Sess. at 17-21 (1988). Section 1867(g) provides:

(g) Nondiscrimination

A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.

Implementing section 1867(g) of the Act, 42 C.F.R. 489.24(e) reads:

Recipient hospital responsibilities. A participating hospital that has specialized capabilities or facilities (including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers) may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual.

III. Standard of Review

Under 42 C.F.R. § 1005.21(h), our standard of review on a disputed issue of fact is whether the ALJ decision is supported by substantial evidence on the whole record. The standard of review on a disputed issue of law is whether the decision is erroneous.

Federal courts have long recognized that substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Under the substantial evidence standard, the reviewer must examine the record as a whole and take into account whatever in the record fairly detracts from the weight of the decision below. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The reviewer does not, however, reweigh the evidence nor substitute his or her judgment for that of the initial decision-maker. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Thus, the reviewer must not displace a "choice between two fairly conflicting views," even though a different choice could justifiably have been made if the matter had been before the reviewer de novo. Universal Camera, 340 U.S. at 488. The reviewer must, however, set aside the initial conclusions when he or she "cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [initial decision-maker's] view." Id.

When the Board reviews an ALJ decision under the substantial evidence standard, it generally accords considerable deference to the ALJ's assessments of witness credibility because the ALJ has the best opportunity to observe the witnesses and weigh the evidence. See, e.g., Samuel T. Bowen, DAB No. 1720 at 2 (2000); Barry D. Garfinkel, DAB No. 1572 at 6 (1996). See also Albertson's, Inc. v. NLRB, 161 F.3d 1231, 1236 n.6 (10th Cir. 1998). The ALJ's assessments, however, must be supported by reliable evidence in the record and his or her inferences must be reasonably drawn from that evidence. Under the substantial evidence standard, the Board is not required to treat every inference an ALJ draws from the evidence as per se reasonable, nor must it affirm any finding as to which there is merely some supportive evidence in the record.

As noted in prior decisions, the Board has also held that an ALJ need not "cite to everything in the record which supports" the findings, but that the "evidence that the ALJ does cite must support the findings made." Reconsideration of Wesley Hal Livingston and Shoals Medical Equipment and Supply Co., Inc., DAB No. 1406 at 3 (1993). "Moreover, if there is evidence in the record which directly contradicts the evidence cited by the ALJ (or which might render inferences otherwise drawn from that evidence unreasonable), the ALJ should not disregard that evidence without explaining why." Id. at 3-4 (citations omitted).

V. Conclusion

For the reasons discussed above, we affirm the ALJ's determination that St. Anthony violated section 1867(g) of the Act on April 8, 1995. We further conclude that the ALJ erred in assessing the appropriate CMP amount against St. Anthony, and we revise that amount to $35,000. Accordingly, we sustain each and every one of the ALJ's FFCLs, except for FFCL 11.a., which we delete, and FFCLs 1 and 13, which we modify as discussed above.

ANALYSIS
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A. Introduction

This case involves the question whether St. Anthony violated section 1867(g) of the Act, and if so, in what amount a CMP should be imposed.(4) Below, we address whether the ALJ erred in analyzing any legal issue disputed and whether substantial evidence supports the ALJ's determination that each element of section 1867(g) was met. We then address whether the ALJ properly determined that a CMP of $25,000 should be imposed in this case. Finally, we consider St. Anthony's allegations of ALJ bias and prejudice.

We address the parties' exceptions in the context of analyzing whether the ALJ properly determined that each element of a section 1867(g) violation was met and evaluating the ALJ's decision to impose a CMP of $25,000. In reviewing this case, we have considered each and every argument presented by the parties. Although particular issues may not be discussed in detail in this decision, we have nevertheless considered all of the points in the parties' briefs in reaching the conclusions set forth here.

At the outset, however, we note that central to St. Anthony's appeal was its contention that the ALJ failed to consider and apply the EMTALA statute as a whole. Specifically, St. Anthony submitted that the ALJ erred as a matter of law in construing section 1867(g) in isolation, disregarding the fundamental purpose of EMTALA, to prevent patient dumping, as reflected in sections 1867(a)-(c) of the Act. St. Anthony Br. at 64-65, 72-75, 80-81; St. Anthony Reply Br. at 1-8. For example, St. Anthony stated in its appeal brief that, in light of how the term "appropriate transfer" is defined at section 1867(c)(2) of the Act, "the ALJ should have analyzed whether the transferring hospital (Dr. Spengler) provided RM treatment within its capacity" and that "the ALJ should have applied subsections (a) and (b) in his analysis." St. Anthony Br. at 71-72, 160-61. By failing to determine whether all of the requirements at sections 1867(a)-(c) of EMTALA were met with respect to the care and treatment provided by the transferring hospital and physician, St. Anthony contended, the ALJ contravened the fundamental rules of statutory construction that a court must give full force and effect to each section of a statute and must construe provisions of a statute to be harmonious with each other. Id. at 80, 162. St. Anthony also argued that the ALJ erroneously disregarded "the appropriate case law that modified the Act." Id. at 64.

St. Anthony's argument mischaracterizes the ALJ's analysis and distorts the rules of statutory construction on which it relies. As reflected in his decision, the ALJ did not apply 1867(g) in strict isolation, without regard to other sections of EMTALA. Rather, the ALJ looked to other provisions in the Act and regulations to the extent he found those sections relevant. For example, in determining whether the "appropriate transfer" criterion of section 1867(g) had been met, the ALJ looked for guidance as to how the term "appropriate transfer" is defined under section 1867(c)(2), even though Congress defined the term in the context of the provisions governing transfers from hospitals of non-stabilized patients, and even though not all of the elements of the definition are apposite when considered in the context of a potential violation of section 1867(g). ALJ Decision at 20-23.

Further, St. Anthony misconstrues the rules of statutory construction that 1) a statute must be read as a whole and 2) a statute must be interpreted such that each part has meaning, to mean that, in evaluating one type of EMTALA violation, an adjudicator must determine whether every other possible type of EMTALA violation took place in the underlying matter, even though this would involve applying separate sections of the Act to entities other than the hospital charged by the I.G. We do not question that under the "whole statute" rule of interpretation, subsection (g) should not be read in isolation, but should be construed in connection with the other sections of EMTALA, so as to produce a harmonious whole. See Sutherland Stat. Const. § 46.05 at 103 (5th ed.). Further, each section of the statute should be read such that each provision has meaning and none is rendered inoperative. See id. at § 46.06. These fundamental principles, however, do not stand for the sweeping proposition asserted by St. Anthony. We also have found nothing in the language of the Act, its legislative history, prior interpretations of the Secretary or the host of federal court decisions cited by St. Anthony to suggest that in a case concerning an alleged section 1867(g) violation, an ALJ must determine whether every other EMTALA requirement was met by the other hospitals and physicians that were involved in the alleged reverse-dumping violation.(5)

We further note that in its reply brief, St. Anthony relied in particular on the decision of the Tenth Circuit Court of Appeals in Urban v. King, 43 F.3d 523 (10th Cir. 1994), to support its argument. St. Anthony wrote:

The OIG and the ALJ have erred in their legal analysis by isolating subsection (g) of the Act. The Tenth Circuit Court of Appeals has addressed this very issue of statutory construction under the Act. Urban v. King, 43 F.3d 523, 526 (10th Cir. 1994) . . . .

The Tenth Circuit Court of Appeals has already ruled that the Act must be applied in its totality and that a finding based on one (1) isolated subsection is an incorrect application of the Act.

St. Anthony Reply Br. at 1-2.

We see no inconsistency whatsoever with the ALJ's analysis of section 1867(g) and Urban v. King. That case involved the interpretation of section 1867(c) of EMTALA, which requires a hospital to meet certain conditions if it transfers an individual with an unstabilized emergency medical condition. The Urban court faced the question whether the Act requires a hospital to have actual knowledge of an individual's emergency medical condition before liability under section 1867(c) may be imposed against it. The plaintiff in Urban argued that section 1867(c) should be read in strict isolation, which would lead to the conclusion that a plaintiff need not show that a hospital had actual knowledge that the individual had an emergency medical condition to prevail in a section 1867(c) claim. Upholding the district court's grant of summary judgment, the Tenth Circuit Court of Appeals joined three other circuits in holding that a "plaintiff must prove the hospital had actual knowledge of the individual's unstabilized emergency medical condition to succeed with a claim under § [1867(c)]." 43 F.3d at 526. Rejecting the proposition that each subsection of EMTALA "must be interpreted independently of the others," the court concluded that "the application of subsection (c) depends on the language of 1867(b)," which requires a hospital to provide stabilizing treatment to an individual once it determines that an emergency medical condition exists. Id.

Notwithstanding its conclusion that sections 1867(b) and (c) were "explicitly linked," the Urban court wrote that plaintiffs need not show a violation of 1867(a), the emergency room appropriate screening requirement, to succeed in a section 1867(c) action. Id. Thus, contrary to St. Anthony's contention, Urban did not involve whether section 1867(g) may be read in isolation. Furthermore, the Urban court did not hold that, when a hospital is charged with violating any single section of EMTALA, the adjudicator must find the Act applicable in its totality. Indeed, the court plainly acknowledged that it was not necessary to show a violation of section 1867(a) to succeed in a case involving section 1867(c). See also Abercrombie v. Osteopathic Hospital Founders Ass'n, 950 F.2d 676 (10th Cir. 1991). Borrowing from the Urban court's analytical approach, the question whether a section 1867(g) case requires application of any other EMTALA provision depends upon the extent to which section 1867(g) is, or is not, explicitly linked to the other sections of the statute. We address this question, as well as the parties' other arguments on appeal, below.

B. Evaluation of FFCLs and Exceptions

(1) The Preconditions for Applying Section 1867(g)

FFCL 1. It was medically necessary to transfer R.M. on the evening of April 8, 1995 from Shawnee Regional Hospital to a hospital that had the specialized capabilities or facilities to care for R.M.'s life-threatening injury.

FFCL 2. On the evening of April 8, 1995 Dr. Spengler determined that R.M. needed to be transferred from Shawnee Regional Hospital to a hospital that had the specialized capabilities or facilities to care for R.M.'s life-threatening injury.

FFCL 11.a. It is not relevant whether R.M.'s medical condition was "stabilized" prior to his transfer to another hospital.

As reflected in FFCL 1, the ALJ essentially determined that, before considering whether St. Anthony violated section 1867(g), it was necessary to conclude that a transfer of the patient was "medically necessary" in view of the patient's medical condition and the transferring hospital's limited capabilities. With respect to the patient's medical condition, the ALJ further found at FFCL 11.a. that while, as a matter of law, it was not relevant whether the patient was "stabilized" within the meaning of the Act at the time of the transfer request, R.M., in fact, was not stable:"The transfer of R.M. was necessary in large part precisely because R.M. was not medically stable while at Shawnee Regional Hospital. Tr. at 106, 107, 611, 612. He could not be made medically stable nor could he be stabilized while he was there." ALJ Decision at 27.

Excepting to FFCLs 1 and 11.a., St. Anthony submitted that this case should be dismissed because EMTALA does not regulate transfers of individuals who have been stabilized within the meaning of the Act, and R.M. was stabilized prior to transfer. Thus, St. Anthony argued that: 1) the ALJ erred as a matter of law in concluding that it was not relevant whether R.M.'s medical condition was stabilized; and 2) substantial evidence does not support the ALJ's finding that, regardless of whether section 1867(g) applies only to unstabilized individuals, R.M. was not stabilized.

St. Anthony contended that "all of the evidence in this case proves that RM was stabilized for the purpose of transfer . . . ." St. Anthony Br. at 88. Responding to the ALJ's conclusion that whether R.M. was stabilized was irrelevant, St. Anthony wrote:"The ALJ just side stepped [the] facts." Id. at 91. St. Anthony also contended that EMTALA's definition of the term "stabilized" should not be equated with the term "medically stable," as the ALJ implied. ALJ Decision at 27; St. Anthony Br. at 91-92. St. Anthony additionally argued that, to judge whether a patient was stabilized, an adjudicator should not rely on hindsight, but should consider whether, at the time of the transfer, "in the hospital's opinion, the patient was stable." St. Anthony Br. at 84, citing Cleland v. Bronson Healthcare Group, Inc., 917 F.2d 266, 271 (6th Cir. 1990); and Broderson v. Sioux Valley Memorial Hospital, 902 F.Supp. 931 (N.D. Iowa 1995). St. Anthony also submitted that, under applicable case law, stabilization does not require definitive treatment of an emergency medical condition.

To determine whether the ALJ erred in concluding that it was not relevant whether R.M. was stabilized prior to his transfer, we look first to the text of the statute and regulations. While section 1867(g) of the Act and 42 C.F.R. § 489.24(e) state that they apply in the case of "an individual who requires . . . specialized capabilities or facilities," neither section 1867(g) nor section 489.24(e) indicates whether a patient must be unstable or not have been stabilized within the meaning of the Act to find that a reverse-dumping violation took place. Further, a review of the language of the other sections of the statute and the legislative history reveals no further guidance as to whether section 1867(g), enacted after the original anti-dumping provisions to address the separate problem of "reverse-dumping," applies only where a patient has not been stabilized.

In addition, there is little case law addressing section 1867(g).(6) We have thoroughly reviewed the decisions on which St. Anthony relied to support its argument that "the courts have uniformly held that EMTALA does not apply when the patient's condition was stabilized to the point that a deterioration was not likely to result during the transfer."(7) St. Anthony Br. at 67. While these cases support the proposition that if a patient was stabilized, a transferring hospital cannot be found to have violated EMTALA's transfer provisions, we agree with the ALJ that they simply do not address whether a hospital can be held liable under section 1867(g) if the patient was stabilized.

While we therefore concur in the ALJ's conclusion that neither the language of EMTALA nor case law resolves the question St. Anthony raised in its first exception, the Secretary expressly addressed the issue in the Federal Register preamble to the interim final rule implementing EMTALA on June 22, 1994. 59 Fed. Reg. 32,086. At that time, the Secretary wrote:

In determining whether new §489.24(e) applies, we will assess whether the individual required the recipient hospital's specialized capabilities or facilities and if the hospital had the capacity to treat the individual. The recipient hospital with specialized capabilities or facilities has an obligation under section 1867(g) of the Act to accept a transfer if the individual has an unstabilized emergency medical condition and if the hospital has the capacity to treat the individual. If a hospital desires to transfer an individual to another hospital and the individual does not require any treatment beyond the capabilities or facilities available at the transferring hospital, the intended receiving hospital may refuse to accept the transfer of the individual in accordance with section 1867(c)(2)(B)(ii) of the Act.

Id. at 32,105 (Emphasis added). Thus, the preamble specifically contemplates that 1867(g) will be applied only when the individual for whom a transfer was requested had not been stabilized. Based on this prior statement by the Secretary, which reasonably interprets the statute and regulations, we conclude that the ALJ erred as a matter of law in determining that it was irrelevant whether R.M. was stabilized prior to his transfer.

Further, in light of the statement in the preamble to the interim final rule, we conclude that the ALJ insufficiently described the precondition for applying section 1867(g) as a requirement that a transfer be "medically necessary." Rather, as set forth in the preamble, the standards relating to the patient's medical status and the capabilities of the transferring hospital that must be satisfied in order to apply section 1867(g) are: 1) the patient must have had an emergency medical condition that was not stabilized at the time of the alleged transfer request; and 2) the individual required treatment beyond the capabilities or facilities available at the transferring hospital.

We further conclude, however, that the inadequate descriptions in FFCL 1 of the conditions precedent for applying section 1867(g), and the ALJ's error in finding at FFCL 11.a. that whether the patient was stabilized was irrelevant, were harmless errors, because the ALJ made underlying findings, supported by substantial evidence, to the effect that the appropriate conditions precedent for applying section 1867(g) were met. That is, the ALJ first found in effect that R.M. had an emergency medical condition, defined by the statute and regulations to mean a condition wherein the patient presents "acute symptoms of sufficient severity," and the "absence of immediate medical attention could reasonably be expected to result in:" 1) placing the health of the individual in serious jeopardy; 2) serious impairment to bodily functions; or 3) serious dysfunction of any bodily organ or part. Here, the ALJ found that "[o]n April 8, 1995, R.M. experienced a life-threatening traumatic injury to his abdominal aorta, the principal vessel carrying blood to the lower part of his body, which shut off the flow of blood to his lower extremities. Tr. at 96; 99-104." ALJ Decision at 5. R.M.'s condition, as described here, clearly falls within the statute's definition of an emergency medical condition.

The ALJ also made underlying findings that R.M.'s emergency medical condition was not stabilized within the meaning of the Act and the regulations at the time of the transfer request. As indicated above, the Act and regulations define "stabilized" to mean that "no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer." In this case, the ALJ described R.M.'s condition to be rapidly deteriorating as time passed:"R.M. needed emergency surgery to treat his injured aorta. He was not medically stable. [Tr.] at 107, 108. The more quickly surgery could be arranged for R.M. the greater his chances were for survival. Time was of the essence. Id. at 105." Id. The ALJ later wrote that R.M. "could not be made medically stable nor could he be stabilized while he was [at Shawnee]." Id. at 27. Further, the ALJ concluded, while Dr. Spengler and the Shawnee staff "did the best they could do to assure that the risks to R.M.'s health were minimized during his stay . . . and his subsequent transport," had R.M. not been transferred, he would have died "regardless of any non-surgical medical care that might have been provided to him at [Shawnee]." Id. The ALJ also analyzed whether R.M. was stable not in hindsight, but, as the language of the Act requires, based upon the transferring physician's/hospital's determination as to whether a material deterioration of the emergency medical condition was likely to result from or occur during the transfer: "Dr. Spengler had no doubt from these clinical signs and symptoms that R.M. had suffered an injury to his abdominal aorta. Tr. at 346, 347. Dr. Spengler knew that R.M. had experienced a life-threatening injury and . . . needed surgery. Id. at 349." Id. at 6.

Substantial evidence on the record as a whole supports the ALJ's findings. First, that R.M. had a vascular emergency medical condition is reflected throughout the hearing testimony and exhibits. R.M.'s medical records and the testimony of record reflect that his blood pressure was labile, he had a "tearing pain up the lower back," and he was cyanotic. I.G. Ex. 1 at 3, 5-8; Tr. at 95-96, 346-347. Dr. Spengler testified that R.M. had "no sensation from the umbilicus down [and no] pulse in either femoral artery or in the feet." Tr. at 347. These symptoms indicated to Dr. Spengler an "obvious aortic injury," which was life-threatening. Tr. at 346, 357. Dr. Nicholas Benson, an I.G. expert witness who reviewed R.M.'s medical records, testified that, based on the symptoms presented by R.M. and the nature of the automobile accident, R.M. was in an emergency medical condition when he arrived at Shawnee. Tr. at 95-96, 102-105. Dr. Benson further stated that he believed "the evidence is pretty clear that [R.M.] had a major vascular problem." Tr. at 96. Dr. Brian Boggs, who eventually performed vascular surgery on R.M. at Presbyterian Hospital stated that on initial examination, "it was clear that [R.M.] had occluded the arterial circulation to his lower extremities [because] he had no pulses in his groin, no pulses in his feet." I.G. Ex. 32, at 10. See also I.G. Ex. 9, at 2.

In addition, contrary to St. Anthony's assertion that "all of the evidence in this case proves that RM was stabilized for the purpose of transfer" (St. Anthony Br. at 88), we conclude that substantial evidence on the record as a whole supports the ALJ's determination that R.M.'s emergency medical condition was not stabilized within the meaning of the Act at the time of the alleged transfer request. The Oklahoma Foundation for Medical Quality, Inc. (a peer review organization), which assessed the services that R.M. received at Shawnee, concluded that "[t]he patient's condition was likely to deteriorate during transfer, but it was imperative that the patient be sent to another facility for the appropriate surgical intervention." I.G. Ex. 8 at 3-4.(8) As noted in the ALJ Decision, Dr. Benson testified that R.M. was not stabilized within the meaning of the Act. ALJ Decision at 27; Tr. at 105-107. Further, even St. Anthony's own expert witness, Dr. John Sacra, testified that R.M.'s "condition ha[d] worsened" by the time he was returned to Shawnee's emergency room from the ground ambulance, that "the patient obviously shouldn't [have gone] by ground if air transport [was] available, because you can speed things up, and you have a higher level of care available on the helicopter as well." Tr. at 599. Moreover, to interpret "stabilized" for purposes of the Act as St. Anthony urges would lead to ludicrous results, since every doctor who testified agreed that, although R.M.'s condition could be temporarily ameliorated by the measures available at Shawnee, R.M. would not survive without emergency surgery. In light of the foregoing evidence and testimony, we conclude that substantial evidence on the record supports the ALJ's conclusion that R.M. had an emergency medical condition that was not stabilized within the meaning of the Act.

We reach this conclusion notwithstanding the selected excerpts of Dr. Spengler's and Mr. Wade's testimony, as well as Dr. Spengler's affidavit of September 23, 1996 (I.G. Ex. 12, at 6), cited in St. Anthony's brief. Contrary to what St. Anthony argued, they do not conclusively show that R.M. was stabilized within the meaning of the Act. That is, the testimony and affidavit do not reflect that, at the time the statements were made, the individuals clearly understood that they were being asked to evaluate whether no material deterioration of R.M.'s emergency medical condition was likely, within reasonable medical probability, to result from or occur during a transfer. Thus, the individuals may have ascribed a different meaning to the terms "stable" and "stabilized" when they made the statements. Further, the Oklahoma State Department of Health (the state survey agency) physician review outline, also cited by St. Anthony, in fact contains conflicting information as to R.M.'s stability. Most notably, the physician reviewer responded "yes" to the question whether "[a]t the time of transfer [it could] be determined with reasonable medical certainty, that the transfer might have posed a threat to the health and safety of the patient."(9) I.G. Ex. 9, at 2.

