Emergency Medical Treatment and Active Labor Act "EMTALA"

By Darice McNelis of Buchanan Ingersoll & Rooney PC

OVERVIEW

Passed as part of the Consolidated Omnibus Budget Reconciliation Act of 1986 "COBRA"

Citations:

  • 42 U.S.C. 1395 dd
  • Section 1867 of the Social Security Act

EMTALA is intended to address the failure of a hospital to recognize an emergency condition due to inadequate screening procedures, and, if an emergency condition exists, the failure to properly stabilize, transfer or treat the patient in accordance with the hospital's capabilities.

EMTALA is not a federal malpractice statute.

Applies to:

  • All hospitals participating in the Medicare Program (virtually all hospitals)
  • All patients, whether or not they are eligible for Medicare benefits

THE RULE:
Any individual who comes to a hospital requesting an examination or treatment for a medical condition must receive an appropriate medical screening examination within the capability of the hospital's Emergency Department.

"Any Individual . . ."

Means anyone

  • Regardless of Medicare status
  • Regardless of insurance coverage (including managed care)
  • Regardless of ability to pay

". . . who comes to the hospital . . ."

  • Physically present to the Emergency Department
  • Physically present in another hospital department or unit
  • Physically present on hospital campus
  • Attended to by crew of hospital owned ambulance, even if not on the hospital campus

". . . must receive an appropriate medical screening examination . . ."

  • The medical screening examination must be reasonably calculated to identify any emergency medical conditions suggested by the presenting signs and symptoms.
  • An examination within the capabilities of the Emergency Department
  • Includes ancillary services routinely available in the Emergency Department
  • Includes diagnostic capabilities reasonably available
  • Includes on-call services reasonably available in the Emergency Department
  • Triage and "complaint-based" examinations are not sufficient

If the medical screening examination identifies an emergency medical condition, the hospital must:

  • provide such further treatment as may be required to stabilize the medical condition within the ability of the staff and facilities available to the hospital; or
  • Make a permitted transfer of the individual to another medical facility; or
  • Obtain the individual's written or informed consent to refuse such transfer

Emergency Medical Condition

  • 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:
  • Placing the health of the individual (or unborn child) in serious jeopardy;
  • Serious impairment to bodily functions;
  • Serious dysfunction of any bodily organ or part; or
  • With respect to a pregnant woman who is having contractions:
  • That there is inadequate time to effect a safe transfer to another hospital before delivery; or
  • Transfer may pose a threat to the health or safety of the woman or the unborn child

"To stabilize" means 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, or . . . with respect to a pregnant women who is having contractions, to deliver (including the placenta).

Psychiatric Patient

  • "Stable for discharge" - when patient is no longer considered to be a threat to himself or others.
  • "Stable for transfer" - when patient is protected and prevented from injuring himself or others.

If the patient does not have an emergency medical condition, EMTALA imposes no further obligation on the hospital.

EMTALA requires that a hospital may not delay the rendering of an appropriate medical screening examination as required in order to inquire about the individual's method of payment or insurance status.

EMTALA prohibits the hospital from taking any adverse action against or penalizing any qualified medical person or physician because they refuse to authorize the transfer of an individual with an emergency medical condition that has not been stabilized.

EMTALA specifies that any participating hospital, which has specialized capabilities or facilities or serves as the regional referral site for rural areas may not refuse to accept appropriate transfers of patients who require specialized care when the hospital has the capacity to treat the individual.

EMTALA does not preempt any state or local law requirement unless the provisions are in direct conflict. Therefore, the laws of the state in which a hospital is located and/or in which a physician practices may impose additional requirements upon the hospital and/or health care provider for the treatment of emergency medical conditions.

The Health Care Financing Administration (HCFA) imposes additional responsibilities upon Medicare hospitals in emergency cases:

HEFA Regulations

Signs: A hospital that is subject to EMTALA is required to post signs explaining a patient's right to receive emergency service under EMTALA. These signs must be posted in the emergency department, the entrance to the hospital, the admitting area, waiting rooms, and treatment areas, or in a place likely to be noticed by all.

Individuals waiting for examination and treatment. The signs must also state whether the hospital participates in the state Medicaid program.

On-Call List: A hospital must maintain a list of on-call physicians who are available to provide stabilizing treatment for individuals with emergency medical conditions.

Central Log: A hospital that is subject to EMTALA is required to keep a central log on each individual who comes to the emergency department seeking assistance, whether or not that person refused treatment, was refused treatment, or was transferred, admitted and treated, stabilized and transferred or discharged.

Record Retention: The medical records and other records of individuals transferred to or from the hospital must be maintained for a period of five years from the date of transfer.

Civil money penalties can be imposed for violations of EMTALA.