Nor are we persuaded by St. Anthony's argument that Delaney v. Cade, 756 F.Supp. 1476 (D. Kan. 1991), and Cherukuri v. Shalala, 175 F.3d 446 (6th Cir. 1999), are analogous to the case at hand and, thus, "dispositive" of the issue whether R.M. was stabilized. St. Anthony Br. at 70, 87-88. The Delaney district court decision addressed, among other things, whether a hospital had violated section 1867(c)(2)(B)(i) by transferring a patient with a thrombosed, transected aorta to another medical center which did not have qualified personnel to treat the condition. Delaney, 756 F.Supp. 1476. The district court entered summary judgment on the plaintiff's EMTALA claim, concluding that her condition had been stabilized prior to transfer even though definitive surgery had not been performed. Id. at 1477-78, 1486. The court cited testimony acknowledging that, in retrospect, the patient's condition did not deteriorate as a result of the transfer, and it described the evidence, including testimony of the patient's own expert witnesses, as indisputably showing that the patient was stabilized within the meaning of the Act. Id. at 1486. The court also wrote that the plaintiff "basically concede[d] that she was stabilized before being transferred." Id. at 1486. St. Anthony appeared to argue that, as the Delaney court concluded the plaintiff's aortic emergency medical condition was stabilized prior to transfer, even though definitive surgery had not been performed, we should conclude that R.M.'s aortic emergency medical condition had been stabilized prior to transfer.

St. Anthony, however, failed to address or even acknowledge the subsequent history of Delaney.(10) Specifically, the plaintiff in Delaney appealed, among other things, the district court's summary judgment ruling on her EMTALA claim. On appeal, the Tenth Circuit Court of Appeals remanded the claim, concluding that the plaintiff had not conceded that she was stabilized prior to transfer and that a genuine issue of material fact had been raised as to "whether at the time of her transport 'no material deterioration of [her] condition [was] likely, within reasonable medical probability.' 42 U.S.C. § 1395dd(e)(3)(B)." 986 F.2d 387, 393 (10th Cir. 1993). In light of the Tenth Circuit's decision, as well as the lack of information presented as to whether R.M.'s and Ms. Delaney's injuries in fact were comparable, we conclude that St. Anthony's reliance on the district court decision in Delaney is misplaced.

Cherukuri involved the transfer of two patients with severe head injuries, internal abdominal injuries and internal bleeding, who were initially brought to a small rural hospital which had no trauma center and no equipment to monitor the effect of anesthesia on the brain during surgery. Cherukuri, 175 F.3d at 448. The court, reviewing an ALJ decision below, addressed the question whether Dr. Cherukuri, who was the on-call general surgeon at the hospital, violated the EMTALA transfer conditions when he transferred the patients before 1) operating on them to stop their internal bleeding and 2) receiving an express consent to the transfer from the intended receiving hospital. Id. The court held that the physician did not violate EMTALA's transfer restrictions on two alternative grounds: first, that the physician sufficiently "stabilized" the patients to permit an unrestricted transfer under EMTALA; and second, that the physician did not have anesthesiology available so that he could operate to stop the internal bleeding. Id. at 449.

Overturning the ALJ's decision that patients with abdominal internal bleeding "necessarily, and in all events" could not be considered stabilized within the meaning of the Act "until an abdominal operation before transfer is performed," the Cherukuri court emphasized that EMTALA's definition of "stabilized" is "not given a fixed or intrinsic meaning." Id. at 449, 454. Rather, the court wrote, "[i]ts meaning is purely contextual or situational." Id. Whether a patient is stabilized, the court wrote, "depends on the risks associated with the transfer and requires the transferring physician, faced with an emergency, to make a fast on-the-spot risk analysis." Id. at 449-50. Dr. Cherukuri, the court wrote, "acted properly under very trying and difficult circumstances." Specifically, the receiving hospital refused to accept the transfer until the patients' internal bleeding had been stopped by surgery, while the anesthesiologist on call at the transferring hospital adamantly advised that administering anesthesia for the surgery was too risky because the hospital had no equipment to monitor the effect of anesthesia on the pressure in the brain. Id. at 452. Based on these circumstances, the court concluded that Dr. Cherukuri "should be exonerated of any wrongdoing," and that "any possible fault does not rise to the level prescribed by § (d) of EMTALA . . . ." Id. at 454.

Consequently, we reject St. Anthony's assertion that the Cherukuri case is analogous to R.M.'s case. Most importantly, the patients' conditions differed and the transferring physicians were faced with unique circumstances relating to the risks and benefits of transferring the different patients. Indeed, we note that the holding in Cherukuri instructs us to evaluate whether a patient was stabilized largely on the basis of whether the transferring physician's assessment of the patient's condition was reasonable. ("We agree . . . that the definition of `stabilization' establishes an `objective' standard of `reasonableness' based on the situation at hand . . . ." Id. at 450.) In this case Dr. Spengler did not believe that R.M. was stabilized to the point that he could simply send R.M. to another hospital before receiving that hospital's express consent to the transfer, without violating EMTALA's transfer provisions. Rather, as evidenced by Dr. Spengler's repeated attempts to find a hospital that was able and willing to accept R.M. on the night of April 8, 1995, the transferring physician reasonably believed R.M. was not stabilized within the meaning of EMTALA.

To complete our analysis of whether the ALJ made sufficient findings, supported by substantial evidence, that all of the necessary preconditions for applying section 1867(g) were met, we turn to the question whether R.M. required treatment beyond the capabilities or facilities available at the transferring hospital, Shawnee. As noted above, the ALJ wrote in support of FFCL 1 that R.M. needed a surgeon with "the requisite skills and training to perform the necessary surgery at a hospital with the surgical facilities, staff and equipment that would be required for such surgery." ALJ Decision at 5. Shawnee, the ALJ concluded, lacked such a surgeon and "was ill-equipped to perform the type of surgery that R.M. needed." Id.

We conclude that substantial evidence on the record supports this finding. Specifically, as reflected in the ALJ Decision, Dr. Benson testified that R.M. required a vascular surgeon, an anesthesiologist, the resources of a blood bank and an intensive care unit. Tr. at 103, 112, 115. Dr. Boggs also testified that R.M. needed to be treated by a thoracic vascular surgeon. I.G. Ex. 32 at 11; see also Tr. at 505, 508. That Shawnee could not provide the necessary surgical services is reflected in the state survey agency complaint investigation report and Ms. Fatzer's hearing testimony, which was based on her interview of Shawnee's head operating room nurse. This information shows that while Shawnee had a surgeon on call who was credentialed to perform abdominal vascular surgery, he had not done these procedures in several years, and he did not consider himself capable of performing the surgery R.M. required. I.G. Ex. 6, at 2-3, 10; Tr. at 261-67. See also I.G. Ex 12. Further, Dr. Spengler testified that he had been instructed by personnel at Shawnee that "any major trauma had to be shipped to Oklahoma City" and that, to his knowledge, Shawnee did not possess capabilities to perform the vascular surgery R.M. required. Tr. at. 347-350. See also Tr. at 111-113, 455; I.G. Ex. 32, at 11. Accordingly, we conclude that substantial evidence on the record as a whole supports the ALJ's findings that R.M. had an unstabilized emergency medical condition at the time of the requested transfer, and that the transferring hospital was not equipped to provide the necessary services, rendering transfer imperative.

In its exception to FFCL 2, St. Anthony acknowledged that "Dr. Spengler did determine that RM needed to be transferred to a facility that had specialized capabilities[,]" as the ALJ concluded. St. Anthony Br. at 94. Nevertheless, St. Anthony submitted that FFCL 2 of the ALJ Decision was incomplete because the ALJ failed to find that Dr. Spengler did not perform an appropriate medical screening examination of R.M., as required under section 1867(a). As a result, St. Anthony argued, Dr. Spengler communicated incomplete and incorrect information to Dr. Lucas. Consequently, St. Anthony argued, "[i]f Dr. Lucas was given incorrect medical information and, at the very worst, made a medical judgment call which was in hindsight incorrect, that is not a violation of EMTALA." St. Anthony Br. at 100.

We reject St. Anthony's contention that the ALJ was required to determine whether Dr. Spengler and/or Shawnee performed an appropriate medical screening examination on R.M. within the meaning of section 1867(a). Though what Dr. Spengler and Dr. Lucas said to each other on the night of April 8, 1995 is relevant for purposes of determining whether St. Anthony was requested, and refused, to accept a transfer under section 1867(g), the ALJ was able to make the necessary findings and conclusions about those conversations without engaging in a separate, section 1867(a) analysis. Moreover, we find nothing in the language or the underlying purpose of section 1867(g) that requires an adjudicator to find that a transferring hospital complied with section 1867(a) in order to assess whether a potential receiving hospital violated section 1867(g) where, as in this case, the transferring hospital knew that the patient had an unstabilized emergency medical condition. Nor does the Act suggest, as St. Anthony argues, that a transferring hospital's violation of section 1867(a) necessarily would absolve a potential receiving hospital from any liability under section 1867(g). In sum, we conclude that section 1867(g) is not explicitly linked to, or dependent on, section 1867(a).

Further, we note that St. Anthony made essentially the same argument relating to the content of the conversations between Drs. Spengler and Lucas in its exceptions to FFCLs 9 and 10. Because these arguments fundamentally relate to the content of Dr. Spengler's telephone conversations with Dr. Lucas and the ALJ's assessment of these two doctors' relative credibility, we address them below at sections IV.B.(5) and IV.B.(6)(f).

Based on the foregoing discussion, we delete FFCL 11.a. of the ALJ Decision and modify FFCL 1 as follows:

1. On the evening of April 8, 1995: R.M. had an unstabilized emergency medical condition; Shawnee Regional Hospital did not have the capabilities or facilities necessary to stabilize R.M.'s emergency medical condition; and R.M. needed to be transferred to a hospital that had the specialized capabilities or facilities to care for his life-threatening injury.

We sustain FFCL 2 without modification.

(2) Whether St. Anthony Was a Hospital with "Specialized Capabilities and Facilities"

FFCL 7. [St. Anthony] had the specialized capabilities and facilities to treat R.M.

We next review the ALJ's conclusions that each of the remaining elements of a section 1867(g) violation was satisfied in this case. As recited above, the opening language of the section describes a hospital subject to section 1867(g) as "[a] participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation)." Accordingly, in this section we address St. Anthony's exceptions to FFCL 7 of the ALJ Decision, wherein the ALJ found that St. Anthony "had the specialized capabilities and facilities to treat R.M."(11)

In evaluating this issue, the ALJ concluded that Congress intended the phrase, "specialized capabilities or facilities," "to encompass those capabilities and facilities which enable a hospital to offer specialized care that is not offered by hospitals that are less well-endowed." ALJ Decision at 19. Thus, the ALJ wrote, the phrase includes the "ability to provide the specialized surgery that R.M. needed." Id. On review of the evidence and testimony of record, the ALJ determined that St. Anthony "had available to it . . . everything that was necessary to provide the requisite care to R.M., [including] . . . a specialist who is adept at performing the delicate emergency vascular surgery that R.M. required." Id. Further, the ALJ concluded, St. Anthony had the physical facility, staff, and equipment necessary to perform the surgery. Id. In contrast, the ALJ wrote, Shawnee lacked the necessary capabilities and facilities. The on-call surgeon for Shawnee had not performed vascular surgery for years and had previously advised the hospital that he would no longer perform such surgery. Id. The ALJ also noted that Shawnee lacked the operating facilities necessary to perform the highly complex surgery that R.M. required. Id.

On appeal, St. Anthony excepted to FFCL 7, contending that the ALJ's interpretation of the law was erroneous and that his findings were not supported by substantial evidence on the whole record. "Essentially," St. Anthony wrote, "the ALJ's finding is that Shawnee Regional could transfer RM because it lacked one (1) surgeon necessary to provide definitive care. Wherein, the ALJ disregards the other specialized capabilities and facilities which Shawnee did have that RM required, such as a CAT scanner." (Emphasis in original.) St. Anthony Br. at 150. Further, St. Anthony submitted, while the ALJ determined that St. Anthony had specialized capabilities and facilities because it had a thoracic surgeon available on April 8, 1995, the ALJ failed to determine that St. Anthony had all of the other personnel and equipment necessary to treat R.M., who was a multi-trauma patient. The equipment and personnel required, St. Anthony submitted, included numerous physicians, personnel, equipment to perform an aortography, a ventilator or ventilatory support, a fogarty catheter, a supply of blood, etc. Moreover, St. Anthony argued, the I.G. failed to provide any evidence to prove that the hospital could actually provide all of the services that R.M. required.

We uphold FFCL 7 and determine that St. Anthony's arguments excepting to this FFCL have no merit. First, we conclude that the ALJ did not err in construing the term "specialized capabilities and facilities" to include the resources necessary to perform emergency vascular surgery on R.M. As reflected in the language of section 1867(g), quoted above, Congress did not define the term "specialized capabilities or facilities," but included a list of several types of facilities that would be encompassed by the term: "(such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers) . . . ." By introducing the series of facilities listed in the Act with the words "such as," Congress plainly established that the facilities enumerated should not be read as a comprehensive list, but should serve as examples. Emphasizing this point, 42 C.F.R. 489.24(e) reads: ". . . specialized capabilities or facilities (including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers). . . ." (Emphasis added.)

While both the Act and regulations provide examples of the types of resources that could be considered "specialized facilities" under EMTALA, neither the Act nor regulations provide examples, or otherwise define the meaning, of "specialized capabilities."

The legislative history of section 1867(g), however, supports the conclusion that Congress intended the term "hospital that has specialized capabilities" to include large medical centers with staff able to perform emergency surgery on trauma patients, which may not be available at smaller, community or rural hospitals.

Specifically, in March 1988, the House Committee on Government Operations issued a report which addressed the need to strengthen EMTALA by, among other things, including a provision to prevent reverse-dumping. H.R. Rep. No. 531, 100th Cong., 2d Sess. (1988). The Committee reported learning of "numerous instances" of a patient requiring transfer "from one hospital emergency room to another because the patient's condition requires a level of care which that hospital is unequipped to provide or because there is no physician available there who can adequately treat the patient." Id. at 17-18. The report noted one case involving McAllen Medical Center, "a large tertiary care hospital in McAllen, Texas, [which had] established a blanket policy that it would not accept uninsured or Medicaid transfers from smaller hospitals in its area." Id. at 18. The Committee wrote:

A tragic result of this policy occurred when a small hospital in the area telephoned McAllen Medical Center and was refused the right to transfer a 17-year-old boy with a bullet lodged in his brain. The smaller hospital counseled the boy's family to take him to McAllen's emergency room on their own. Once he arrived, the COBRA amendment required them to treat him, but by then 8 hours had elapsed and he could not be saved.

Id. The Committee then concluded that scenarios such as that in the McAllen Medical Center case "might be less likely" if EMTALA were amended. Id. "Tertiary hospitals," the Committee wrote, "must be required to accept patients from small, unequipped hospitals." Id.

Additionally relevant, in the only federal court decision of which we are aware that addresses this issue, the United States Court of Appeals for the Fourth Circuit evaluated whether a hospital possessed "specialized facilities or capabilities" based on whether the transferring facility possessed the skilled personnel and equipment that the patient required. In the Matter of Baby "K", 16 F.3d 590 (4th Cir 1994). Specifically, the court wrote that when the patient, a baby who resided in a nursing home, experienced respiratory distress, she required facilities and services that were not available at the nursing home, while the receiving hospital "admittedly [did] possess these facilities and capabilities, including mechanical ventilators and a pediatric intensive care unit." Id. at 595, n.6. Thus, the court determined that the receiving hospital did have "specialized capabilities or facilities," even though the types of equipment and services required by Baby K were not specifically listed in the Act or regulations.

Based on the absence of an exclusive, limited definition of "specialized capabilities" in the Act and regulations, as well as the legislative history of section 1867(g), we conclude that the ALJ did not err in finding that "specialized capabilities or facilities" may be read to encompass the skilled personnel, equipment and operating facilities that were necessary to perform the vascular surgery that R.M. required on the evening of April 8, 1995. That is, the ALJ reasonably construed "specialized capabilities or facilities," consistent with congressional intent, to include the services of highly trained surgical specialists, supporting personnel, equipment and facilities that are available in large urban medical centers but not in smaller, outlying hospitals offering a lower level of care. Further, the ALJ did not err in considering the relative resources available at Shawnee in evaluating this question.

We additionally conclude that, contrary to St. Anthony's contention, substantial evidence on the record as a whole supports the ALJ's factual finding that St. Anthony possessed such specialized capabilities and facilities. As reflected at page 19 of the ALJ Decision, St. Anthony represented through its "Emergency Clinical Service Schedule" for March and April, 1995, that its resources included an emergency thoracic surgery service, and that a highly trained, qualified and experienced cardio-thoracic surgeon, Dr. Scott Lucas, was on-call to perform the type of emergency vascular surgery that was eventually provided to R.M. at Presbyterian Hospital. Tr. at 788-90; I.G. Exs. 16, 28-30. St. Anthony also maintained on-call coverage of anesthesia services. I.G. Ex. 13 at 2; I.G. Ex. 16. Further, there were general surgeons on-call, as well as several other specialists available at St. Anthony.(12) Id.

In addition, we reject St. Anthony's arguments that, even though Shawnee did not have a qualified vascular surgeon to operate on R.M., the ALJ should have considered whether Shawnee had any of the other specialized capabilities or facilities that R.M. required. Once the ALJ determined that Shawnee lacked the key service required to stabilize R.M.'s emergency medical condition, it would have been pointless for the ALJ to make further findings as to whether Shawnee had the capabilities and facilities to support this type of service. Indeed, as the March 1988 House Committee on Government Operations report discussed above recognized, an unstable patient may require transfer to a hospital with a higher level of care solely on the basis that there is no physician available at the first facility who can adequately treat the patient. Moreover, St. Anthony's own expert witness, Dr. John Sacra, testified that when a small referring hospital is presented with a patient exhibiting "signs and symptoms of a significant injury or condition that [it is] not capable of caring for," the hospital should transfer the patient as soon as possible to a facility able to provide definitive care rather than "spend time doing other diagnostic tests." Tr. at 614; see also Tr. at 585, 816-817.

Further, contrary to St. Anthony's characterization of the ALJ's findings, the ALJ concluded not only that St. Anthony had available a physician who could provide the highly skilled surgical service that R.M. required, but also that St. Anthony possessed "the staff, the facilities and the equipment" to support the surgical service. ALJ Decision at 19. Testimony and census and staffing documents, as well as St. Anthony's October 20, 1995 letter to NBC News, support this finding. Tr. at 116, 273-275; I.G. Exs. 13, 14, 16.

In addition, we conclude that the ALJ was not required to make individualized findings addressing whether St. Anthony possessed each piece of medical equipment, or all supplies and support personnel that were required to treat R.M.'s emergency medical condition. As discussed above, the Act and regulations require the adjudicator to evaluate whether the potential receiving hospital possessed "specialized capabilities or facilities." Neither the Act nor regulations, however, suggest that the adjudicator resolve this issue in the degree of detail that St. Anthony argued was required. Moreover, as discussed above, substantial evidence on the record supports the ALJ's conclusion that St. Anthony's capabilities and facilities included an emergency thoracic surgery service, an anesthesiology service and surgical suites. Based on this information alone, it was reasonable for the ALJ to conclude that St. Anthony possessed all of the necessary staff, equipment and supplies to support the surgeon's work. Otherwise, having a thoracic surgeon available on-call and facilities available to treat emergency vascular conditions would have been meaningless.

With respect to St. Anthony's contention that it did not have the capabilities or facilities to treat R.M. because he was a "multi-trauma" patient, we conclude that substantial evidence supports the ALJ's determination that it was R.M.'s life-threatening vascular injury which, as Dr. Spengler recognized and communicated to St. Anthony,(13) necessitated R.M.'s transfer. ALJ Decision at 7, 16-17. We note that the record does show that, in addition to the aortic injury, R.M. presented at Shawnee with a potential for a C6 spinous process fracture, fractured ribs, pulmonary contusions and skin lacerations. I.G. Ex. 1; Tr. at 433. However, as reflected in Drs. Spengler's and Benson's testimony, it was R.M.'s life-threatening vascular injury that necessitated immediate transfer and attention. Tr. at 95-96, 103-105, 353, 444-445.

Accordingly, we affirm FFCL 7 of the ALJ Decision.

(3) Whether St. Anthony Had the Capacity to Accommodate the Transfer

FFCL 8. [St. Anthony] had the capacity to treat R.M.

Related to the question whether a potential receiving hospital has the specialized capabilities and facilities to treat a patient transferred from another facility is section 1867(g)'s requirement that the receiving hospital must have "the capacity to treat the individual." While the Act itself does not define "capacity," the Secretary has defined the term at section 489.24(b) of the regulations as--

. . . the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital's past practices of accommodating additional patients in excess of its occupancy limits.

The ALJ addressed this issue at FFCL 8, concluding that St. Anthony had the capacity to treat R.M. on the evening of April 8, 1995. Specifically, the ALJ determined that St. Anthony "had on hand or available to it the qualified staff, including Dr. Lucas, necessary to provide vascular surgery to R.M." ALJ Decision at 20. The ALJ also wrote that "[n]one of Respondent's operating rooms were in use on that evening." Id.

Citing the language of section 489.24(b), St. Anthony excepted to FFCL 8 on the ground that the ALJ failed to make a determination that St. Anthony had the ability to accommodate R.M.'s "requested examination or treatment." St. Anthony Br. at 155. Thus, St. Anthony appeared to argue that the ALJ should have analyzed the capacity issue by emphasizing the content of the request to treat R.M. St. Anthony also argued that the evidence on which the ALJ relied to support FFCL 8 was inadequate. While the exhibit cited by the ALJ, correspondence from St. Anthony's Vice President of Planning & Marketing to NBC News, showed that there were no operating rooms in use and that a thoracic surgeon and an anesthesiologist were available on April 8, 1995, St. Anthony submitted that the exhibit did not address whether St. Anthony had "other suites, staff, or equipment." Id.

Based on the governing law and evidence of record, we conclude that the ALJ did not err as a matter of law in his interpretation of the "capacity" requirement of section 1867(g) and that FFCL 8 is supported by substantial evidence on the record. Applying the definition of "capacity" at section 489.24(b) of the regulations, the ALJ properly evaluated whether St. Anthony could accommodate R.M. by determining whether it had a skilled surgeon who was actually free on the night of April 8, 1995, to perform the vascular surgery required and whether St. Anthony had available a surgical suite where the surgery could be performed. The evidence cited by the ALJ, as well as additional documentation in the record, supports that these resources were available. I.G. Ex. 6, at 13, I.G. Exs. 13, 16. Moreover, there is no dispute that Dr. Lucas was not performing surgery on any other patient during the night at issue. The record further includes "Eight Hour Census, Classification, Staffing and Variance" charts showing that beds were available in St. Anthony's intensive care unit on the evening of April 8, 1995. I.G. Ex. 14. The physician staffing documents, nursing schedules and patient logs also indicate that the necessary support personnel were available to treat R.M. that evening. Id.

St. Anthony appeared to argue, however, that the ALJ should have evaluated whether it had the capacity to treat a multi-trauma patient. Specifically, it appears that St. Anthony relied on the phrase, "the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual," in section 489.24(b), to argue that the ALJ should have analyzed whether St. Anthony had the capacity to accommodate R.M. based on what the transferring hospital represented the patient's condition to be. St. Anthony repeatedly averred in its brief on appeal that R.M. was a multi-trauma patient, with potential neurological injury, requiring more than the services of a vascular surgeon. See, e.g., St. Anthony Br. at 18-19, 156, 187.

We conclude that this argument is without merit. For the reasons discussed below at sections IV.B.(4), (5) and (6)(f), we find that substantial evidence supports the ALJ's conclusion that Dr. Spengler communicated to Drs. Buffington and Lucas that the central purpose for requesting the transfer to St. Anthony was to obtain treatment for R.M.'s aortic emergency medical condition. Accordingly, even if the ALJ had been required to evaluate whether St. Anthony had the capacity to treat R.M. based on Dr. Spengler's representations about R.M.'s emergency medical condition, his analysis would have been no different.

We also reject St. Anthony's contention that the ALJ was required to find that additional "suites, staff and equipment" were available to treat R.M. on the night of April 8, 1995 in order to conclude that St. Anthony had the capacity to treat R.M. As we stated above in response to St. Anthony's exception to FFCL 7, the ALJ was not required to make individualized findings that each piece of equipment necessary to perform the surgery that R.M. required was on hand during the evening at issue. Rather, insofar as the evidence shows that the medical specialists, operating facilities, and beds were available to accommodate R.M., the ALJ reasonably concluded that St. Anthony possessed all of the resources necessary to support the surgery and follow-up care.(14)

Accordingly, we affirm FFCL 8 of the ALJ Decision.

(4) Whether Shawnee Requested St. Anthony to Accept the Transfer of R.M.

FFCL 3. Dr. Spengler attempted to arrange the transfer of R.M. from Shawnee Regional Hospital to another hospital which had the specialized capabilities or facilities and the capacity to care for R.M.'s life-threatening injury.

FFCL 4. Dr. Spengler requested [St. Anthony] to accept the transfer of R.M.

FFCL 4.a. Dr. Spengler's account of his telephone conversation with Dr. Buffington in which Dr. Spengler requested the transfer of R.M. to [St. Anthony].

FFCL 4.b. Dr. Buffington's versions of his conversation with Dr. Spengler.

Having concluded that the law and evidence support the ALJ's determination that St. Anthony had the specialized capabilities or facilities as well as the capacity to treat R.M., we next turn to the question whether Shawnee requested St. Anthony to accept R.M. as a transfer patient. The ALJ addressed this issue in FFCLs 3 and 4, quoted above.

In support of FFCL 3, the ALJ described the actions which immediately preceded Dr. Spengler's alleged request to transfer R.M. to St. Anthony. The ALJ found that Dr. Spengler initially arranged for Medi-Flight to transport R.M. to University via helicopter because the ground ambulance that Dr. Thomas had arranged for the transfer would be too slow in light of the severity of R.M.'s condition. ALJ Decision at 7. Thereafter, the ALJ determined, Dr. Spengler decided to call the staff at University because "[t]he clinical picture of R.M. had changed from a patient with a serious neurological injury to that of a patient with a life-threatening vascular injury. See Tr. at 352, 353." Id. After Dr. Spengler phoned to communicate this information, he received a call back from University, advising him that University would not be able to receive R.M. because the staff was treating other emergency surgery patients. After he received this news, Dr. Spengler "initiated an urgent search for another hospital and surgeon that could perform the necessary emergency surgery on R.M." Id. Ultimately, the ALJ found, Dr. Spengler arranged for R.M.'s transport to Presbyterian Hospital in Oklahoma City. Id.

Excepting to FFCL 3, St. Anthony argued that while Dr. Spengler did arrange for an appropriate transfer of R.M. to University and Presbyterian, he did not attempt to arrange an appropriate transfer of R.M. to St. Anthony. To support this exception, St. Anthony argued that the ALJ failed to acknowledge the following "substantial facts:" 1) That two doctors at Shawnee and two doctors at University had confirmed University's acceptance of R.M.'s transfer prior to the time Shawnee called St. Anthony; 2) that when R.M. was transferred, it was to the emergency room department at Presbyterian Hospital; 3) that Medi-Flight personnel had "taken over care of the patient . . . and were leaving alone [which] indicates that RM was a stabilized patient going to University Hospital" and, under governing precedent, R.M. was deemed to have "come to" the receiving hospital; and 4) that while Dr. Spengler arranged appropriate transfers to both University Hospital and Presbyterian Hospital, "[h]e did not attempt to transfer RM to St. Anthony Hospital . . . because he knew Medi-Flight would not take RM to . . . St. Anthony Hospital." St. Anthony Br. at 101-107.

Thus, in excepting to FFCL 3, St. Anthony basically charged that the ALJ erred by omitting from the discussion supporting the FFCL certain alleged additional facts and inferences which would support a conclusion that Dr. Spengler did not make a proper request to transfer R.M. to St. Anthony and that such a transfer would not have been "appropriate." These contentions relate to one or more arguments that St. Anthony made in its exceptions to other FFCLs. Accordingly, we do not discuss them separately here.

We conclude that substantial evidence on the whole record supports FFCL 3. The ALJ cited hearing testimony to support all of the findings underlying this FFCL. Moreover, the testimony cited by the ALJ -- Dr. Spengler's recollections of his attempts to arrange for R.M.'s transfer to a hospital that could treat his aortic injury -- was corroborated by other witnesses, including Mr. Wade and Reverend Larry Sparks, who witnessed the activities in the Shawnee emergency room on the night of April 8, 1995. See, e.g., Tr. at 225-227; I.G. Ex. 45, at 6.

With respect to FFCL 4, the ALJ found that the preponderance of the evidence established that Dr. Spengler requested Dr. Buffington, St. Anthony's emergency room physician on the evening of April 8, 1995, to accept a transfer of R.M. to St. Anthony. The ALJ noted that there was no record of the actual words exchanged by the two physicians. Accordingly, to ascertain the substantive nature of the call placed from the Shawnee emergency room to the St. Anthony emergency room on the night of April 8, 1995, the ALJ looked to the witnesses' recollections of the information conveyed during the call and their motivations, professional responsibilities and subsequent actions, as well as corroborating testimony and statements. The ALJ additionally considered St. Anthony's prior representations about the call, citing St. Anthony's response to an interrogatory in a civil action involving the R.M. matter. ALJ Decision at 8-12. Based on all of this information, the ALJ found that Dr. Spengler in essence communicated to Dr. Buffington: 1) that R.M. had an aortic emergency medical condition that required immediate treatment by a vascular surgeon; and 2) that Dr. Spengler was seeking to transfer R.M. to St. Anthony so that the surgery could be performed there by St. Anthony's on-call thoracic and vascular surgeon. The ALJ also determined that Dr. Buffington understood this request. In reaching this conclusion, the ALJ provided a detailed explanation as to why he found Dr. Spengler's account of the conversation between the two physicians to be credible (FFCL 4.a.), as well as why he determined that Dr. Buffington's hearing testimony was not credible (FFCL 4.b.). ALJ Decision at 7-12.

Excepting to FFCL 4, St. Anthony argued that St. Anthony's prior representation about the call received from Shawnee, which was in an "unverified answer to an interrogatory which was supplemented," represented only a "scintilla of proof that a request to transfer was made." St. Anthony Br. at 107. Moreover, St. Anthony contended, the ALJ edited the interrogatory answer by removing the word "attempt" from the following sentence:

To the best of Defendant's knowledge, at this time, and to the best of recipient[']s recollection, these conversations included the condition of [R.M.], the extensive and repeated efforts of St. Anthony Hospital to attempt to complete the transfer of [R.M.] to St. Anthony Hospital, including Mediflight's refusal to fly to, and transport patients to, St. Anthony Hospital.

Id. at 108; I.G. Ex. 33, at 2. By editing this answer, St. Anthony contended, the ALJ mischaracterized its long-standing and consistent position that Nurse Burkle, aware that Medi-Flight would not land at St. Anthony, "attempted to find an alternative form of appropriate transportation" in the event that Shawnee made a formal request for transfer, which it never did. (Emphasis in original). St. Anthony Br. at 108; St. Anthony Reply Br. at 13-14.

St. Anthony also argued that the evidence of record shows that EMTALA patient transfer requests are properly made from emergency room to emergency room, and the reason that Dr. Spengler by-passed this process and started calling thoracic surgeons was because he "wanted some advise [sic] on the management of the patient and what to tell University . . . ." Id. at 109. Further, St. Anthony submitted, Dr. Spengler's hearing testimony about his conversation with Dr. Buffington was inconsistent with his prior statements and was contradicted, not corroborated, by the other witnesses. St. Anthony additionally submitted that Dr. Buffington's hearing testimony accurately reflected the substance of his conversation with Dr. Spengler, and that the ALJ erred in determining that Dr. Buffington's hearing testimony contradicted his earlier statement.

We conclude that substantial evidence supports the ALJ's finding that Dr. Spengler requested St. Anthony, through Dr. Buffington, to accept a transfer of R.M. for emergency vascular surgery, and that Dr. Buffington understood that this request for transfer had been made. As reflected in the ALJ Decision at pages 9-11, Dr. Spengler testified at the hearing that upon being told that University had withdrawn its acceptance of the transfer, he instructed a member of the staff at Shawnee to place phone calls to find a thoracic surgeon at another hospital that would accept the transfer. Tr. at 355; I.G. Ex. 1, at 3. One of those calls, initially placed by Nurse Kristi Williamson at Shawnee, was to St. Anthony Hospital. Tr. at 357. The call to St. Anthony, which was initially fielded by Nurse Anne Burkle, was transferred to Dr. Buffington. Dr. Buffington then was connected to Dr. Spengler. Tr. at 357, 721, 723. During his conversation with Dr. Buffington, Dr. Spengler described the patient as having an emergency medical condition involving his aorta, as highly unstable and in need of a vascular surgeon. Tr. at 357-58. Dr. Spengler requested to speak to St. Anthony's on-call thoracic surgeon. In response, Dr. Buffington stated that he would contact the surgeon and that either he or the surgeon would call Dr. Spengler back. Id. at 358. Notably, one year after the events at issue took place, both Dr. Buffington and Nurse Burkle recalled that Shawnee had called to request a patient transfer to St. Anthony. I.G. Ex. 6, at 21-23; I.G. Ex. 31.

Further, we are not persuaded by St. Anthony's exceptions. With respect to St. Anthony's interrogatory answer at I.G. Exhibit 33, on which the ALJ relied, we conclude that the ALJ's edit did not materially affect the meaning of the statement. Regardless of whether the word "attempted" is included or omitted, St. Anthony's interrogatory response reflects that it understood that a request to transfer R.M. had been made. Moreover, the interrogatory response is not the only prior statement made by St. Anthony in the record that demonstrates that it understood that Shawnee had made a request to transfer R.M. For example, in its Plan of Correction submitted in response to HCFA's determination that an EMTALA violation occurred, St. Anthony wrote that it "did not refuse the transfer of [R.M.]" I.G. Ex. 11, at 12. Rather, St. Anthony submitted:

We attempted to transfer this patient to St. Anthony Hospital by creating a combination of both air and ground transportation. While these arrangements were being attempted, St. Anthony Hospital was notified that other transfer arrangements had been completed, and St. Anthony Hospital's services were not [sic] longer required. St. Anthony Hospital did not refuse to accept this patient, and in fact continued arrangements for transfer of this patient to the hospital until they were advised other arrangements had been made.

(Emphasis in original.) Id. Moreover, in a September 1996 letter from St. Anthony's counsel to HCFA, St. Anthony represented:

Once the emergency room personnel at St. Anthony Hospital became aware that Shawnee Regional Hospital wished to transfer this patient to St. Anthony Hospital, the process for transfer was initiated. The emergency room physician saw no problem with the transfer, and began arrangements for the transfer. The patient appeared to have multiple vascular problems which would possibly require surgical intervention. Therefore, the emergency room physician contacted Dr. Lucas who was the vascular surgeon on call for St. Anthony Hospital. Dr. Lucas agreed to contact Shawnee Regional Hospital to determine the status of the patient. Dr. Lucas did not call back to St. Anthony Hospital.

. . .

At no time did the hospital refuse the transfer of this patient. To the contrary, all efforts by the personnel in the emergency room at St. Anthony Hospital were to facilitate transfer of this patient to St. Anthony Hospital.

(Emphasis added.) I.G. Ex. 11, at 21-22. Moreover, St. Anthony concluded that "[i]t is clear after reviewing the facts and the law that St. Anthony Hospital appropriately reacted to the request for transfer of this patient." (Emphasis added.) I.G. Ex. 11, at 23. See also I.G. Ex 11, at 28; I.G. Ex. 13, at 5.

We also find unpersuasive St. Anthony's argument that Dr. Spengler bypassed what St. Anthony submitted was the proper

"ER to ER" protocol for requesting an EMTALA transfer because he "already had an acceptance of RM at University" and was merely looking for advice from St. Anthony's thoracic surgeon "on the management of the patient and what to tell University Hospital." St. Anthony Br. at 109-110. The ALJ reasonably concluded that it was implausible that Dr. Spengler would have indicated that he was seeking only the advice of a vascular surgeon in light of Dr. Spengler's diagnosis of R.M.'s condition, his decision to arrange for a Medi-Flight transfer of R.M., and University's clear withdrawal of its prior acceptance of the transfer. Further, that Dr. Spengler indicated to Dr. Buffington that he was requesting St. Anthony to accept the transfer is corroborated by testimony and prior statements of Ms. Burkle, Reverend Sparks, and Dr. Buffington himself. See ALJ Decision at 9-12; I.G. Ex. 6, at 21-23, I.G. Ex. 31; Tr. at 226-27.

We also note that by speaking directly with Dr. Buffington on the night of April 8, 1995, Dr. Spengler cannot be said to have "bypassed" what St. Anthony alleged was the appropriate "ER to ER" protocol for making an EMTALA transfer request. During the conversation, Dr. Spengler conveyed Shawnee's need to transfer a patient with an emergency medical condition involving a traumatic injury to his aorta. Dr. Spengler further asked to speak with St. Anthony's on-call thoracic surgeon because Dr. Spengler believed, on the basis of his experience working as an emergency room physician at numerous Oklahoma City hospitals, that the thoracic surgeon's consent to treat the patient was required before St. Anthony could accept the request. Tr. at 340-41, 356. In his April 11, 1996 interview, Dr. Buffington indicated that he understood that Dr. Spengler had made a transfer request and confirmed that, before St. Anthony could accept, the consent of the thoracic surgeon would be needed. I.G. Ex. 6, at 21-22. Accordingly, under St. Anthony's own theory of how transfer requests should be handled, it was the responsibility of the receiving hospital's emergency room physician to determine whether to accept a request for transfer. Thus, it became incumbent upon Dr. Buffington to actively pursue and resolve the question whether St. Anthony could accept R.M. for treatment once Dr. Buffington spoke with Dr. Spengler. As the ALJ properly concluded and as we discuss below, however, Dr. Buffington plainly abdicated this responsibility.

We further uphold the ALJ's assessments of the witnesses' credibility. As we stated above, the Board generally accords considerable deference to an ALJ's assessments of witness credibility because the ALJ has the best opportunity to observe the witnesses and weigh the evidence. The ALJ's conclusions, however, must be supported by reliable evidence in the record. Further, any inferences that the ALJ makes must be reasonably drawn from the evidence and explained. In this case, the ALJ provided a detailed and well-reasoned explanation, supported by reliable evidence in the record, as to why he found Dr. Spengler's account of his call to Dr. Buffington credible and why prior, allegedly inconsistent statements by Dr. Spengler did not materially contradict his hearing testimony. ALJ Decision at 10-11. Most notably, the ALJ reasoned that Dr. Spengler's testimony was "wholly consistent with his motivation on the evening of April 8, 1995" to secure an appropriate transfer of R.M. to a facility that had the ability to treat R.M.'s injury. ALJ Decision at 8. Further, as the ALJ observed, Dr. Spengler's testimony was corroborated by St. Anthony's prior representations, the summary of Dr. Buffington's April 11, 1996 interview, Ms. Burkle's actions of the evening of April 8, 1995, as well as her affidavit and testimony in earlier proceedings, and Reverend Sparks' hearing testimony.

With respect to Dr. Spengler's April 1997 deposition, which St. Anthony cited to support the contention that Dr. Spengler's hearing testimony contradicted his earlier testimony, the ALJ provided a thorough explanation supported by the evidence as to why the deposition and hearing testimony were not at odds. ALJ Decision at 10. We too have carefully reviewed the deposition transcript. At the end of a lengthy series of inquiries regarding his numerous interactions with all of the hospitals and surgeons he contacted on the night of April 8, 1995, Dr. Spengler stated in his deposition that he had not spoken with a physician at St. Anthony on the night in question. I.G. Ex. 19, at 66-67. St. Anthony cited this statement, as well as Dr. Spengler's deposition testimony that he was attempting to reach a thoracic surgeon, to argue that Dr. Spengler's deposition testimony contradicted his hearing testimony. St. Anthony Br. at 110.

As the ALJ observed, however, almost immediately after Dr. Spengler testified in his deposition that he had not directly spoken with St. Anthony's emergency room, he recalled that he had spoken with St. Anthony's emergency room physician, although he could not recall the physician's name. I.G. Ex. 19, at 67. Given the length and substantive focus of the deposition, as well as Dr. Spengler's almost immediate correction of his initial denial, we concur with the ALJ that the statement on which St. Anthony relied represents an honest, temporary memory lapse. Moreover, as the ALJ noted, Dr. Spengler was not asked any follow-up questions at the deposition about the conversation. In addition, Nurse Kristi Williamson's testimony that Dr. Spengler asked her to make calls to Oklahoma City hospitals for the primary purpose of reaching a thoracic surgeon does not negate either that Ms. Burkle understood from Nurse Williamson's call that Shawnee had a patient requiring transfer, or that Dr. Buffington actually spoke with Dr. Spengler. See St. Anthony Br. at 110. Moreover, that Dr. Spengler mentioned speaking with St. Anthony's on-call thoracic surgeon but not its emergency room physician in the April 10, 1995 letter that Dr. Spengler wrote to Dr. Quick, Shawnee's Emergency Medicine Department Chief, is not tantamount to a denial by Dr. Spengler that he spoke with Dr. Buffington, as St. Anthony suggested. St. Anthony Br. at 110-111.

We further conclude that the ALJ's assessment that Dr. Buffington's hearing testimony was not credible is supported by the record and a well-reasoned analysis. Dr. Buffington testified at the hearing that the phone call that he received from Shawnee on April 8, 1995 exclusively involved: 1) Dr. Spengler's request, without any explanation, to speak to "the on-call thoracic surgeon for the emergency room;" and 2) Dr. Buffington's response, that he would contact the surgeon and that either he or the surgeon would get back to Dr. Spengler. Tr. at 744-46. Dr. Buffington testified at the hearing that Dr. Spengler did not relate to Dr. Buffington any of R.M.'s signs or symptoms. Id. The ALJ found this testimony implausible in light of Dr. Spengler's motivations on the night of April 8, 1995, St. Anthony's prior representations about the call, Dr. Buffington's April 11, 1996 interview statement, and Nurse Burkle's actions to facilitate R.M.'s transfer to St. Anthony on the night in question. ALJ Decision at 8, 11, 12.

We agree. According to the summary of Dr. Buffington's April 11, 1996 interview, Dr. Buffington not only recalled that a Shawnee emergency room physician had phoned to request a patient transfer on the evening of April 8, 1995, but indicated that "he remembered the incident because it was rather unusual . . . that they usually don't get calls like that where you don't take them (the transfers)." I.G. Ex 6, at 21-22. Further, while Dr. Buffington stated during the interview that "he wasn't sure of the name of the Shawnee Regional emergency room physician, . . . he did recall the physician said [that the patient] had what was probably a `dissecting thoracic aneurysm'." Id. Dr. Buffington also told the interviewer that "he saw no problems with a transfer but that he first had to have a thoracic receiving surgeon." Id. Supporting Dr. Buffington's April 1996 interview, Ms. Burkle remembered "the call requesting transfer via Medi-flight from Shawnee Oklahoma" when she was interviewed by the state survey agency. I.G. Ex. 6, at 23. "Due to apparent contract problems at that time," Ms. Burkle reported, "Mediflight was not landing at St. Anthony Hospital." Id. Accordingly, Ms. Burkle, "operating on the assumption that the transfer would be accepted, spent time on the phone trying to arrange a landing elsewhere in the city (Mercy Hospital) with subsequent ground transport to St. Anthony." Id.

On appeal, St. Anthony suggested that the summary of Dr. Buffington's April 11, 1996 interview was unreliable because the interview was conducted while Dr. Buffington was on a cellular telephone, driving and distracted. St. Anthony Br. at 114. St. Anthony also posited that the interview summary was actually consistent with Dr. Buffington's hearing testimony.(15) Id.

These arguments have no merit. If Dr. Buffington was so distracted during the April 11, 1996 interview that he could not remember or reliably represent the substance of his conversation with Dr. Spengler, he certainly would not have been able to provide the details about the request to transfer R.M. that he related to the state surveyor. Moreover, these very details -- involving both Dr. Spengler's initial diagnosis of R.M.'s condition and the unusual outcome of the transfer request -- squarely conflict with Dr. Buffington's hearing testimony.