Civil Money Penalties - Hospital

A participating hospital that is found to negligently violate a requirement of EMTALA is subject to a civil money penalty of up to $50,000 ($25,000 for a hospital with less than 100 beds) for each violation of the statute.

Civil Money Penalties - Physicians

A physician who is responsible for the examination, treatment, or transfer of a patient and who negligently violates a requirement of EMTALA is subject to a civil money penalty of up to $50,000 for each violation of the statute.

Exclusion - Physicians

If a physician's violation of EMTALA is "gross and flagrant" or is repeated, the physician may be excluded from participation in the Medicare and state health care programs.

On-Call Physicians

An on-call physician who fails or refuses to appear within a reasonable period of time is also subject to civil money penalties and exclusion from Medicare and state health care programs.

Civil Enforcement

Any individual who suffers personal harm as a direct result of a hospital's violation of EMTALA may obtain those damages available for personal injury and equitable relief under state law.

Any medical facility that suffers a financial loss as a direct result of a hospital's violation of EMTALA may obtain those damages available for financial loss and equitable relief under state law.

RECENT REGULATIONS AND BULLETINS

Special Advisory Bulletin

64 Fed. Reg. 61353 Nov. 10, 1999

Outpatient PPS Rule

65 Fed. Reg. 18434 Apr. 7, 2000

Special Advisory Bulletin By OIG and HCFA Regarding:

  • Hospital Obligations
  • Managed Care Enrollees
  • Prior Authorization
  • Best Practices

Hospital Obligations

  • Appropriate Screening
  • If an Emergency Condition Exists
  • Stabilize or Appropriate Transfer

Managed Care Enrollees

  • No Contract Relieves Hospital of EMTALA Obligations
  • Medicare and Medicaid Managed Care Plans Must pay For Emergency Services-Prudent Lay Person Standard
  • Dual Staffing

Equivalency in

  • Staffing
  • Access
  • Quality
  • Transfer Protocols

Prior Authorization

  • Advance Beneficiary Notices Required by Medicare for Non-covered Services
  • Financial Responsibility Forms
  • No Delay of Screening or Stabilizing Treatment
  • Patient Inquiries
  • Qualified Personnel
  • Defer

Best Practices

  • No Prior Authorization Before Screening or Commencing Stabilizing Treatment
  • No Financial Responsibility Forms Before Stabilizing
  • General Registration O.K.
  • No Delay
  • Don't Discourage Patient From Evaluation
  • Screening by Qualified Personnel
  • Physicians Must Approve Transfers
  • Patient Financial Questions
  • Handle by Trained Staff
  • Offer to Screen & Stabilize
  • Defer Until After Screening
  • Voluntary Withdrawal
  • Offer Exam & Treatment
  • Review Benefits & Risks
  • Written Refusal
  • Documentation
  • Hospital Burden to Show Appropriate Steps Taken

Outpatient PPS Rule

  • Determination of Provider-Based Status
  • Reasonable Cost Reimbursement
  • Effective October 10, 2000
  • Obtaining Provider-Based Status
    • Determined by HCFA Before Costs Included on Cost Report
  • Requirements for Provider-Based Status
    • Operated Under Same License
    • Same Ownership and Control
    • Same Bylaws
    • Same Governing Body
  • Provider-Based Status
    • Administration
  • Same Oversight by Same Employees or Contractors
  • Integrated Functions for:
  • Billing
  • Human Resources
  • Purchasing, etc.
  • Clinical Services
  • Integrated
  • Same Medical Staff
  • Same Oversight
  • Unified Medical Records
  • Medical Staff Committee Responsibility
  • Financial Integration
  • Shared Income and Expenses
  • Cost Center of Hospital
  • Public Awareness
  • Held Out to Public as Hospital
  • Billed Accordingly
  • Location in Immediate Vicinity
  • Same Campus or Meets Exception Criteria
  • Campus - Structures 250 Yards From Main Building or as determined by HCFA
  • Not Applicable to Joint Ventures
  • Additional Criteria For Management Contracts
  • Same Staff
  • Administration Integrated
  • Hospital Holds Contract, Not Parent

Obligations of Hospital Outpatient Departments and Hospital-Based Entities

  • Comply with EMTALA
  • Comply with Hospital's Provider Agreement
  • Bill with Correct Site of Service Indicator
  • Treat all Medicare patients as Hospital Outpatients (not as MD office)
  • Payment Window Provisions Apply
  • If Medicare Beneficiary Not Treated on Main Campus, Duty to Provide Notice Prior to Services of Financial Liability
  • Comply with Medicare Health and Safety Rules for Hospitals
  • Expansion of EMTALA
  • Comes to the ER means comes to hospital property - main campus or off-campus provider-based facility or department
  • Capability of the hospital means hospital as a whole, but need not locate additional