Further, while the summaries of both Dr. Buffington's and Nurse Burkle's interviews with the state survey investigator are hearsay, we concur with the ALJ that they contain reliable and credible accounts of what was both conveyed, and understood, to be the purpose and substance of Shawnee's call to St. Anthony on the night of April 8, 1995. Nurse Carol Fatzer, who drafted the summaries, testified at the hearing that it was her responsibility to conduct an unbiased, objective investigation:

My goal, knowing that it was very political, very open, very sensitive, was to do the most careful, accurate, nonbiased work that I could do, because I knew that it would be subject to much criticism, that we would be named either a rubberstamp for the government or a rubberstamp for the hospitals, that we were, in fact, damned if you do and damned if you don't.

And my sense was that I am just going to call them as I see them and just let the chips fall where they may.

Tr. at 245-46. With regard to how she recorded the interviews conducted during the investigation, Ms. Fatzer stated that:

I [took] notes on a yellow pad. I would ask the individual first off -- usually it's just, were you present that evening; relate the sequence of events as you recall. It was an open-ended question. I would take what I would call sketchy notes, listening and writing in key phrases in quotation marks, which I would then type those up in quotation marks. Most of them weren't that long, and, again, they were typed or written up, usually the same day, that evening.(16)

Tr. at 259. That Ms. Fatzer was justifiably motivated and acutely aware of the need "to do the most careful, accurate, nonbiased work that [she] could," and that she wrote the interview summaries on the same days that the interviews took place, persuade us that the interview reports contain reliable information. Additionally, as noted in the ALJ Decision, Dr. Buffington did not deny in his prior deposition that the summary of his April 11, 1996 interview was accurate. Dr. Buffington did later "clarify" that the statement in the report that he "saw no problems with a transfer, but that he first had to have a thoracic receiving surgeon," was directed to the interviewer and had not been made to Dr. Spengler. Tr. 785-86. This clarification, however, does not negate the meaning of the statement, i.e., that based on the call placed by Shawnee and received by St. Anthony, Dr. Buffington understood on the night of April 8, 1995 that there was a patient at Shawnee who urgently required vascular surgery, and Shawnee wished to transfer the patient to St. Anthony to receive such services. Moreover, as the ALJ noted, while St. Anthony's emergency department medical director, director of emergency and outpatient services and medical staff coordinator were present during the state survey investigation interview of Dr. Buffington, St. Anthony did not call any of these individuals as witnesses at the hearing to dispute the accuracy of the interview report. ALJ Decision at 12.

Based on the foregoing analysis, we affirm FFCLs 3, 4, 4.a. and 4.b. of the ALJ Decision.

(5) Whether St. Anthony Refused the Request to Transfer R.M.

FFCL 5. Dr. Buffington deferred to Dr. Lucas, [St. Anthony's] on-call thoracic and vascular surgeon, to make a decision about whether or not to perform surgery on R.M. at [St. Anthony].

FFCL 6. Dr. Lucas declined to care for R.M.

FFCL 6.a. Dr. Spengler's credible testimony of his telephone conversations with Dr. Lucas.

FFCL 6.b. Dr. Lucas' testimony about his conversations with Dr. Spengler.

FFCL 6.c. [The ALJ's] reasons for finding Dr. Spengler's testimony to be credible and for finding Dr. Lucas' testimony not to be credible.

FFCL 10. [St. Anthony] refused to accept an appropriate transfer(17) of R.M.

Based on the above-quoted FFCLs, the ALJ concluded that St. Anthony refused to accept Shawnee's request to transfer R.M. on the night of April 8, 1995. As discussed below, we conclude that these FFCLs are supported by substantial evidence on the record and that the ALJ did not err as a matter of law in reaching these conclusions.

Excepting to FFCL 5, St. Anthony argued that the evidence showed that Dr. Buffington did not defer to Dr. Lucas to decide whether to accept or reject the transfer of R.M.(18) Citing Dr. Buffington's hearing testimony, St. Anthony contended that "[t]here is no evidence that Dr. Buffington would have rejected this patient based on [Dr.] Lucas' decision making." St. Anthony Br. at 133. In fact, St. Anthony wrote, Dr. Buffington testified that he would have accepted R.M. "if at all possible." Id. Dr. Buffington further testified at the hearing that if the specialist on call believed that he was not the appropriate person to treat the patient, Dr. Buffington probably would have re-contacted the physician making the request to determine whether the patient could be treated by other available physicians. Moreover, St. Anthony argued, in this case "we are dealing in hypotheticals, since Dr. Buffington was not made aware of [Dr.] Lucas' actions." Id.

This argument is without merit. For the reasons discussed in the preceding section of this decision, we conclude that the ALJ properly determined that Dr. Buffington's hearing testimony was not credible and that it materially contradicted his prior statements about his actions responding to the transfer request. As we also discussed above, we concur with the ALJ that the summary of Dr. Buffington's April 11, 1996 interview constitutes a reliable account of his actions and conversations on the night of April 8, 1995, and that this interview is corroborated by other evidence of record.

We further conclude that substantial evidence on the record supports FFCL 5 of the ALJ Decision. As noted by the ALJ, the summary of Dr. Buffington's April 11, 1996 interview shows that, contrary to St. Anthony's characterization of the evidence, Dr. Buffington plainly abdicated his responsibility to accept or reject the transfer request, yielding to Dr. Lucas' decision not to treat R.M. ALJ Decision at 13, citing I.G. Ex. 6, at 21-22. As reflected in the ALJ Decision, according to the interview summary, Dr. Buffington reported to the interviewer that he "saw no problems with a transfer but that he first had to have a thoracic receiving surgeon." Id. We conclude that it was reasonable for the ALJ to infer from this statement that Dr. Buffington believed at the time he spoke with Dr. Spengler that he could not accept the request unless he received Dr. Lucas' consent to treat the patient, and that Dr. Buffington acted according to that belief. See also I.G. Ex. 6, at 17, 20; I.G. Ex. 11, at 13. As reflected in the ALJ Decision, Dr. Spengler testified at the hearing that Dr. Buffington had told him that "[Dr. Buffington] didn't think that Dr. Lucas would be of much help to [Dr. Spengler]." ALJ Decision at 12, citing Tr. at 358. Thus, Dr. Spengler's testimony lends further support to the ALJ's finding that Dr. Buffington intended to defer to Dr. Lucas' decision on the transfer request.

Further significant, the ALJ noted, was Dr. Buffington's April 1996 account of the single conversation that he had with Dr. Lucas on the night of April 8, 1995, and Dr. Buffington's failure to take any action on the transfer request following that phone call. ALJ Decision at 13, citing I.G. Ex. 6, at 21-22. According to the interview summary, during the conversation between Drs. Buffington and Lucas, Dr. Lucas indicated that he likely would not consent to treat R.M. Id. Moreover, as the ALJ observed, Dr. Buffington recalled that Dr. Lucas initially began to instruct Dr. Buffington as to how to respond to Dr. Spengler, but then Dr. Lucas decided that he should speak directly to Dr. Spengler. Id. Thus, contrary to St. Anthony's contention, substantial evidence supports the ALJ's determination that Dr. Buffington most likely was aware of Dr. Lucas' intention to deny the transfer request.

As the ALJ observed, from the point in time when Dr. Lucas told Dr. Buffington that he would respond directly to Dr. Spengler, Dr. Buffington took no additional action on the R.M. matter:

Dr. Buffington did not tell Dr. Lucas at that point that Dr. Lucas lacked the authority to decide whether or not to take R.M.'s case. See I.G. Ex. 6 at 21, 22. Nor did Dr. Buffington remind Dr. Lucas of his obligation as [St. Anthony's] on-call thoracic and vascular surgeon to take any case that Dr. Buffington concluded would require Dr. Lucas' services. See Id. . . . . in fact, Dr. Buffington simply allowed Dr. Lucas to call Dr. Spengler, knowing that Dr. Lucas was not likely to take R.M.'s case.

ALJ Decision at 13. In light of Dr. Buffington's knowledge that Shawnee had requested to transfer R.M., we conclude that the ALJ reasonably determined that Dr. Buffington's failure to take action following his conversation with Dr. Lucas constituted "an abdication by Dr. Buffington of his responsibility to decide whether R.M. would be accepted by [St. Anthony]." Id.

Excepting to FFCLs 6, 6.a. and 6.c., St. Anthony argued that Dr. Lucas did not decline to care for R.M., that the ALJ's conclusion was not based on the facts, and that the ALJ incorrectly accepted Dr. Spengler's hearing testimony as true. St. Anthony described what it alleged to be a series of Dr. Spengler's inconsistent statements. For example, St. Anthony submitted that Dr. Spengler's account on direct examination of what he told Dr. Lucas contradicted Dr. Spengler's account on cross-examination. St. Anthony Br. at 135-139. Dr. Spengler, St. Anthony appeared to charge, used the word "essentially" to preface his direct examination account of what he conveyed to Dr. Lucas in order to conceal that he had conveyed information suggesting that R.M. was a multi-trauma patient. Further, St. Anthony submitted, Dr. Spengler divulged this information on cross-examination. Contrary to the ALJ's assessment, St. Anthony wrote, "[n]one of the evidence corroborates Dr. Spengler's versions of the telephone conversations." Id. at 144. St. Anthony also argued that the ALJ's attempts to explain two of Dr. Spengler's prior inconsistent statements "as nothing more than a lapse of memory," and a "dictation error," were without foundation. Id. at 143.

We conclude that substantial evidence on the whole record supports FFCLs 6, 6.a, 6.b and 6.c. As reflected in the ALJ Decision, Dr. Spengler testified that when he received Dr. Lucas' call on the night of April 8, 1995, he told Dr. Lucas R.M.'s age, the circumstances of the automobile accident and that R.M. had suffered an aortic injury. ALJ Decision at 14, citing Tr. at 359-60. Dr. Spengler further testified that he told Dr. Lucas that University had initially accepted the patient for transfer, but subsequently rescinded its acceptance. Id. Dr. Lucas, Dr. Spengler testified, stated that he was not interested in taking R.M.'s case, and that the matter was University's problem. Id.

As further reflected in the ALJ Decision, Dr. Spengler also testified that he spoke with Dr. Lucas on a second occasion during the night at issue, when Dr. Lucas was acting in the capacity as the on-call thoracic and vascular surgeon for another hospital. ALJ Decision at 14, citing Tr. at 361. According to Dr. Spengler's account, Dr. Lucas told Dr. Spengler that he remained uninterested in R.M.'s case and that the matter was still University's problem. Id. Based on the foregoing testimony, we conclude that substantial evidence supports the ALJ's determination that Dr. Lucas declined to care for R.M.

We also uphold the ALJ's finding that Dr. Spengler's testimony describing his conversations with Dr. Lucas was credible. The ALJ supplied a detailed and reasoned analysis reflecting why he found Dr. Spengler's account truthful, based on Dr. Spengler's demeanor, his diagnosis of R.M., his motivations on the night of April 8, 1995, and his other consistent actions that night. ALJ Decision at 16-18. Those actions included calling the physicians at University to notify them specifically that the patient had an aortic injury, not a neurological injury, as Dr. Thomas had previously reported when requesting the transfer to University. Further, we conclude that the inferences that the ALJ made that related to Dr. Spengler's prior inconsistent statements were reasonably drawn from the evidence of record. For example, the ALJ reasonably deduced that the mistake in Dr. Spengler's emergency room report, reflecting that R.M. had a normal CT of both the chest and the abdomen, was a dictation error attributable to the fact that Dr. Spengler dictated the report at 4:00 a.m., several hours after Dr. Spengler spoke with Dr. Lucas. ALJ Decision at 17; I.G. Ex. 1 at 3-4. Moreover, normal CTs of both the chest and abdomen would have been inconsistent with Dr. Spengler's diagnosis of R.M.'s condition and with what Dr. Spengler told other individuals, and it would have "rule[d] out definitively any aortic pathology and any need for Dr. Lucas' services." Id. Thus, the ALJ logically concluded that Dr. Spengler would not have told Dr. Lucas that R.M. had a negative CT scan of the abdomen, which Dr. Spengler knew would have contradicted his diagnosis of R.M.'s emergency medical condition.

Further, we are not persuaded by St. Anthony's contentions about Dr. Spengler's veracity. We disagree, for example, that Dr. Spengler contradicted his direct examination about his conversations with Dr. Lucas on cross-examination. Dr. Spengler indeed used the term "essentially" to preface his description of the information he conveyed to Dr. Lucas about R.M.'s automobile accident, R.M.'s aortic injury and University's withdrawal of its decision to accept the transfer. Contrary to St. Anthony's argument, however, it appears that Dr. Spengler used the term "essentially" to convey that, while he could not recall his conversations with Dr. Lucas verbatim, the information that he conveyed to Dr. Lucas focused on R.M.'s aortic injury. Further, that Dr. Spengler testified on cross-examination that he also told Dr. Lucas that R.M. had a normal CT of the chest and back (which Dr. Spengler believed based on what Dr. Thomas had told him), a C6 spinous process fracture, broken ribs and laceration to the head, does not contradict that the focus of the information Dr. Spengler conveyed involved the life-threatening vascular injury which motivated Dr. Spengler to speak to Dr. Lucas in the first place.

Excepting to FFCL 6.b., St. Anthony submitted that the ALJ incorrectly found Dr. Lucas' testimony not to be credible. St. Anthony pointed out that Dr. Lucas testified that Dr. Spengler described R.M. as having multi-trauma injuries, including a spinal injury, an inability to move his legs, broken ribs and pulmonary contusions. St. Anthony Br. at 144-45, citing Tr. at 798-99. Dr. Lucas also testified that Dr. Spengler reported that R.M. had a negative abdominal CT scan, that Medi-Flight was at Shawnee, and that University had previously accepted the patient, but then withdrew its acceptance. Tr. at 802, 804, 806-09. Like Dr. Boggs, St. Anthony wrote, Dr. Lucas believed that Dr. Spengler described R.M. as "a multi-trauma patient with neurological and possibly vascular injuries that needed to see general surgeons, then specialty surgeons at University Hospital." St. Anthony Br. at 146.

St. Anthony argued that "[t]he ALJ stated that Dr. Lucas wrote a letter that didn't mention 'CT Scan' so he was not credible." St. Anthony Br. at 146. This contention appears to relate to the ALJ's conclusion, discussed above, that "Dr. Lucas' assertion that Dr. Spengler related to him on April 8, 1995 that R.M. had a negative CT scan of his chest and abdomen, thereby misleading Dr. Lucas into believing that there was no vascular injury to R.M., is not true." ALJ Decision at 17. The ALJ observed that, because a negative CT scan of R.M.'s abdomen would have ruled out any need for Dr. Lucas' services, "[o]ne would expect that Dr. Lucas would have asserted consistently that Dr. Spengler told him that there was a negative CT scan of R.M.'s abdomen if in fact that is what Dr. Spengler told Dr. Lucas . . . ." Id. The ALJ noted, however, that Dr. Lucas did not mention Dr. Spengler's alleged report of a negative CT of R.M.'s chest and abdomen when, in October 1995, Dr. Lucas made his first statement of record about what happened on the evening of April 8, 1995. That statement is found in a letter that Dr. Lucas wrote to St. Anthony's medical director on October 23, 1995. I.G. Ex. 27. St. Anthony contended that the October 23, 1995 letter, stating that "as described to me, the patient had the potential for multi-organ system trauma involving both vascular and general surgical problems," was, in fact, consistent with Dr. Lucas' hearing testimony.

We are not persuaded by St. Anthony's argument, and we uphold the ALJ's conclusion that Dr. Lucas' hearing testimony was not credible. The ALJ based this finding on numerous grounds, reasonably drawn from substantial evidence on the record. First, the ALJ accurately summarized Dr. Lucas' testimony about what Dr. Spengler allegedly communicated to Dr. Lucas on the night at issue: a "recitation of R.M.'s signs and symptoms [that] was so incoherent, inaccurate, and so incomplete as to make it appear unclear or unlikely that R.M. was suffering from a life-threatening vascular injury." ALJ Decision at 16 (Tr. at 799-804). Dr. Lucas' testimony, the ALJ noted, was contradicted by "Dr. Spengler's entire focus from the moment he first examined R.M."--to transfer R.M., as quickly as possible, to a facility where he could receive emergency vascular surgery. ALJ Decision at 16. That goal, the ALJ wrote, drove Dr. Spengler: 1) to call the physicians at University to notify them that R.M. was suffering from a vascular, not neurological, injury; 2) to change the means of transport from ground ambulance to Medi-Flight; 3) to contact St. Anthony Hospital; and 4) to speak with Dr. Lucas himself. The ALJ also observed that Dr. Lucas' testimony that Dr. Spengler gave a "panic-stricken account of R.M.'s condition" was inconsistent with Reverend Sparks' description of Dr. Spengler's demeanor as "having his emotions under control." ALJ Decision at 18, citing Tr. at 227.

That Dr. Lucas' hearing testimony lacked credibility, the ALJ concluded, was further evidenced by his implausible account of his conversation with Dr. Buffington on the night of April 8, 1995. Dr. Lucas testified at the hearing that Dr. Buffington related no information about Shawnee's patient to him. Tr. at 798. The ALJ observed that this testimony is contradicted by the summary of Dr. Buffington's April 1996 interview, which reflects not only that Dr. Buffington told Dr. Lucas enough about the patient for Dr. Lucas to know that his services were needed, but also that Dr. Buffington conveyed sufficient information for Dr. Lucas to decide that he likely would not take the case before he ever even spoke to Dr. Spengler. ALJ Decision at 16, citing I.G. Ex. 6, at 21-22.

We also conclude that the ALJ reasonably inferred from other evidence of record that, contrary to Dr. Lucas' hearing testimony, Dr. Spengler never told Dr. Lucas that there had been a negative CT of R.M.'s abdomen. ALJ Decision at 17, citing Tr. at 432-33. As the ALJ observed, a negative CT of R.M.'s abdomen would have exonerated Dr. Lucas of any potential responsibility to treat R.M. Thus, the ALJ logically concluded that the absence of this specific information in Dr. Lucas' April 8, 1995 letter strongly suggests that Dr. Spengler never told Dr. Lucas that there was such a test result. Accordingly, it was reasonable for the ALJ to infer that "Dr. Lucas' assertion that Dr. Spengler [made the statement] appears to be an opportunistic reliance by Dr. Lucas on an error that Dr. Spengler made in his emergency room report . . . that Dr. Lucas only became aware of . . . at a later date." ALJ Decision at 17.

The final reason that the ALJ cited to support his conclusion that Dr. Lucas' hearing testimony was not credible was "[t]he extremely self-serving quality of Dr. Lucas' testimony," which, the ALJ noted, consisted of disparaging characterizations of Dr. Spengler's qualifications, professionalism, and performance on the evening of April 8, 1995. ALJ Decision at 18. We concur with the ALJ's assessments of Dr. Lucas' testimony. For example, Dr. Lucas testified that "[Dr. Spengler] didn't really know what he was talking about, was unsure of what was important, . . . kind of like a third-year medical student trying to tell you what was wrong with a patient he really didn't know." Tr. at 800. Dr. Lucas also stated that "right away, I kn[e]w he ha[d] no clue about aortic injuries." Tr. at 801. Dr. Lucas went so far as to state: "I think [Dr. Spengler] wanted that patient out of his emergency room, but he was unwilling to do what was best for the patient, which was to call back to University Hospital, because . . ., he was afraid of his superiors. You know, I would think that patient care would come first." Tr. at 830. These representative statements, we conclude, support the ALJ's conclusion that Dr. Lucas appears to have described "Dr. Spengler as an incompetent and bumbling amateur" in order to "deflect scrutiny from his own actions" on the night of April 8, 1995. ALJ Decision at 18. Moreover, Dr. Lucas' account of Dr. Spengler is contradicted by the observations of others who assessed the care that Dr. Spengler provided and those who were in the Shawnee emergency room on the evening at issue. See, e.g., Tr. at 114-15, 227, 230. Dr. Lucas' testimony is also internally inconsistent in that he acknowledged that he could tell that Dr. Spengler wanted R.M. out of his emergency room, but he denied that Dr. Spengler was making a transfer request to St. Anthony. Tr. at 830.

In support of FFCL 10, the ALJ described why he concluded that, based on the actions and statements of Drs. Buffington and Lucas, St. Anthony was responsible under EMTALA for refusing the request to transfer R.M. St. Anthony excepted to FFCL 10 on several grounds,(19) including that "[t]he ALJ's findings of fact with regard to agency" were not supported by substantial evidence and reflected errors of law. St. Anthony Br. at 121. St. Anthony contended that only Nurse Burkle and Dr. Buffington were agents of St. Anthony, and that the I.G. was required to "establish that either Ms. Burkle or Dr. Buffington refused to accept the transfer of R.M." Id. at 193. Neither of these individuals, St. Anthony argued, ever received a request for R.M.'s transfer or denied such a request. Moreover, St. Anthony argued, Dr. Buffington did not delegate his authority to accept or reject R.M.'s transfer to Dr. Lucas, and Dr. Buffington never communicated to Dr. Spengler that it was Dr. Lucas' decision whether to accept the transfer. As the ALJ recognized, St. Anthony wrote, Dr. Lucas was never a formal agent of St. Anthony. St. Anthony Br. at 122.

Had the ALJ applied the governing agency law, St. Anthony continued, he would not have concluded that St. Anthony violated section 1867(g). St. Anthony submitted that under Oklahoma precedent, an agent, such as Dr. Buffington, cannot delegate his powers to another, such as Dr. Lucas, without the principal's consent, as the ALJ suggested occurred. Further, St. Anthony contended, neither the medical staff bylaws nor the delineation of Dr. Lucas' privileges at St. Anthony granted him authority to reject or accept a patient transfer request.(20)

St. Anthony also argued that "EMTALA does not establish hospital liability for on-call physicians." St. Anthony Br. at 191. Citing a series of federal court decisions, led by Lebron v. Ashford Presbyterian, 995 F.Supp. 241 (D. Puerto Rico 1998), St. Anthony appeared to contend that, because "Congress did not include physicians within the scope of liable parties" under section 1867(g), it would be improper to hold a hospital liable under section 1867(g) on the basis of an act by one of its on-call physicians. St. Anthony Br. at 192. Further, St. Anthony wrote, legislative history evidences that "Congress continues to intentionally exclude on-call physicians within the coverage of section (g)." Id.

We reject St. Anthony's contentions and uphold FFCL 10 of the ALJ decision. First, for the reasons discussed above, we conclude that substantial evidence on the record as a whole supports the ALJ's underlying factual findings that: Dr. Buffington knew that Shawnee requested to transfer R.M. to St. Anthony to be treated by a vascular surgeon; Dr. Buffington conveyed this information to Dr. Lucas; Dr. Buffington deferred to Dr. Lucas' judgment as to whether to accept the request; Dr. Spengler requested Dr. Lucas to perform vascular surgery on R.M.; and Dr. Lucas denied the request by refusing to provide care to R.M.

We additionally conclude that the ALJ did not err as a matter of law in holding St. Anthony responsible for denying the transfer request based on the actions, statements and omissions of Drs. Buffington and Lucas. As the Board observed in another case involving EMTALA: "As a corporate entity, a hospital can act only through individuals and can only know facts vicariously through those individuals." Michael L. Burditt, DAB No. 1167 at 51 (1990), aff'd 934 F.2d 1362 (5th Cir. 1991). See also H.R.Rep. 101-247 at 1034-35 ("The Committee would note that hospitals have always been liable for the acts and omissions of the hospital's agents, including physicians who provide examination and treatment at the hospital . . . .") Thus, a hospital may be held responsible for violating section 1867(g) if an individual to whom the hospital has assigned the responsibility to determine whether to accept a transfer request denies a request for an appropriate transfer under section 1867(g).

Further, under the well-settled principle of apparent or ostensible agency,

[o]ne who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Restatement (Second) of Agency (1958), § 267. Based on this principle, Oklahoma law recognizes that a hospital can be held vicariously liable for the negligence of a physician working at the hospital who is an independent contractor when there is no preexisting physician-patient relationship and the patient looks solely to the hospital for treatment. See, e.g., Coleman v. McCurtain Memorial Medical Management, Inc., 771 F.Supp. 343 (E.D. Okla. 1991); Weldon v. Seminole Municipal Hospital, 709 P.2d 1058, 1059-1060 (1985). Accordingly, a hospital with specialized capabilities or facilities may be held responsible for violating section 1867(g) when an individual whom the hospital holds out as having the authority to respond to transfer requests denies a request for an appropriate transfer.

We further note that neither the statute nor the regulations designate the types of individuals to whom a hospital may assign the responsibility to handle transfer requests. Rather, the Secretary stated in the preamble to the interim final EMTALA rule: "[I]t is properly the receiving hospital's decision as to who may consent to receive patients and how to implement this policy among its staff." 59 Fed. Reg. at 32,106, 32,115. In light of the potential variation among hospitals as to the types of individuals who may respond to transfer requests, when an individual acting on behalf of a transferring hospital requests to transfer a patient to a hospital with specialized capabilities or facilities, it would not be unreasonable for that individual to expect that a response by an on-call physician whom the second hospital holds out as its authorized agent is a decision attributable to the second hospital itself.

In light of the foregoing principles of agency law and the discretion that EMTALA grants hospitals to assign the responsibility to respond to transfer requests, we conclude that the ALJ did not err in determining that the actions, statements and omissions of Drs. Buffington and Lucas constituted a refusal by St. Anthony of Shawnee's request to transfer R.M. As the ALJ found, Dr. Buffington, whom St. Anthony itself acknowledged was an agent of the hospital, indicated to both Dr. Spengler and Dr. Lucas "that it would be up to Dr. Lucas whether or not R.M. would be treated at [St. Anthony]." ALJ Decision at 25.(21) Further, St. Anthony's emergency clinical service schedule for March and April 1995 showed that Dr. Lucas was on-call for the thoracic surgery clinical service. I.G. Ex. 16. Notably, section 489.20(r) of the regulations required St. Anthony to maintain this list in its capacity as both a transferring and receiving hospital. Moreover, St. Anthony represented that Dr. Lucas was authorized to admit patients to its facilities. St. Anthony Ex. 18; See also I.G. Ex. 6, at 16-17, I.G. Ex. 13, at 3. Consequently, we conclude that St. Anthony held out Dr. Lucas as having the authority to respond to the request to transfer R.M. and that Dr. Spengler reasonably believed that Dr. Lucas' refusal "was as much a denial of a transfer request as if Dr. Buffington had explicitly refused the request." ALJ Decision at 25.

We further conclude that St. Anthony's argument concerning whether EMTALA imposes liability based on the acts of on-call physicians to be inapposite. The cases that St. Anthony cited involved the question whether, under the civil enforcement provisions of EMTALA, the Act provides that an injured person may bring a civil cause of action against an individual physician. As the ALJ properly noted these cases "say[] nothing about whether a hospital may be held liable under [section 1867(g)] for actions that are taken on behalf of the hospital by that physician." ALJ Decision at 26.

Further, we note that contrary to St. Anthony's assertions, EMTALA expressly holds hospitals liable for certain actions of on-call physicians. For example, section 1867(d)(1)(C) of the Act provides that a hospital may be held liable for an on-call physician's refusal or failure to come in to the hospital when his or her services are necessary to stabilize an emergency patient. See also 59 Fed. Reg. at 32,100, 32,115.

Based on the foregoing analysis, we uphold FFCLs 5, 6, 6.a., 6.b., 6.c., and 10.

(6) Whether Shawnee's Transfer Request Involved an "Appropriate Transfer"

FFCL 9. A transfer of R.M. to [St. Anthony] was appropriate

FFCL 9.a. Shawnee Regional Hospital provided treatment to R.M. which minimized the risks to R.M.'s health

FFCL 9.b. [St. Anthony] had available space and qualified personnel for the treatment of R.M.

FFCL 9.c. It is irrelevant whether [St. Anthony] agreed to accept the transfer of R.M. for purposes of deciding whether a transfer of R.M. was appropriate

FFCL 9.d. It is irrelevant whether Shawnee Regional Hospital sent to [St. Anthony] all medical records relating to R.M.'s emergency medical condition or whether Shawnee Regional Hospital provided [St. Anthony] with the name and address of any on-call physician at Shawnee Regional Medical Center who refused or failed to appear within a reasonable time to provide necessary stabilizing treatment to R.M.

FFCL 9.e. Shawnee Regional Hospital would have effected a transfer of R.M. to [St. Anthony] through qualified personnel and medical equipment.

Based on the wording of section 1867(g), the ALJ recognized that it was necessary to find that Shawnee's request involved an "appropriate transfer" in order to conclude that a section 1867(g) violation took place. The ALJ wrote that, while section 1867(g) incorporates the term "appropriate transfer," it does not explain the term's meaning. The ALJ recognized, however, that "appropriate transfer" is defined at section 1867(c)(2), "in the context of the prohibition in section 1867(c) against a transfer from a hospital of a non-stabilized patient." ALJ Decision at 20. Under the definition at section 1867(c)(2), an "appropriate transfer" is a transfer--

(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health . . . ;

(B) in which the receiving facility--
(i) has available space and qualified personnel for the treatment of the individual, and (ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment;

(C) in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, . . . ;

(D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and

(E) which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred.(22)

See also 42 C.F.R. § 489.24(d)(2). Noting that the definition "is not precisely apposite to the circumstance in which a hospital is asked to accept a transfer," the ALJ undertook to construe the criteria at section 1867(c)(2) "consistent" with the requirements of section 1867(g) "in order for the Act to make sense." ALJ Decision at 20-21. As reflected in the FFCLs repeated above, applying the harmonized provisions to the facts presented, the ALJ concluded that the transfer was appropriate.

(a) St. Anthony's exceptions to FFCL 9 and 9.a.

In its first three contentions excepting to the ALJ's conclusion that the transfer was appropriate, St. Anthony argued that: (1) the ALJ failed to apply all of the relevant provisions and regulations of the Act; (2) the ALJ's legal analysis was erroneous as he did not take into account the applicable case law; and (3) the ALJ erred in determining at FFCL 9.a. that Shawnee provided treatment to R.M. which minimized the risks to R.M.'s health. St. Anthony Br. at 159-174.

In support of these assertions, St. Anthony placed particular emphasis on subsection 1867(c)(2)(A) of the "appropriate transfer" definition, which states that a transferring hospital must provide medical treatment within its capacity to minimize risks to the patient's health. Based on this subsection, St. Anthony argued that the ALJ should have applied the definition of "capacity" at section 489.24(b) of the regulations, as he did in analyzing St. Anthony's capacity under section 1867(g). Specifically, St. Anthony contended that the ALJ should have determined:

(1) whether Dr. Spengler had the ability to accommodate RM's requested examination or treatment; (2) whether Dr. Spengler had the qualified staff available to treat RM;
(3) whether Shawnee Regional had the necessary beds available to accommodate RM; and (4) whether Shawnee Regional had all of the necessary equipment to treat RM.

St. Anthony Br. at 161. Further, based on the duty imposed on a transferring hospital in subsection 1867(c)(2)(A), St. Anthony argued that the ALJ should have made findings with respect to all of the other duties imposed on a transferring hospital by EMTALA, including the requirements at sections 1867(a) and (b). St. Anthony Br. at 161. In essence, St. Anthony argued that: 1) a transfer could not have been "appropriate" within the meaning of section 1867(g) if the requirements in sections 1867(a) and (b) were not met by the transferring hospital; 2) in this case, Shawnee/Dr. Spengler did not meet those requirements; and 3) consequently, a violation of section 1867(g) did not occur. St. Anthony also wrote that, insofar as "section 1395dd(c)(2)(A) [1867(c)(2)(A)] specifically indicates that a transfer is not appropriate unless the transferring hospital provides medical treatment within its capacity," the ALJ erred by failing to consider the host of "case law that addresses a transferring hospital's duties under the Act." St. Anthony Br. at 166.

As we noted in the introductory section of our analysis, St. Anthony attempted to add support to its contention that the ALJ should have evaluated whether the requirements at sections 1867(a) and (b) of EMTALA were met by Shawnee by reciting the general principles of statutory construction that "a court must choose a meaning that gives full effect to all of the provisions of the statute," and that "statutes must be construed so that their provisions are harmonious with each other." Id. at 162. St. Anthony additionally attempted to bolster its contentions by stating that "[i]t is well established that the core purpose of EMTALA was to impose on hospitals a legal duty to provide emergency care to uninsured patients prior to transferring them." (Emphasis in original.)(23) Id. at 163.

After positing that, in order to find St. Anthony in violation of section 1867(g), the ALJ first had to find that the screening and stabilization requirements at sections 1867(a)-(b) were met by Shawnee and Dr. Spengler, St. Anthony argued at considerable length that Dr. Spengler and Shawnee wholly failed to meet these requirements. Id. at 166-174. "Giving patients a 'once over' and then making phone calls to get them out of your ER was not what Congress had in mind when they created the 'appropriate medical screening exam' requirement," St. Anthony wrote of Dr. Spengler's actions. Id. at 167-68. Further, St. Anthony submitted, Dr. Spengler "did not do a number of procedures available to him within the capabilities of the hospital [such as a CT of the abdomen]."(24) Id. at 171, 173. "Importantly," St. Anthony argued, "if Dr. Spengler failed to conduct the screening exam, failed to provide further medical treatment within the capabilities of the hospital, or failed to conduct an adequate screening to detect the nature of RM's condition, the transfer would not be 'appropriate'." Id. at 171.

These arguments have no merit. First, St. Anthony erroneously interpreted section 1867(c)(2)(A) as requiring the ALJ, in the course of determining whether the requested transfer was appropriate, to analyze in detail Shawnee's staffing, patient census, and equipment on the evening of April 8, 1995, and to determine the maximum extent to which these resources could have been used to treat R.M. St. Anthony reached this conclusion by isolating the term "capacity" and interpreting it out of context. As noted above, section 1867(c)(2)(A) states that the transferring hospital must provide medical treatment, within its capacity, to minimize risks to the individual's health. Thus, when a hospital transfers an unstabilized individual because the benefits expected from the provision of appropriate treatment at another hospital outweigh the risks of the transfer, section 1867(c)(2)(A) operates on the assumption that, as in this case, a determination has already been made that the transferring hospital does not have the resources necessary to stabilize the patient. Recognizing the transferring hospital's lack of resources, section 1867(c)(2)(A) requires the transferring hospital, within the limitations of its available staff and equipment,(25) to minimize the risks to the patient's health in light of the anticipated transfer.

That the treatment a transferring hospital is required to furnish a patient under section 1867(c)(2)(A) should not be equated with all of the possible services that a hospital could provide the patient, is demonstrated by an example in this case: Though Dr. Spengler correctly determined that R.M. had a vascular emergency medical condition that could not be stabilized at Shawnee, St. Anthony contended that Dr. Spengler should have ordered an abdominal CT scan on R.M. because, among other reasons, Shawnee had the capacity--equipment and personnel--available to perform this test. The evidence and testimony, however, do not show that additional tests at Shawnee would have helped to minimize the risks posed to R.M.'s health. To the contrary, additional testing likely would have unnecessarily postponed R.M.'s transfer to a facility where he could be stabilized and definitively treated. Indeed, as noted above, St. Anthony's own expert witness testified that when a small hospital is presented with a patient exhibiting "signs and symptoms of a significant injury or condition that [it is] not capable of caring for," the hospital should transfer the patient as soon as possible to a facility able to provide definitive care rather than "spend time doing other diagnostic tests." Tr. at 614; see also Tr. at 585. Even Dr. Lucas testified that it would "waste time" to do additional CT scans at a hospital incapable of stabilizing a patient who clearly suffers from a vascular injury. Tr. at 817.

Accordingly, we reject St. Anthony's interpretation of section 1867(c)(2)(A), and conclude that the ALJ properly understood the provision as requiring "Dr. Spengler and Shawnee . . . [to] provide[] treatment to R.M. which minimized the risks to R.M.'s health" and for Dr. Spengler to "[do] for R.M. what he could to make R.M.'s condition as stable as possible." ALJ Decision at 21. Further contrary to St. Anthony's contentions, substantial evidence supports the ALJ's determination that Dr. Spengler provided treatment which minimized the risks to R.M.'s health in light of the need for transfer. As noted in the ALJ Decision, Dr. Spengler ordered the ground ambulance attendants to return R.M. to the Shawnee emergency room to address R.M.'s fluctuating blood pressure. Once the patient was returned, Dr. Spengler addressed R.M.'s blood pressure fluctuations by administering saline and transfusing the patient. Tr. at 348, 350-51. Most importantly, Dr. Spengler arranged for an air transport of R.M. to a hospital where the necessary surgery could be performed as quickly as possible, thereby further minimizing the risks of the transfer where time was of the essence.

We also reject St. Anthony's argument that based on section 1867(c)(2)(A), universally accepted rules of statutory construction, case law, and legislative intent relating to the original provisions of EMTALA, the ALJ should have determined whether Shawnee and Dr. Spengler met all of the requirements at 1867(a) and (b) of the Act. There is simply nothing explicit or implicit in the requirement at section 1867(c)(2)(A) that logically leads to the sweeping proposition asserted by St. Anthony. Moreover, as we discussed at length in the introductory section of our analysis, St. Anthony distorts the rules of statutory construction on which it attempts to rely and misrepresents the applicability of federal precedent. Further, while it is indeed well-established that the fundamental purpose of the original EMTALA provisions was to deter the practice of patient dumping, it is equally evident on review of the subsequent history of the Act that Congress found it necessary to amend EMTALA to address the related, though separate, problem of reverse-dumping in an entirely new section of the Act under the OBRA 89 amendments. We therefore conclude that a thorough analysis of whether a hospital violated section 1867(g) of the Act, is not, as a practical matter, dependent upon preliminary findings that the transferring hospital did, or did not, meet all of the requirements at sections 1867(a) and (b) of the Act.

(b) St. Anthony's Exception to FFCL 9.b.

St. Anthony additionally argued that the ALJ erred in concluding at FFCL 9.b. that, based on section 1867(c)(2)(B)(i) of the Act, St. Anthony had available space and qualified personnel for the treatment of R.M. The ALJ wrote in support of this FFCL that, as he discussed at FFCLs 7 and 8, St. Anthony had the specialized capabilities as well as the capacity to treat R.M. Consequently, he determined, St. Anthony "had available space and qualified personnel for the treatment of R.M." ALJ Decision at 21. Excepting to FFCL 9.b., St. Anthony cited its exceptions to FFCLs 2 and 3 of the ALJ Decision. St. Anthony also wrote that substantial evidence on the whole record does not support the ALJ's finding at FFCL 9.b.

We concur with the ALJ that "available space" and "qualified personnel" are subsumed by the concepts of specialized capabilities and capacity. Accordingly, based on our review of FFCLs 7 and 8, at sections IV.B.(2) and (3) of this decision, we conclude that substantial evidence on the record supports the ALJ's determination that St. Anthony had the available space and qualified personnel to treat R.M. Further, based on our evaluation of St. Anthony's exceptions to FFCLs 2 and 3, we reject its exception to FFCL 9.b.

(c) St. Anthony's Exception to FFCL 9.c.

St. Anthony also excepted to FFCL 9.c. of the ALJ Decision, wherein the ALJ concluded, with respect to section 1867(c)(2)(B)(ii) of the Act, that it was irrelevant whether St. Anthony agreed to accept the transfer of R.M. for purposes of deciding whether the transfer of R.M. was appropriate. That subsection of the "appropriate transfer" definition provides that as a prerequisite to transfer "the receiving facility . . . has agreed to accept transfer of the individual and to provide the requested treatment." The ALJ wrote that a literal application of section 1867(c)(2)(B)(ii) in a section 1867(g) case would produce an absurd result--specifically, a hospital that wrongfully refused to accept a transfer under section 1867(g) could use the provision at 1867(c)(2)(B)(ii) as a complete defense, thus entirely defeating the purpose of section 1867(g). Accordingly, the ALJ concluded that section 1867(c)(2)(B)(ii) should not be applied in a section 1867(g) case.

While St. Anthony did not take exception to the ALJ's "literal interpretation" of section 1867(c)(2)(B)(ii), it nevertheless argued that the ALJ should have similarly "appl[ied] a literal interpretation to other provisions in section [1867(c)(2)]." St. Anthony Br. at 175. Further, St. Anthony argued that the ALJ should have looked to the fundamental purpose of this element of an "appropriate transfer," which is "proper communication." Id. at 177. Accordingly, St. Anthony argued that the ALJ should have evaluated whether the transferring physician, Dr. Spengler, properly communicated to the potential receiving hospital the condition of the patient and made a clear transfer request.

We conclude that the ALJ did not err in determining that section 1867(c)(2)(B)(ii) was inapplicable. The Act's definition of an "appropriate transfer" is not found in the general definition section of EMTALA. Rather, it appears in the context of the requirements that govern a hospital's actions when it transfers an unstabilized patient. Thus, the criteria in section 1867(c)(2) provide guidance as to the meaning of "appropriate transfer" in this case only to the extent that they can be harmonized with section 1867(g). Recognizing that applying section 1867(c)(2)(B)(ii) in the context of an alleged reverse- dumping case would eviscerate section 1867(g), the ALJ properly determined that the subsection should not be applied here.

The same considerations apply to St. Anthony's argument that the ALJ should have interpreted all of the requirements in section 1867(c)(2) as he "literally interpret[ed]" subsection 1867(c)(2)(B)(ii). Accordingly, we conclude that the ALJ properly applied the subsections to the extent that they could be harmonized with section 1867(g). Further, St. Anthony's attenuated argument that the ALJ should have read section 1867(c)(2)(B)(ii) as setting forth a "proper communication" requirement is without basis. Whether the transferring hospital sufficiently communicated its transfer request is subsumed in a proper evaluation of the 1867(g) criterion, whether a request for transfer was made. As we discussed at sections IV.B.(4) and (5), substantial evidence on the record supports the ALJ's finding that Shawnee requested to transfer R.M. to St. Anthony for the purpose of receiving emergency vascular surgery.

(d) St. Anthony's Exception to FFCL 9.d.

St. Anthony also submitted that the ALJ erred in determining at FFCL 9.d. that it was irrelevant whether Shawnee sent St. Anthony all of the medical records relating to R.M.'s emergency medical condition. In this FFCL, the ALJ found that, like the requirement of section 1867(c)(2)(B)(ii), the criterion governing the transmission of medical records under section 1867(c)(2)(C) does not apply in a case involving a potential violation of section 1867(g). Specifically, the ALJ wrote, this provision does not address the issue of when a hospital may refuse to accept a transfer request. Moreover, the ALJ concluded, even if section 1867(c)(2)(C) somehow applied in this case, it would be irrelevant to the extent that "discussions between Shawnee . . . and [St. Anthony] . . . never reached the point where paperwork became an issue." ALJ Decision at 22. Futhermore, the ALJ concluded, "[w]hether or not Shawnee . . . completed necessary paperwork in connection with the proposed transfer of R.M. to [St. Anthony] was not a factor in [St. Anthony's] rejection of the requested transfer . . . ." Id.

St. Anthony argued that the ALJ failed to acknowledge that section 1867(c)(2)(C) requires the transferring hospital to send several types of medical records, including a physician certification. The certification must state that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of treatment at another medical facility outweigh the risk to the individual of the transfer. The certification also must include a summary of the risks and benefits upon which the certification is based. 42 C.F.R. § 489.24(d). St. Anthony contended that Dr. Spengler failed to "provide a summary of the risks and benefits upon which he based his certification" in the certification that was sent to Presbyterian Hospital. Therefore, according to St. Anthony, he violated the Act. St. Anthony Br. at 179-80. St. Anthony also submitted that if the ALJ had properly applied section 1867(c)(2)(C), "Dr. Spengler's actual charting and examination of RM would be put under scrutiny." St. Anthony Br. at 179. Because "the proper charting and certification was not done," St. Anthony contended, it "did not have a duty to accept the transfer of RM as a matter of law." Id. at 180.

We disagree. The ALJ's analysis of the applicability of subsection 1867(c)(2)(C) in this case, like his analysis of the other criteria of section 1867(c)(2), took into consideration the limited extent to which he should rely on the subsection (c)(2) definition of "appropriate transfer." To conclude in a case involving an alleged violation of section 1867(c) that a hospital appropriately transferred an unstabilized patient, an adjudicator must find, based on a retrospective analysis, that all of the criteria at section 1867(c)(2) were met by the transferring entity. Notably, these criteria involve not only the transferring hospital's responsibilities up to and including the point in time when it requested a transfer, but also the transferring hospital's responsibilities subsequent to that time, which include sending relevant medical records to the receiving facility along with the patient(26) and ensuring that the transfer is effected through qualified personnel and transportation equipment.

In contrast, where it is alleged that a potential receiving hospital violated section 1867(g) by refusing to accept an appropriate transfer request, the patient was never transported to the facility alleged to have committed the EMTALA violation. Consequently, the transferring hospital most likely would not have sent the individual's medical records to the hospital that denied the requested transfer, as was the case here. Because a potential receiving hospital must make a determination whether to accept or reject a transferee before it has an opportunity to examine the individual and all of his or her medical records from the transferring facility, it follows that whether a proposed transfer was "appropriate" within the meaning of section 1867(g) should not be determined on a fully retrospective basis, but must instead be based on the events that transpired up to the time of the requested transfer and on the information available to the potential receiving hospital at the time of the request. Accordingly, we conclude that the ALJ did not err in determining that section 1867(c)(2)(C), which imposes a requirement on the transferring hospital that chronologically relates to the period after a requested transfer has been accepted, is inapposite here.

(e) St. Anthony's Exception to FFCL 9.e.

St. Anthony also took exception to FFCL 9.e. of the ALJ Decision, submitting that the ALJ erred in concluding that Shawnee would have effected a transfer of R.M. to St. Anthony through qualified personnel and medical equipment. St. Anthony argued that the ALJ's finding was purely speculative. Moreover, St. Anthony wrote, the evidence showed that Medi-Flight was forbidden to fly to St. Anthony and that no arrangement existed which would have allowed the service to have landed at St. Anthony.(27) St. Anthony added that while Dr. Spengler was aware of the contract problem between St. Anthony and Medi-Flight, he did nothing to address this issue. St. Anthony noted that Nurse Burkle testified that the Medi-Flight problem presented an obstacle to the transfer. Further, St. Anthony wrote, Dr. Lucas knew of the Medi-Flight problem and "that this would delay any arrangements for RM should he be transferred to St. Anthony Hospital." Id. at 182 (citing Tr. at 827-29). St. Anthony posited that a transfer could not be appropriate within the meaning of subsection (g) until the problem was resolved, and because the transportation was never "actually set up, [St. Anthony] had no duty to accept R.M." Id. at 183.

We conclude that substantial evidence on the whole record supports the ALJ's finding that Shawnee would have effected a transfer of R.M. to St. Anthony through qualified personnel and medical equipment had St. Anthony accepted the transfer request. Both the I.G.'s and St. Anthony's expert witnesses provided testimony supporting the ALJ's finding that transporting R.M. by a helicopter ambulance "was the only appropriate way to have transported R.M. given his emergency condition." ALJ Decision at 23. Tr. at 122-23, 126, 599-600. As the ALJ noted, the Medi-Flight paramedics were highly qualified and the transportation was much quicker than ground ambulance. Id. Further, though Medi-Flight did not have a contract to land at St. Anthony, Aaron Wade, the Medi-Flight employee who attended to R.M. on the night in question, testified that he believed his supervisor, Dennis Martin, would have granted the clearance to land at St. Anthony under the circumstances. Tr. at 458-59, 481. In addition, Dennis Martin himself testified that he would have authorized the Medi-Flight pilot to land at St. Anthony. I.G. Ex. 44 at 16-18. Moreover, I.G. exhibits 35 and 36 demonstrate that Medi-Flight has, in unusual circumstances, flown to hospitals with which it has had no contract, including St. Anthony. Accordingly, the evidence of record supports the ALJ's inference that while the lack of a contract between St. Anthony and Medi-Flight during the night in question posed an obstacle to R.M.'s transport to St. Anthony, this obstacle was not insurmountable.

Substantial evidence also supports the ALJ's conclusion that the question whether Medi-Flight would have flown to St. Anthony was moot because it did not impact St. Anthony's denial of Shawnee's transfer request. As reflected in his April 1996 interview statement, the only impediment to accepting the transfer request in Dr. Buffington's view was whether Dr. Lucas would accept the patient. Further, the ALJ stated that while Dr. Lucas testified at the hearing that one of the reasons why he declined to treat R.M. was that Medi-Flight would not land at St. Anthony, this testimony was not credible. For the reasons discussed above, we conclude that the ALJ's evaluation of Dr. Lucas' hearing testimony is well-reasoned and supported by the record. Accordingly, we uphold the ALJ's determination that the lack of a contract between Medi-Flight and St. Anthony did not influence St. Anthony's rejection of the transfer request.

We further reject St. Anthony's argument that the ALJ erred as a matter of law in failing to recognize that a transfer could not be appropriate within the meaning of subsection (g) until the Medi-Flight problem was completely resolved and that, consequently, St. Anthony had no legal duty to accept R.M. Reflecting the chronological sequence in which Congress set forth the appropriate transfer criteria at section 1867(c)(2), a transferring facility logically would secure an acceptance of a transfer from a receiving hospital (section 1867(c)(2)(B)(ii)) before gathering together all of the medical records to accompany the patient to the receiving hospital (section 1867(c)(2)(C)) or finalizing arrangements to engage the proper personnel and transportation equipment necessary to effectuate the transfer (section 1867(c)(2)(D)). Because the determination whether a proposed transfer was appropriate under section 1867(g) must be determined based on the events that transpired up to the time of the requested transfer and on the information available to the potential receiving hospital at the time of the request, it follows that the criteria at section 1867(c)(2)(C) and (D) are inapposite here.

(f) St. Anthony's contention that the ALJ erred in not applying "medical judgment" to his analysis of whether the transfer of R.M. was appropriate

St. Anthony also contended that the ALJ erred in failing to recognize that the exercise of "medical judgment must play a role in determining whether there was an appropriate transfer." St. Anthony Br. at 184. Specifically, St. Anthony argued that its employees and Dr. Lucas exercised sound medical judgment when they "assess[ed] RM's signs and symptoms, as presented, and use[d] their informed judgment on determining what [was] in his best interests." Id. at 186. Because Dr. Spengler "misrepresented crucial facts concerning RM's condition, i.e. CT of chest and abdomen were normal," to Dr. Lucas, St. Anthony wrote, "Dr. Lucas determined that RM was a multi-trauma patient that would be best served by going to University Hospital." Id. at 186-87. Citing numerous federal cases that have involved whether a hospital met the "appropriate screening" requirement of section 1867(a), St. Anthony wrote that "whether Dr. Lucas' diagnosis and/or medical opinion was medically sound, despite the outcome, is not an issue within the scope of EMTALA." (Emphasis in original.) Id. at 188.

St. Anthony's argument fails to acknowledge that the ALJ appropriately considered the exercise of medical judgment in rendering his decision. In the preamble to the EMTALA interim final rule, the Secretary addressed how the EMTALA patient transfer provisions permit an adjudicator to take into account the exercise of medical judgment. Responding to a comment suggesting that the "appropriate transfer" requirements at 42 C.F.R. § 489.24(d)(2) be made more specific, the Secretary wrote:

We decline the invitation to attempt to define in advance all circumstances making the transfer of an unstabilized individual "appropriate." There will be many medical emergencies arising in a variety of settings. The proper handling of those emergencies will depend upon the resources available and the exercise of medical judgment focused on the best interest of the individual's health and safety. We find the broad guidelines offered by Congress in section 1867(c)(2) of the Act sufficiently specific to guide the exercise of that discretion and our evaluation of cases in which dumping is alleged.

59 Fed. Reg. at 32,104. Guided by the Secretary's prior interpretations of the Act, we conclude that the exercise of medical judgment indeed plays a role in determining whether a transfer is appropriate, but that it should be addressed through the criteria already established by Congress at section 1867(c) of the Act. Thus, when analyzing whether a transfer was appropriate, an adjudicator should consider whether the physicians involved in the transfer exercised medical judgment in deciding not only that the benefits expected from the transfer did or did not outweigh the risks to the patient, but also that each of the applicable criteria listed at section 1867(c)(2) was, or was not, met. Accordingly, in the context of a section 1867(g) case, it is appropriate to consider the informed medical judgment of both the transferring physician(s) and potential receiving physician(s). We note that as a practical matter, however, any hospital with specialized capabilities or facilities that refuses a request to transfer an unstabilized patient risks violating section 1867(g) to the extent that it chooses to second-guess the medical judgment of the transferring hospital.

The ALJ Decision properly took into account the role of medical judgment in this case and specifically responded to St. Anthony's argument about Dr. Lucas' alleged informed medical judgment. As reflected in FFCL 2, the ALJ appropriately considered the exercise of medical judgement by Dr. Spengler, who had the best opportunity to observe and evaluate R.M.'s condition. Finding Dr. Spengler's account of the matter credible, the ALJ concluded that Dr. Spengler determined that R.M. had suffered an injury to his aorta and needed to be transferred to a facility where he could receive emergency vascular surgery. The ALJ, however, rejected on factual grounds St. Anthony's contention that Dr. Lucas exercised sound medical judgment in deciding that the proposed transfer would not be suitable. That is, the ALJ found not to be credible Dr. Lucas' hearing testimony that Dr. Spengler reported incorrect information about R.M.'s condition, leading Dr. Lucas to conclude that R.M. was a "multi-trauma" patient, and that, consequently Dr. Lucas was not capable of treating R.M. As we discussed above, the ALJ's determination as to Dr. Lucas' lack of credibility is supported by inferences reasonably drawn from the evidence of record. Thus, the ALJ properly rejected St. Anthony's contentions as to the role that Dr. Lucas' alleged medical judgment should play in this matter.

Based on the foregoing discussion, we uphold FFCLs 9, 9.a., 9.b., 9.c., and 9.d.

(7) St. Anthony's Affirmative Defenses(28)

FFCL 11. [St. Anthony's] affirmative defenses are without merit.

FFCL 11.b. [St. Anthony] was not relieved of its duty to accept a transfer of R.M. by the fact that University Hospital had previously accepted a transfer request for R.M.

FFCL 11.c. The I.G. does not have the burden of proving that [St. Anthony] gave disparate treatment to R.M.

FFCL 11.d. [St Anthony] did not prove that the I.G. seeks to have the Act enforced in an arbitrary or inconsistent way.

Excepting to FFCL 11.b., St. Anthony submitted on appeal that the ALJ failed to recognize that, applying relevant case law, University had already accepted the transfer of R.M. by the time Dr. Spengler called St. Anthony. Under section 1867(a), St. Anthony noted, if an individual comes to a hospital's emergency department and a request is made for treatment, the hospital must provide for an appropriate medical screening examination of the individual. St. Anthony Br. at 75. Under Madison v. Jefferson Parish Hospital Service District No.1, 1995 WL 396316 (E.D. La 1995), St. Anthony alleged, an individual "comes to" a hospital's emergency department when a hospital-owned and operated ambulance responds to a call to transport the individual. In this case, St. Anthony argued, Medi-Flight was owned and operated by University, and R.M. became University's patient when Mr. Wade, the Medi-Flight paramedic, assumed care of R.M. while preparing the patient for transport to University. Accordingly, St. Anthony wrote, University was obligated to conduct an appropriate screening examination of R.M., to stabilize him, and to meet the appropriate transfer requirements of section 1867(c)(2), before R.M. could be transferred to St. Anthony. University's failure to meet its obligations, St. Anthony suggested, absolved St. Anthony of any responsibility under EMTALA.

We reject this argument and conclude that the ALJ did not err in determining that St. Anthony was not relieved from its duty under section 1867(g) on the basis of University's actions on the night of April 8, 1995. As the ALJ correctly noted, St. Anthony's argument rests on an erroneous construction of the relevant regulation and case law, and an inaccurate characterization of the facts in this case. Section 489.24(b) of the regulations provides that the phrase "comes to the emergency department" means--

with 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). . . .

Thus, the regulation provides as a general rule that once an individual has been loaded onto an ambulance owned and operated by a particular hospital, the "presentment" requirement of section 1867(a) has been met. St. Anthony cited Madison, 1995 WL 396316 (E.D.La.), to support the contention that "the 'comes to' requirement" is satisfied as soon as a hospital-owned ambulance responds to a call. St. Anthony Br. at 76-77. We note, however, that in Madison, the ambulance that was owned and operated by the hospital/defendant not only responded to the call, but actually transported the patient to a second hospital. Thus, St. Anthony mischaracterized the holding in that decision.

Further, substantial evidence on the record supports the ALJ's finding (ALJ Decision at 28) that R.M. remained Dr. Spengler's and Shawnee's patient during the entire period he was in the Shawnee emergency room. While Medi-Flight was owned and operated by University, and though Mr. Wade assisted Dr. Spengler in treating R.M. once Medi-Flight arrived at Shawnee, R.M. was not moved onto the helicopter until after University had withdrawn its decision to accept R.M. and Presbyterian had accepted the transfer. Tr. at 466, 487. Thus, R.M. had not been on University property when Dr. Spengler requested to transfer R.M. to St. Anthony. Accordingly, the ALJ properly observed that "[t]he transfer of R.M. was from Dr. Spengler's care and from Shawnee Regional Hospital and not University Hospital." ALJ Decision at 28.

Further, as the ALJ recognized, the Act neither explicitly provides, nor implicitly suggests, that a potential receiving hospital may be relieved of its responsibility to accept an appropriate transfer under section 1867(g) on the ground that another hospital improperly withdrew its prior acceptance of the transfer and/or on the basis that the other hospital would, under ordinary circumstances, be better suited to care for the patient. ALJ Decision at 29.

Excepting to FFCL 11.c. of the ALJ Decision, St. Anthony contended that the ALJ failed to recognize any of the applicable case law on the issue whether it treated R.M. disparately. St. Anthony wrote that courts have used the fundamental purpose of EMTALA, to prevent patient dumping, to analyze alleged violations of the Act "by determining whether a hospital treated an emergency patient differently than another similarly situated patient." St. Anthony Br. at 213-14. Further, St. Anthony submitted, courts have interpreted the word "appropriate," which appears in section 1867(g), to mean that a patient should be afforded the same level of treatment provided to patients in similar circumstances. St. Anthony additionally argued that the problem which Congress intended to address in section 1867(g), as evidenced by its title, "nondiscrimination," was discriminatory treatment by the hospital of unstable emergency patients. Id. at 199, 214. A proper review of whether R.M. was treated disparately, St. Anthony wrote, would have required the ALJ to consider St. Anthony's policies governing transfers and whether the hospital followed its own procedures. Thus, St. Anthony charged, the ALJ erroneously concluded that the hospital's transfer policies were irrelevant.

We reject these arguments and conclude that the ALJ was not required to analyze whether St. Anthony treated R.M. disparately from similarly situated patients. The federal court decisions that St. Anthony cited to support its argument involved the meaning of the term "appropriate medical screening examination," as used in section 1867(a) of the Act. These cases are inapposite to the immediate matter, as reflected, for example, in the analysis of the Tenth Circuit Court of Appeals decision addressing the "appropriate medical screening examination" issue, Repp v. Anadarko Municipal Hospital, 43 F.3d 519 (1994). In Repp, the court noted that Congress did not define the term "appropriate medical screening examination" in the statute. Accordingly, the court looked to how the term was used in the context of section 1867(a):

The phrase that modifies "appropriate medical screening" reveals that the requisite standard, far from being uniform, varies with the particular conditions of each individual emergency room. Section 1395dd(a) does not require a hospital to provide a medical screening in the abstract, but one that is appropriate "within the capability of the hospital's emergency department". . . .

Id. at 522. Thus, following several other circuits, the Tenth Circuit in Repp rejected the proposition that the word "appropriate," as used in section 1867(a), be given substantive content, "requiring hospitals to provide a uniform minimum level of care to each patient seeking emergency room care." Id. Instead, the court concluded, "[a] court should ask only whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed." Id.

In contrast to how the word "appropriate" is used in section 1867(a), Congress used the word "appropriate" in section 1867(g) to modify "transfer". As discussed at length above, Congress explicitly defined "appropriate transfer" at section 1867(c)(2) of the Act. While, for the reasons discussed by the ALJ and above, section 1867(c)(2) is not entirely apposite in the context of a section 1867(g) case, the Act's definition of an "appropriate transfer" nevertheless provides considerable guidance as to how to assess whether a proposed transfer should be considered appropriate for purposes of determining whether a hospital complied with section 1867(g). None of the elements of the definition, however, suggests that the adjudicator must determine whether either a transferring or a potential receiving hospital has treated a patient disparately or merely "adhered to its own procedures."

Further, with respect to the title of section 1867(g), "Nondiscrimination," we recognize the well-settled principle of statutory construction that "[w]here the title throws light on the meaning of the statute itself, it is an available tool for the resolution of doubt." Sutherland Stat Const § 47.03 at 141 (5th Ed). Here, however, the text of section 1867(g) raises absolutely no inference that a potential receiving hospital's motive in rejecting a request for transfer should be considered by an adjudicator reviewing an alleged violation of the section. Accordingly, we conclude that the ALJ did not err in concluding that the I.G. was not required to prove that St. Anthony gave disparate treatment to R.M. or in finding that St. Anthony's transfer policies were irrelevant for the purpose of deciding whether St. Anthony refused to accept a transfer of R.M. in violation of section 1867(g).(29)

With respect to FFCL 11.d., St. Anthony argued that the ALJ erred in concluding that the I.G. did not take contradictory positions in Bowen and this case. As it argued below, St. Anthony submitted on appeal that the I.G.'s positions in the two cases were at odds with respect to, among other things: 1) the transferring physician's responsibilities under EMTALA to obtain a consent to transfer the patient and to perform an appropriate screening examination; 2) the responsibility of a hospital which is not on diversionary status, such as University, to accept a request to transfer; and 3) the underlying goal of EMTALA and the relevance of a hospital's motive in treating a patient.

We conclude that the ALJ reasonably determined that St. Anthony's contentions have no merit. As the ALJ observed, the two cases involved different sections of the Act. While Bowen involved whether a physician violated section 1867(a) of the Act, this matter addressed whether a potential receiving hospital violated section 1867(g).(30) For the reasons previously discussed, the ALJ was not required to find, and the I.G. was not required to prove, that in this case Dr. Spengler/Shawnee met all of the EMTALA requirements applicable to a transferring hospital. Moreover, the ALJ correctly noted that, on close analysis, the positions taken by the I.G. in the two cases were not inconsistent. For example, St. Anthony argued that the I.G. in Bowen took the position that a hospital that is not on diversionary status must accept a transfer request, whereas in this case, the I.G. did not assert that University acted improperly. This contention mischaracterizes the I.G.'s position on University's actions. The I.G. represented that it was willing to stipulate in this case that University did accept R.M. for transfer and then "unaccepted" and "that there was a violation by University." Tr. at 169, 823. The I.G. further submitted, however, that St. Anthony was not relieved of its responsibilities under section 1867(g) based on University's actions.

Accordingly, we uphold FFCLs 11, 11.b., 11.c., and 11.d. of the ALJ Decision.

(8) The ALJ's Conclusion That St. Anthony Violated Section 1867(g)

FFCL 12. [St. Anthony] failed to comply with the requirements of section 1867(g) of the Act when it refused to accept the transfer of R.M. from Shawnee Regional Hospital.

St. Anthony excepted to FFCL 12 for the reasons it excepted to the other FFCLs of the ALJ Decision. Based on the foregoing analysis, we conclude that the ALJ did not err in finding that the I.G. proved that each element of a section 1867(g) violation was met in this case. On the evening of April 8, 1995, R.M. had an unstabilized emergency medical condition, and Shawnee did not have the capabilities or facilities necessary to stabilize that condition. St. Anthony did have the specialized capabilities and the facilities necessary to stabilize and treat R.M.'s emergency medical condition. It also had the capacity to accommodate R.M. A transfer of R.M. to St. Anthony was appropriate. Shawnee requested St. Anthony to accept the transfer of R.M., and St. Anthony refused to accept the transfer.

Accordingly, we affirm FFCL 12 of the ALJ Decision.

(9) The CMP Assessed by the ALJ

FFCL 13. A civil money penalty of $25,000 is reasonable in light of the evidence which relates to the factors used to decide the amount of a civil money penalty and in light of the Act's remedial purpose.

Section 1867(d)(l) of the Act provides that a CMP of up to $50,000 may be imposed against a participating hospital found to be in violation of section 1867, and that the amount shall be determined in the same manner as a CMP imposed pursuant to section 1128A of the Act. The Secretary's regulations designed to govern the imposition of a CMP are set forth in 42 C.F.R. Part 1003. The criteria for determining the proper amount are as follows:

(i) The degree of culpability of the respondent;

(ii) The seriousness of the condition of the individual seeking emergency medical treatment;

(iii) The prior history of offenses of the respondent in failing to provide appropriate emergency medical screening, stabilization and treatment of individuals coming to a hospital's emergency department or to effect an appropriate transfer;

(iv) The respondent's financial condition;

(v) The nature and circumstances of the violation; and

(vi) Such other matters as justice may require.

42 C.F.R. § 1003.106(a)(4).

The I.G. had recommended that the ALJ impose the maximum amount, $50,000; St. Anthony contended that no CMP should be imposed. After finding that a basis for imposing a CMP existed, the ALJ considered the evidence relating to the regulatory factors and concluded at FFCL 13 that a CMP of $25,000 should be assessed. Both parties excepted to that determination. Below, we address both parties' contentions in the course of reviewing the ALJ's determinations concerning the basis for imposing a CMP and the weight he gave the regulatory factors in reaching his conclusion as to the proper amount. We conclude that the ALJ's findings and conclusions are supported by the law and substantial evidence in all but one respect. Specifically, we conclude that although remediation may lawfully be considered as a mitigating factor in setting the CMP amount, the remedial measures cited by the ALJ were taken by St. Anthony in order to avoid termination from the Medicare program, rather than due to a conviction by St. Anthony that it needed to change to improve its compliance with the Act. We therefore set a new amount of $35,000 for the CMP.

(a) Basis

The ALJ specified as the basis to impose a CMP under the circumstances here his conclusion that St. Anthony "neither articulated a clear transfer acceptance policy which assured compliance with the Act nor did it educate its staff and on-call physicians as to their responsibilities." ALJ Decision at 31. St. Anthony argued that it had no notice that its transfer acceptance policy was at issue in this case. Accordingly, St. Anthony contended that its due process rights were violated and the entire case should be dismissed.

We reject St. Anthony's assertion that its due process rights were violated because it lacked notice that the insufficiency of its transfer acceptance policy and its failure to implement that policy adequately could be a basis on which the Secretary might impose a CMP. In the letter from the I.G.'s Chief Counsel to St. Anthony dated May 14, 1998, St. Anthony was notified that the I.G. proposed to impose a CMP of $50,000 on St. Anthony based on an alleged violation of 1867(g) of the Act. The letter also stated that the proposed CMP assessment was based on the factors listed at section 1003.106(a)(4) of the regulations. Further, as discussed above, in fulfilling its EMTALA duties, a hospital must act through its employees and the physicians to whom it has awarded privileges to treat patients at the hospital. Michael L. Burditt, DAB No. 1167 at 51 (1990), aff'd 934 F.2d 1362. See also H.R.Rep. 101-247 at 1034-35. As we also noted above, the preamble to the interim final rule implementing EMTALA provided public notice with respect to section 1867(g) that "it is properly the receiving hospital's decision as to who may consent to receive patients and how to implement this policy among its staff." 59 Fed. Reg. at 32,106. Accordingly, given St. Anthony's actual notice of the nature of these proceedings, the Secretary's public notice that hospitals must establish policies addressing which employees and agents will be authorized to respond to EMTALA transfer requests, and the fact that St. Anthony itself proffered its own policy into evidence (P. Ex. 90), we reject St. Anthony's contention that it was not afforded adequate notice that the ALJ might take its transfer acceptance policy into consideration in the course of evaluating the appropriate CMP amount.(31)

St. Anthony also quarreled with the ALJ's characterization of its transfer acceptance policy as "expressed in a single sentence." St. Anthony Br. at 227. However, that contention is based on St. Anthony's incorrect interpretation of its EMTALA responsibilities as being contingent on the actions of the transferring hospital, which we have discussed and rejected above. The ALJ was correct when he noted that there was but a single sentence in the policy that referred to St. Anthony's policy concerning acceptance of transfers.

St. Anthony's other arguments about the ALJ's assessment of its policy, such as that it was vague and that it "left Drs. Buffington and Lucas to their own devices," are likewise misplaced. As we have discussed above, St. Anthony erred in asserting that its responsibility under the statute to accept a requested transfer was unclear. Further, the ALJ's conclusion that St. Anthony's policy provided inadequate guidance to Drs. Buffington and Lucas related not to the exercise of medical judgment, but to the representations these individual made, and actions that they took, with respect to their authority to respond to the request to transfer R.M. ALJ Decision at 31. Moreover, even if the evidence supported St. Anthony's contention that it had a clear policy, circulated among its staff, that only an emergency room physician could accept a transfer, this would not absolve St. Anthony of its failure to comply with section 1867(g) in this case. Here, the emergency room physician, aware that a transfer request had been made, yielded his responsibility to respond to the request to an on-call physician whom the hospital held out as authorized to accept or reject the transfer.

Having reviewed all of St. Anthony's contentions concerning the ALJ's decision that there was a basis to impose a CMP here, we conclude that the ALJ did not commit any error of law and that his determination is supported by substantial evidence in the record. Thus, the next question to be addressed is the amount of CMP to be imposed.

(b) Amount of CMP

St. Anthony argued that, in applying the regulatory factors for determining the amount of a CMP to the facts in this case, the ALJ did not give proper weight to all the facts. St. Anthony therefore contended that the amount of the CMP should be reduced to zero. St. Anthony also argued that various factors, if weighed properly, should result in the imposition of only a minimal CMP amount. The I.G. argued that the ALJ erred in his assessment of St. Anthony's culpability and its remedial efforts and that the amount of CMP should be raised to $50,000.

As an initial matter, we reject St. Anthony's contention that if the ALJ did not properly weigh all the evidence, the amount of CMP should be minimal. This theory would have us ignore that the ALJ properly determined that a basis for a CMP existed and that at least one factor, the seriousness of the condition of the individual seeking emergency medical treatment, was clearly present (even if St. Anthony contended that its physicians did not understand or agree with Dr. Spengler's diagnosis of aortic injury). Thus, some penalty was due.

(c) Factors affecting the amount of the CMP

The ALJ considered culpability, the seriousness of R.M.'s condition, St. Anthony's previous history of compliance, St. Anthony's financial condition, the nature and circumstances of the violation, and, under the category of "other matters as justice may require," St. Anthony's actions subsequent to the violation that were designed to prevent further such incidents. Both parties took issue with how the ALJ weighed the evidence concerning these issues. We discuss those objections in the order that the regulation lists the factors.

Culpability

The ALJ determined that St. Anthony was culpable of a negligent violation of EMTALA because, although it had adopted a policy to comply with section 1867(g), it failed to enforce its policy, thereby enabling Drs. Buffington and Lucas to exercise their personal judgment to decide whether to accept the requested transfer. The ALJ also determined that these physicians exercised their judgment carelessly. ALJ Decision at 32-34.

St. Anthony contended that to the extent that the ALJ discussed its policy in relation to his determination of culpability, this was a violation of due process because St. Anthony lacked notice that its policy was at issue. We conclude that this contention is meritless for the same reasons we rejected this contention above in relation to whether there was a basis for imposing a CMP.

St. Anthony also mischaracterized the ALJ's finding that the physicians exercised their personal judgment carelessly as a finding that they exercised medical judgment improperly; St. Anthony then argued that the Act only provides for a penalty in situations where a hospital and/or physician refuses to exercise any medical judgment. Assuming that we accepted St. Anthony's reliance on medical judgment as being paramount in situations where the Act is involved, this argument requires us to ignore that the judgment calls cited by the ALJ concerned Dr. Buffington's carelessness in not protecting his authority to accept the transfer on behalf of St. Anthony and Dr. Lucas's carelessness in rejecting the transfer request despite the requirements of the Act, neither of which are medical judgments. Moreover, to accept St. Anthony's argument would require us to conclude that the hearing testimony of Drs. Buffington and Lucas was reliable. For the reasons discussed above, however, we conclude that the ALJ reasonably determined their hearing testimony was not reliable.

St. Anthony further contended that when determining its culpability, the ALJ was required by the decision in Cherukuri v. Shalala, 175 F.3d 446 (6th Cir. 1999), to analyze the acts of every party that played a role in the events that took place on April 8, 1995. St. Anthony repeated its version of events and contended that Dr. Spengler and University Hospital were also culpable for St. Anthony's failure to accept R.M.'s transfer. We have previously discussed why we find that the ALJ's findings of facts concerning the events at issue are supported by substantial evidence in the record; thus, to the extent that this contention relies on St. Anthony's version of the facts, it is meritless. In addition, we have also discussed and rejected St. Anthony's legal interpretation that its liability under the Act is dependent on the actions of others. Consequently, this part of St. Anthony's attack on the ALJ's culpability determination also fails.

The I.G. also found fault with the ALJ's analysis of St. Anthony's culpability, contending that "the ALJ erred in failing to assess any CMP on St. Anthony Hospital attributable to the actions of its physicians." I.G. Br. in Support of Cross-Appeal (I.G. Cross App.) at 16. The I.G. argued that the hospital should automatically be assigned the culpability of its agents. The I.G. also contended that the ALJ should have found the highest degree of culpability under the circumstances of this case, which included failure to have and enforce an adequate transfer acceptance policy, failure to discipline the doctors involved, and failure to accept responsibility for the events of April 8, 1995.

In arguing that the ALJ should have found St. Anthony "automatically" responsible for the actions of its doctors, the I.G. relies on the common law of agency, contending that, since the ALJ found that Dr. Buffington was St. Anthony's agent in fact and Dr. Lucas had apparent agency authority for the hospital, their actions should be imputed to St. Anthony. The I.G. thus appears to equate liability with culpability. We disagree with this assumption. After having concluded that St. Anthony was legally answerable or responsible for the actions of these doctors, it was still necessary and appropriate for the ALJ to analyze the actual contribution of St. Anthony's actions to the events that took place that night. Had the record shown that St. Anthony had a clear policy regarding transfers that these doctors willfully violated, St. Anthony would still be liable, but less blameworthy. We therefore reject this I.G. argument.

As for the I.G.'s exception to the ALJ's determination that St. Anthony's culpability was not of the highest degree, the I.G. stated that "the record supports the ALJ's findings" that it was St. Anthony's failure to have an adequate acceptance policy that caused the violation of the Act. I.G. Cross App. at 5. It assigns error to the ALJ, however, for failing to include in his assessment of culpability St. Anthony's failure to discipline the doctors involved or to acknowledge that it had a responsibility to R.M. under the Act that was independent of the responsibility that other actors in those events may have had. These matters relate to St. Anthony's actions after the violation had taken place, however, and the ALJ considered those actions under the rubric of "such other matters as justice may require." Without reaching the question of whether actions subsequent to a violation could properly be included in an assessment of the culpability of a party found to have committed a violation of the Act, we conclude that, under the circumstances of this case, the matters cited by the I.G. have more of a bearing on the trustworthiness of or likelihood that St. Anthony would repeat its violation, and consequently are more appropriately considered alongside the other actions that St. Anthony took after the violation had occurred. Consequently, we consider these matters below in our review of the ALJ's determination concerning "such other matters as justice may require," and affirm the ALJ's determination that St. Anthony's culpability rests on its failure to have an adequate transfer policy.

The seriousness of R.M.'s condition

The ALJ found that R.M. was desperately ill on the day in question, and that St. Anthony's failure to accept his transfer could have potentially jeopardized his life. St. Anthony characterizes this determination as a hindsight perspective of R.M.'s condition, and reiterates the scenario rejected by the ALJ concerning Dr. Spengler's conversations with Dr. Lucas about R.M.'s condition. However, St. Anthony ultimately states that "the record as a whole supports the fact that RM did have a very serious condition on April 8, 1995." St. Anthony Br. at 234. Since the seriousness of the condition, not the specific diagnosis, was the basis of the ALJ's finding, we need not discuss St. Anthony's contentions on this issue any further.

St. Anthony's previous history of compliance

It was undisputed that St. Anthony had no previous history of non-compliance.

St. Anthony's financial condition

The ALJ concluded that there was no evidence that St. Anthony lacked the wherewithal to pay a CMP in the amount of $25,000. St. Anthony asserted that the I.G. had the burden of showing that St. Anthony did have the ability to pay, so that the lack of evidence on this item means that the ALJ conclusion should be reversed.

St. Anthony did not cite to any authority in support of its assertion that the burden of proof on this item rests with the I.G., and we know of none. St. Anthony was given the opportunity to provide information about this and the other factors taken into account by the I.G. in setting the amount of the CMP in the May 14, 1998 letter proposing imposition of the $50,000 amount. There is nothing in the record showing that it did so. The ALJ also raised this issue at the hearing. Tr. at 931. Indeed, although St. Anthony is in the best position to present evidence as to whether it lacks the financial ability to pay the CMP, even when it was proposed at the maximum amount, it has never made so much as an allegation to that effect. Consequently, since this exception is utterly devoid of any legal or factual basis, we affirm the ALJ's finding.

The nature and circumstances of the violation

The ALJ did not discuss this factor in detail, instead relying on his previous findings about how St. Anthony came to violate the Act and reiterating his conclusion that the violation was caused by St. Anthony's negligent failure to assure that its staff and its on-call physicians understood their responsibilities to comply. ALJ decision at 34. St. Anthony contended that the ALJ's analysis incorrectly focused on the actions of St. Anthony, Dr. Buffington, and Dr. Lucas, without taking into account several other circumstances that St. Anthony argued should have been considered. Among those circumstances were the behavior of University Hospital, Medi-Flight's lack of an agreement with St. Anthony, and the efforts of a St. Anthony employee to arrange for a dual transfer to circumvent the problem with Medi-Flight's landing at St. Anthony.

In the course of finding facts and concluding that St. Anthony was liable and culpable for a violation of the Act, the ALJ considered all of St. Anthony's allegations concerning the circumstances of that fateful night. We have previously explained why the law and evidence of record supports the ALJ's reasoning that the actions of other actors on that night did not excuse St. Anthony's failure to comply with the Act, and his determination that the lack of an agreement with Medi-Flight did not absolve St. Anthony. St. Anthony's assertion that Nurse Burkle's attempts to secure alternate transportation to St. Anthony should be credited as mitigating also fails because she acted independently of the physicians who were responsible for making the decision to accept or reject the transfer request. We therefore reject St. Anthony's legal and factual assertions supporting this exception.

Such other matters as justice may require

The ALJ found that St. Anthony had taken steps to remedy the situation that resulted in its violation of the Act, and he concluded that justice required that he take those steps into account in setting the amount of the CMP. St. Anthony argued that there were additional issues that the ALJ should have considered, while the I.G. argued that the ALJ erred in giving St. Anthony credit for its actions because they were motivated by St. Anthony's desire to avoid termination from the Medicare program rather than by its recognition that changes were needed to better achieve compliance with the Act. We first discuss the matters that St. Anthony contended should have been considered, then review the I.G.'s contention.

St. Anthony contended that the ALJ should have taken into account the fact that there was no case law previously interpreting section 1867(g), and it asserted that the lack of precedent was due to the imprecision of the statute. St. Anthony then proceeded to provide a discussion of "void for vagueness" court cases, also claiming that it was unable to foresee what duties the Act imposed. St. Anthony concluded its argument by stating that "the ALJ should not be allowed to use this case as a platform to both penalize Respondent [St. Anthony], and clarify the duties under EMTALA which to this point are vague and unforeseeable." St. Anthony Br. at 239.

To the extent that St. Anthony relies upon the ALJ's recognition that the terms "specialized capabilities," a "hospital," "appropriate transfer," or "capacity" are not specifically defined in the Act, we observe that St. Anthony has elsewhere alleged that it adopted a policy designed to assure its compliance with the Act, and it has never asserted that it was confusion about these words in the Act that somehow was the basis for the actions of Drs. Buffington and Lucas. In addition, we reject as rank speculation St. Anthony's assertion that the reason no prior case involving violation of section 1867(g) has been reported is because the law is vague. As we discuss above, St. Anthony's refusal to accept R.M.'s transfer is precisely the situation that Congress had in mind when it adopted section 1867(g), and we therefore reject St. Anthony's contention that its duties in this connection were unforeseeable. For the same reason, absent a clear expression of congressional intent to the effect that the first hospital to be found liable under this section be accorded some kind of special treatment, we reject St. Anthony's contention that the lack of prior cases involving this section of the Act should be taken into account in setting the amount of CMP to be imposed.

The I.G. agreed with the ALJ that one enforcement goal of the Act is to achieve a change in the violating entity's behavior, but it contended that the evidence cited by the ALJ for remedial measures taken by St. Anthony consisted of statements in documents that the ALJ himself characterized as "self-serving" and produced under threat of termination. Although the I.G. did not state in this connection what remedial measures it would find appropriate to consider, we note that the I.G. elsewhere faulted St. Anthony for failing to discipline the physicians involved and for failing to accept any responsibility for the violation.(32) The I.G. contended that since the Act clearly provided for both termination and a CMP to be imposed in the event of a violation, the ALJ's interpretation that actions taken to avoid termination could be viewed as mitigating in the context of the CMP would frustrate congressional intent that both remedies could be imposed for the same violation. In addition, the I.G. contended that, "[i]f remediation, in and of itself, is considered a mitigating circumstance in assessing a civil money penalty, it will weaken the enforcement system and make it virtually impossible for the OIG to vindicate the will of Congress to impose significant CMPs on those who violate the statute in a serious, culpable manner." I.G. Cross App. at 10.

St. Anthony responded to the I.G.'s contentions with a vitriolic attack on the state investigator, the ALJ, and the I.G. as all having twisted the words and circumstances of the two documents in question. St. Anthony did not address the I.G.'s contention that it was an error to consider as remedial actions taken by an alleged violator of the Act to avoid termination. We have independently reviewed the documents' contents and the record evidence of the circumstances surrounding their adoption. We disagree with the I.G. that remedial actions may never be considered as mitigating, but we conclude that the ALJ erred in considering the actions reflected by these documents as mitigating in setting the CMP amount.

The plan of correction that the ALJ cited as showing that St. Anthony changed its behavior to prevent further violations of the Act was not voluntarily written because St. Anthony recognized a need to change. Instead, it was written because, if it did not produce such a document, St. Anthony would have been terminated from participation in the Medicare and state health care programs by HCFA. Under the enforcement program, where HCFA determines that a violation has occurred, HCFA will initiate termination of a provider's participation. HCFA does not refer the case to the I.G. until the termination action is resolved. 59 Fed. Reg. at 32,093-94. Thus, once HCFA found that St. Anthony had taken action to remediate the problem, the I.G. action was initiated. Although the ALJ stated these circumstances in his decision, he still gave St. Anthony credit for adopting its plan of correction, characterizing it as "additional steps to attain compliance with the requirements of the Act." ALJ decision at 35. We agree with the I.G. that it is inconsistent with the purposes of the Act to credit actions taken to avoid termination as mitigating. The Secretary expressly rejected a comment suggesting that such remedial actions may be a mitigating factor. 59 Fed. Reg. at 32,108-09.

The other document cited by the ALJ as evidence of steps taken by St. Anthony to assure that it would better comply with the Act's requirements in the future was an excerpt from the minutes of a March 26, 1996 meeting of St. Anthony's Medical Executive Committee, P. Ex. 93, which reflected a resolution to have the Chief of Staff issue a memorandum to all medical staff "re-iterating the ER call requirements of the medical staff." P. Ex. 93, at 2. The ALJ read this resolution as reiterating the authority of the emergency room physician on duty to screen and accept medically appropriate transfers, but said it was somewhat self-serving since, in his view, there was nothing in the record to show that St. Anthony had previously emphasized to its emergency room physicians their authority and responsibilities. He further determined that the document showed that St. Anthony was reacting to the consequences of the events of April 8, 1995. ALJ decision at 34. This statement was not adopted until after HCFA had threatened termination, was characterized as a reiteration rather than a change in policy, and was not even adopted until eleven months after the events. The statement rings particularly hollow in light of St. Anthony's failure to discipline either Dr. Buffington or Dr. Lucas for their failures to comply with the Act. Accordingly, we give this document no weight whatsoever as probative of St. Anthony's voluntary implementation of changes needed to bring it into compliance with the Act.

We therefore conclude that the ALJ erred in finding that a mitigating factor was established in this case.

(d) What the appropriate amount of CMP is for this case

Since we find that the ALJ erred as a matter of law in setting the amount of the CMP based, in part, on St. Anthony's allegedly remedial actions, we must revise the amount of the CMP to the extent that it was based on this error. In addition, we must review St. Anthony's arguments about the analysis that the ALJ undertook in arriving at the amount to the extent that they are not encompassed already in our discussion of the regulatory factors to be reviewed in setting the amount. Furthermore, we must review the I.G.'s arguments in favor of increasing the amount to the maximum CMP permitted to be imposed, to the extent that we have not previously addressed these arguments.

The ALJ rejected St. Anthony's contention that section 1867(g) was penal and not remedial, and concluded that there were at least three remedial purposes which may be served by a CMP: (1) to compensate federally funded programs for financial losses incurred as a consequence of unlawful conduct; (2) to compensate federally funded health care programs for damage to the reputations of these programs resulting from failure by a hospital to comply with the requirements of section 1867 of the Act; (3) to serve as an inducement to a hospital to assure that the hospital will attain compliance with the requirements of the Act and remain in compliance with those requirements. ALJ Decision at 35-36. St. Anthony contended that the ALJ erred in finding the Act remedial, not penal, and it took issue with each of the three remedial purposes cited by the ALJ.

With respect to its argument that the Act was penal, not remedial, St. Anthony submitted that penal statutes must be strictly construed. Had the ALJ strictly construed section 1867(g), St. Anthony contended, he would have found that it had not violated EMTALA. For example, St. Anthony submitted that if the ALJ had strictly construed the word "hospital" in section 1867(g), he would not have read it to include on-call physicians, while a strict construction of the term "appropriate transfer" would have required the ALJ to "apply all of the provision[s] concerning an 'appropriate transfer'." St. Anthony Br. at 247.

This argument fails on numerous grounds. First, applying the leading case law, we conclude that the ALJ properly found that a section 1867 CMP, determined in the same manner as a CMP under section 1128A of the Act, is civil and fundamentally remedial in nature. Hudson v. United States, 522 U.S. 93, 99-100 (1997); United States v. Ward, 448 U.S. 242 (1979); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). In addition to the remedial purposes of the Act cited by the ALJ, we note that Congress expressly labeled the section 1867 assessment a "civil" remedy and that a maximum CMP of $50,000 is not "so punitive either in purpose or effect," . . . as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99 (quoting Ward, 448 U.S., at 248- 249; Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956).). See also 59 Fed. Reg. at 32,109. In addition, federal circuit courts, including the Court of Appeals for the Tenth Circuit, have held that proceedings involving penalties imposed pursuant to section 1128A are civil. Chapman v. United States Dep't of Health and Human Services, 821 F.2d 523, 528-29 (10th Cir. 1987); Mayers v. United States Dep't Of Health and Human Services, 806 F.2d 995, 998-99 (11th Cir. 1986), reh'g denied, 813 F.2d 411 (11th Cir. 1987), cert. denied, 484 U.S. 822 (1987); Scott v. Bowen, 845 F.2d 856 (9th Cir. 1988).

Further, while it is well-settled that criminal statutes should be strictly construed, this canon of interpretation "only serves as an aid for resolving an ambiguity; it is not to be used to beget one." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 491 (1985), quoting Callanan v. United States, 364 U.S. 587, 596 (1961). For the reasons detailed at length above, we do not find the terms used in the EMTALA statute and regulations so ambiguous as to lend themselves to the strained interpretations suggested by St. Anthony. Consequently, we conclude that the ALJ did not err by failing to consider, in setting the amount of the CMP, St. Anthony's contentions that various terms of the Act were ambiguous.

St. Anthony also contended that the ALJ had stated at the beginning of the hearing in this matter that the I.G. was required to present evidence of the damages sustained by the government. However, as the ALJ in fact stated, the correct standard is that the I.G. had the burden to show that a CMP in the amount sought by the I.G. was reasonable in light of the criteria set forth in 42 C.F.R. § 1003.106(a)(4). The I.G. presented and the ALJ properly considered and weighed evidence regarding those criteria. We therefore reject St. Anthony's contention to the extent that it implies that there is no evidence in the record to support imposing a CMP.

We also reject St. Anthony's assertions that the government was required to prove damages and that to the extent that the government sustained damages in the form of high costs for prosecuting this case, it was the action of the government in bringing this case that caused those costs. The ALJ did not quantify the amount of costs sustained by the government in pursuing its investigation and prosecution, but his determination that they were "substantial" was amply supported by the record before him, which consisted of voluminous briefs and a three-day hearing. We do not address the parties' bickering about failure to cooperate in discovery or the number of and lodging accommodations for the I.G. personnel involved in the hearing, except to remark that even if we accepted St. Anthony's version, there would remain unaddressed the damage to the reputation of the programs and the inducement to assure that the hospital will attain and maintain compliance with the requirements of the Act, which were also cited by the ALJ in reaching his conclusion.

Thus, we conclude that all three remedial purposes cited by the ALJ are appropriately considered by the Panel in determining the amount of CMP to be imposed.

The ALJ stated that his principal reason for not imposing the maximum penalty is that such a penalty should normally be reserved for those facilities that show the highest level of culpability and the greatest indifference to attaining compliance with the requirements of law. In its exceptions, the I.G. only indirectly addressed this reason arguing that the ALJ erred in his assessment of St. Anthony's culpability and in crediting its efforts to assure future compliance. The I.G. also interpreted the ALJ's reference to the indifference of the hospital as a reference to the motive of the hospital, which, it asserted, was irrelevant as a matter of law. As we have already stated, the ALJ's assessment of culpability was correct as a matter of law and supported by substantial evidence in the record. In addition, although we agree that the hospital's motivation is not relevant for the purpose of determining liability, we find no fault with the ALJ's common sense observation that in setting the resulting penalty the highest amount could reasonably be reserved for the worst offenders. While we have concluded that St. Anthony's remedial steps are not properly considered in mitigation, we also conclude that they support the ALJ's determination that St. Anthony was not a facility that showed such great indifference to attaining compliance that it merited the highest penalty allowed. Thus, we agree with the ALJ that the I.G. has not shown that the maximum amount is warranted.

Rather than remanding this matter to the ALJ, which would add further months of delay to an already protracted proceeding, we have determined that it is appropriate for the Panel to establish the amount of the penalty. Both parties have had ample opportunity to make their legal arguments and to cite to evidence in the record that they consider relevant to this question. We adopt the ALJ's determinations as to the remedial purposes to be served here. We also agree with the ALJ that the maximum penalty of $50,000 should be reserved for the most egregious offenders. Although there is no prior history of offenses, and there is no evidence that St. Anthony's actions were intentional (rather than negligent), the seriousness of R.M.'s condition and the other regulatory factors dictate a fairly severe penalty, for which no credit for remedial action is due. Accordingly, we conclude that a CMP of $35,000 is appropriate.

Based on the foregoing discussion, we modify FFCL 13 as follows:

13. A civil money penalty of $35,000 is reasonable in light of the evidence which relates to the factors used to decide the amount of a civil money penalty and in light of the Act's remedial purpose.

(10) St. Anthony's Allegations of ALJ Prejudice and Bias

St. Anthony submitted in its last exception that the ALJ was prejudiced and biased against it, resulting in an unfair hearing. To support its contention, St. Anthony argued that the ALJ ignored applicable statutes, regulations, rules and "constitutional requirements of due process." St. Anthony Br. at 248. St. Anthony charged, among other things, that the ALJ improperly denied its initial motion to dismiss on the ground that it was not provided sufficient notice of the charges against it. St. Anthony additionally submitted that the ALJ Decision "states that St. Anthony Hospital's only fault was in failure to maintain adequate policies to ensure enforcement of EMTALA." Id. at 249. Consequently, St. Anthony wrote, its liability "was premised solely upon an allegation[] for which it received no notice and no opportunity to defend." Id. Further, St. Anthony contended, the ALJ improperly denied its motion to dismiss on the ground that it had not yet been afforded its right to a hearing or review before a peer review organization. Moreover, St. Anthony argued, additional rulings prior to the hearing, including the ALJ's ruling denying St. Anthony's motion for joinder, his refusal to allow St. Anthony discovery of information in the I.G.'s possession regarding other hospitals, and his ruling denying St. Anthony's summary judgment motion, all reflected the ALJ's prejudice. St. Anthony also argued that the ALJ was predisposed not to consider evidence relating to witness credibility, that he had taken positions on important issues prior to the presentation of all of the evidence, that he was biased in ruling on the admission of proposed exhibits, and that he "assume[d] a prosecutorial function . . . throughout the hearing [by] assist[ing] the OIG in presenting proof." Id. at 267.

We find absolutely no basis to support St. Anthony's allegations of judicial bias. In Edward J. Petrus, Jr., M.D., and The Eye Center of Austin, DAB No. 1264 at 23-26 (1991), the Board described the standard for disqualifying a judge on a charge of bias. The Supreme Court, the Board noted, has held that "[t]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some other basis than what the judge learned from his participation in the case . . . ." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Tynan v. United States, 376 F.2d 761 (D.C. Cir. 1967), cert. denied, 389 U.S. 845 (1967); Duffield v. Charleston Area Medical Center, 503 F.2d 512, 517 (4th Cir. 1974).

Here, St. Anthony did not point to any extrajudicial source of bias. Rather, St. Anthony referred to the ALJ's rulings on the parties' motions, his alleged predisposition not to consider certain evidence, and allegations that the ALJ had taken positions on important issues prior to the presentation of all of the evidence. The ALJ's rulings, however, do not constitute a sufficient basis for showing bias. See Ex Parte American Steel Barrel Co. and Seaman, 230 U.S. 35 (1913); In Re International Business Machine Corp., 618 F.2d 923, 929 (2d Cir. 1980); see also Annotation, Disqualification of Federal Judge, 2 A.L.R. Fed. 917, at 927 (1969), noting: "It has been uniformly held or recognized in civil proceedings that adverse rulings made by the judge in the case or proceeding itself do not constitute a sufficient basis for his disqualification under the statute [pertaining to disqualifications of federal judges]." Indeed, a close examination of the entire record shows that the ALJ properly considered the parties' motions, carefully analyzed the legal issues disputed, and issued appropriate rulings. We note in particular that, contrary to St. Anthony's oft-repeated and strenuous objections to the contrary in the proceedings below, the law supports the ALJ's rulings that St. Anthony was afforded adequate notice of the charges against it and was not improperly denied an opportunity for review by a peer review organization prior to the ALJ hearing. See, e.g., May 14, 1998 Letter from Chief Counsel to the Inspector General to St. Anthony; October 5, 1998 Order and Notice of Hearing; January 7, 1999 ALJ Ruling Denying St. Anthony Motion to Dismiss.

The regulations pertaining to the authority of the ALJ provide that "[t]he ALJ will conduct a fair and impartial hearing, avoid delay, maintain order and assure that a record of the proceeding is made." 42 C.F.R. § 1OO5.4(a). St. Anthony's allegations that the hearing was unfair and that the ALJ essentially acted in a prosecutorial fashion against it are not substantiated.

Our review of the record showed that the ALJ exhibited patience and forbearance toward both of the parties in this particularly contentious case. To the extent that the ALJ expressed frustration over the actions and charges brought by the parties' representatives against each other, it was directed at counsel on both sides of the aisle. See, e.g., Tr. at 232-37, 633-34, 910-911.

Further, we note that the ALJ made several major rulings which favored St. Anthony. For example, the ALJ denied the I.G.'s motion to dismiss St. Anthony's appeal on the ground that it was untimely filed; denied the I.G.'s request for clarification of the issues in dispute; permitted St. Anthony to introduce numerous exhibits at the hearing over the I.G.'s objections; denied the I.G.'s motion for change of venue for purposes of taking Dr. Spengler's testimony; and denied admission of numerous exhibits proffered by the I.G. Further, the CMP assessed by the ALJ ($25,000) was far less than the amount ($50,000) recommended by the I.G. These actions further undercut St. Anthony's allegation of bias.

Moreover, St. Anthony's charge that, because the ALJ actively questioned witnesses during the hearing, he acted in a prosecutorial fashion, assisting the I.G. in presenting proof, is baseless. Under 42 C.F.R. § 1005.4(b)(8) and (9), the ALJ is expressly authorized to regulate the course of the hearing and the conduct of representatives, parties, and witnesses, and to examine witnesses. In this case, the ALJ questioned witnesses from both sides of the case. In sum, the ALJ was appropriately exercising his authority in order to ascertain all of the information that he believed was necessary to adjudicate this case fairly.

Further, we reject St. Anthony's contention that the ALJ found that its "only fault was in [its] failure to maintain adequate policies to ensure enforcement of EMTALA." St. Anthony Br. at 249. In the context of assessing St. Anthony's culpability for the purpose of determining the proper CMP amount, the ALJ stated that the hospital's culpability stemmed from its failure to ensure that its transfer policies, which reflected the Act's requirements, were followed. This conclusion, however, does not undercut the ALJ's other FFCLs, establishing that St. Anthony's liability was premised upon its failure to comply with each of the criteria at Section 1867(g), when it refused to accept the requested transfer of R.M. Moreover, for the reasons discussed above at section IV.B.(9), St. Anthony's argument that it was not afforded adequate notice that the ALJ would consider its policies in the context of assessing its culpability under the regulations is meritless.

In conclusion, we find absolutely nothing in the ALJ's actions or rulings to demonstrate prejudice or bias against St. Anthony.

JUDGE
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Cecilia Sparks Ford

Marc R. Hillson

M. Terry Johnson
Presiding Board Member

 

FOOTNOTES
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1. For privacy considerations, we refer to this individual by his initials.

2. Public Law No. 101-239, § 6211(h)(2)(C), struck out the word "Active," which appeared before "Labor," effective July 1, 1990.

3. Congress defined "transfer" at section 1867(e)(4) to mean "the movement (including the discharge) of an individual outside a hospital's facilities at the direction of any person employed by . . . the hospital . . . ."

4. The ALJ identified the issues in the case as: 1) whether St. Anthony refused to accept a transfer in contravention of section 1867(g); and 2) whether a CMP should be imposed against St. Anthony, and if so, in what amount. ALJ Decision at 4. St. Anthony contended that the ALJ's statement of the issues was "extremely limited" and "contrary to the fact issues and an erroneous application of the law." St. Anthony Br. at 2. St. Anthony also set forth a lengthy series of questions which it identified as either "preliminary issues" or "issues in the case." Id. at 2-3. Because these subsidiary questions reflect St. Anthony's arguments in support of its exceptions, we address them in our analysis of the exceptions below.

5. To support its argument, St. Anthony cited Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985)(addressing the meaning of section 17 of the Pueblo Lands Act of 1924), and Negonscott v. Samuels, 933 F.2d 818 (10th Cir. 1991), aff'd, 507 U.S. 99 (1993)(involving the scope of criminal jurisdiction granted to the State of Kansas under 18 U.S.C. § 3243 (1988) with respect to state-law offenses committed by Indians on Indian lands). Further, St. Anthony wrote, the "law demands that statutes and regulations be enforced in totality," citing Alexander v. Cosden, 290 U.S. 484 (1934)(involving a statute imposing an excise tax on the transportation of oil by pipeline); and Mathiesen v. Banc One Mortgage Corp., 173 F.3d 1242 (10th Cir. 1999)(involving the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a), and the Fair Credit Reporting Act, 15 U.S.C. § 1681(m)). None of these cases support the proposition that when a statute lists in distinct subsections a series of requirements that must be met by entities subject to the statute's jurisdiction, an adjudicator reviewing an alleged violation of one of the requirements will necessarily be required, in every matter, to determine whether every other requirement listed in the statute was met.

6. The only case of which we are aware that addresses section 1867(g) is In re Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 513 U.S. 825 (1994), which we discuss below. While section 1867(g) claims arguably could have been viable in Miller v. Medical Ctr. of Southwest Louisiana, 22 F.3d 626 (5th Cir. 1994), and Fingers v. Jackson Madison County Gen. Hosp. Dist., 101 F.3d 702 (6th Cir. 1996)(unpublished), the claims were dismissed because the plaintiffs failed to state the necessary elements of a subsection (g) claim.

7. St. Anthony cited the following cases in support of this argument: Delaney v. Cade, 756 F.Supp. 1476 (D. Kan. 1991); Thornton v. Southwest Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990); Evitt v. University Heights Hosp., 727 F.Supp. 495 (S.D. Ind. 1989); Broderson v. Sioux Valley Memorial Hosp., 902 F.Supp. 931 (N.D. Iowa 1995); Bryan v. Rectors & Visitors of the University of Virginia, 95 F.3d 349 (4th Cir. 1996); Cherukuri v. Shalala, 175 F.3d 446 (6th Cir. 1999); Brooker v. Desert Hosp. Corp., 947 F.2d 412 (9th Cir. 1991); Cunningham v. Fredonia Regional Hosp., 98 F.3d 1349 (10th Cir. 1996); Cleland v. Bronson Healthcare Group, Inc., 917 F.2d 266 (6th Cir. 1990); and Phipps v. Bristol Regional Medical Center, 117 F.3d 1421 (6th Cir. 1997). St. Anthony Br. at 67, 84.

8. We note that while the I.G. offered this document into evidence only to demonstrate that a peer review organization had conducted a review of the R.M. matter (Tr. at 48-50), both the I.G. and St. Anthony relied on the substantive content of the PRO report in the briefs that they submitted on appeal. See, e.g., St. Anthony Reply Br. at 10.

9. The state survey agency's investigation was conducted by Dr. James Hulsey and Carol Fatzer, a nurse. Dr. Hulsey was deceased at the time of the hearing.

10. The I.G.'s Reply to St. Anthony's Post-Hearing Brief below did, however, discuss this subsequent history.

11. There is no dispute in this case that St. Anthony was a Medicare participating hospital, defined at section 1867(e) of the Act and 42 C.F.R. 489.24(b) as a hospital that has entered into a provider agreement under section 1866 of the Act. See ALJ Decision at 30, citing P. Ex. 90, at 2.

12. That on-call physicians are considered available to a hospital for purposes of stabilizing an individual with an emergency medical condition is established by section 1866(a)(1) of the Act and section 489.20(r)(2) of the regulations. Discussing section 1866(a)(1), the Secretary wrote in the preamble to the interim final EMTALA rule:

If a hospital chooses to meet its responsibility . . . to provide adequate medical personnel to meet its anticipated emergency needs by using on-call physicians either to staff or to augment its emergency department, then the capability of its emergency department includes the services of its on-call physicians.

59 Fed. Reg. at 32,100.

13. With respect to St. Anthony's contentions that Dr. Spengler communicated to Dr. Lucas information suggesting that R.M. was a multi-trauma patient, see our discussions at sections IV.B.(4), (5) and (6)(f) below.

14. Morever, since St. Anthony obviously had information about the availability of additional suites, staff and equipment at its facility on the night in question, we would expect it to present any evidence that it lacked such capacity as an affirmative defense.

15. St. Anthony also argued in support of the credibility of Dr. Buffington's version of the phone call that:

No matter what one wants to believe Dr. Spengler's [sic] emergency room report, or Dr. Buffington, "Medi-flight was not an appropriate mode of transportation to take RM to St. Anthony Hospital." Medi-flight would not fly to St. Anthony Hospital and Dr. Spengler knew that . . . . It is truly just guessing at the "gist of a conversation" to believe Dr. Spengler made a request to transfer to a Hospital that he knew his mode of transportation would not fly to!

St. Anthony Br. at 115-16. We note that St. Anthony made a panoply of similar arguments in various sections of its brief, alleging that the Medi-Flight helicopter could not land at St. Anthony, that every individual involved in the R.M. matter was aware of this fact, and that, consequently, St. Anthony could not have violated section 1867(g). We address these arguments below at section IV.B.(6)(e), discussing FFCL 9.e. of the ALJ Decision.

16. We note that Ms. Fatzer followed HCFA guidelines on how to record the investigative interviews. See I.G. Ex. 7, at 9.

17. The ALJ separately addressed the "appropriate transfer" criterion of section 1867(g) at FFCL 9, which we discuss below at section IV.B.(6) of this decision.

18. We note that St. Anthony's arguments in its appeal brief excepting to FFCL 5 included a response to the ALJ's analysis of whether an agency relationship existed between St. Anthony and Dr. Lucas, which the ALJ addressed at FFCL 10. Accordingly, we address this part of St. Anthony's exception in our evaluation of FFCL 10.

19. St. Anthony also argued in its exception to FFCL 10 that the ALJ erred in concluding "that Dr. Lucas could not exercise his judgment in determining whether it would be appropriate for him to treat RM." St. Anthony Br. at 196. St. Anthony contended that Dr. Lucas' medical opinion that R.M. should be transferred to University, which he based on erroneous information provided by Dr. Spengler, should not be viewed as a refusal to accept a transfer of R.M. on St. Anthony's part. Id. at 196-199. St. Anthony raised essentially the same argument in its exception to FFCL 9. We address this contention at section IV.B.(6)(f) below.

St. Anthony also argued in its exception to FFCL 10 that the ALJ erred in determining that its transfer policies were irrelevant. St. Anthony submitted that the ALJ was required to find that the hospital discriminated against R.M. in order to conclude that it violated section 1867(g) of the Act. St. Anthony submitted that the ALJ should have considered St. Anthony's transfer policies in the context of analyzing whether the hospital disparately treated R.M. St. Anthony repeated its argument that the ALJ erred in failing to address whether R.M. was discriminated against in its exception to FFCL 11.c. We address these contentions below at section IV.B.(7).

20. Agency is defined as "the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement (Second) of Agency § 1(1) (1958). The "principal" is "[t]he one for whom action is to be taken," id. § 1(2), and the "agent" is "[t]he one who is to act." Id. § 1(3). An agent has "actual" authority to bind the principal where the principal has specifically granted the agent the power to do so.

21. With respect to St. Anthony's argument that an agent may not delegate his powers to a subagent without the express consent of the principal, we note that Oklahoma case law recognizes that an agent's authority to appoint a subagent may be implied where the powers of the agent are general and there is apparent necessity for the appointment of a subagent. See, e.g., Williams v. LeForce, 61 P.2d 714 (Okla. 1936); Brouse v. Cox, 263 P. 1088 (Okla. 1928).

22. Though the statute authorized the Secretary to establish "other requirements" which must be met for a transfer to be considered appropriate, the Secretary did not adopt any. 59 Fed. Reg. at 32,092-32,093.

23. To support this argument, St. Anthony cited Bryan v. Rectors of the University of Virginia, 95 F.3d 349, 351 (4th Cir. 1996); Correa v. Hospital San Francisco, 69 F.3d 1184, 1189 (1st Cir. 1995); and Gatewood v. Washington Healthcare Corp. 933 F.2d 1037, 1041 (D.C.Cir. 1991). We note that none of these cases addresses, let alone even mentions, section 1867(g), which Congress enacted years after the original EMTALA legislation to deter the separate but related practice of "reverse dumping."

24. While St. Anthony argued before us that Shawnee's/Dr. Spengler's diagnosis and treatment of R.M. were inadequate, we note that the same attorneys who wrote St. Anthony's brief represented Shawnee in a related investigation. In the course of that matter, counsel wrote on September 25, 1996:

Shawnee Regional Hospital did comply with the federal EMTALA law in this case. [R.M.] was never denied services. Exemplary services were provided to this patient. The patient was not only provided a physician examination, a nurse was in attendance at all times, and multiple tests and treatments were provided while an appropriate transfer was arranged. It is asserted that the hospital should be commended for its services to this patient, rather than condemned.

I.G. Ex. 12, at 12.

25. As noted above, 42 C.F.R. § 489.24(b) defines capacity as "the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment . . . ."

26. With respect to the timing of the transmission of the medical records the Secretary has stated: "We agree that it would be helpful for many reasons for the receiving hospital to have the individual's medical record at the time the individual is actually transferred. . . . Whatever documents are available at the time the individual is transferred should be sent to the receiving hospital with the individual." 59 Fed. Reg. at 32,103.

27. In addition to specifically excepting to FFCL 9.e., St. Anthony relied on the lack of a contract between St. Anthony and Medi-Flight as a basis for absolving it of any liability under section 1867(g) in several other sections of its brief. For example, St. Anthony argued in excepting to FFCL 6.b., involving Dr. Lucas' credibility, that "[t]here is still no proof that Dr. [sic] Medi-Flight would even fly to St. Anthony Hospital." St. Anthony Br. at 147. St. Anthony wrote in excepting to FFCL 10 that "[St. Anthony's] written policies establish that appropriate transportation must be arranged before a transfer can be accepted . . . . There is no evidence that appropriate transportation was ever arranged for RM." Id. at 208.

28. We address FFCL 11.a., concerning the relevancy of whether R.M. was stabilized, at section IV.B.(1) above.

29. Moreover, as the ALJ observed, the Supreme Court held in Galen v. Roberts, 525 U.S. 249 (1999), that EMTALA "does not require proof of an improper motive - including an improper pecuniary motive - by a hospital" to establish a violation of the Act. ALJ Decision at 29.

30. The Board recently issued a decision in Bowen, upholding the ALJ's determination that the physician was not negligent in not performing a medical screening examination under section 1867(a). Samuel T. Bowen, DAB No. 1720 (March 23, 2000).

31. St. Anthony also asserted that every member of its medical staff receives a copy of this policy, and that the policy is well-known by the medical staff, but these matters were not addressed at the hearing because it lacked notice that the policy was at issue. St. Anthony Br. at 228. St. Anthony did not explain how proving these assertions true would have prevented its being found liable for a CMP, since the ALJ correctly found that the policy did not establish a clear protocol for responding to transfer requests.

32. Although the I.G. argued that a party found to have violated the Act should never receive consideration for remedial measures implemented after the violation, that position appeared inconsistent with the I.G.'s assertion that St. Anthony should be held to be deserving of a higher penalty amount because it did not discipline the doctors involved in the violation. However, since we find that the ALJ should not have credited St. Anthony for the particular remedial actions it took to avoid termination, we need not discuss the I.G.'s conflicting contentions further.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES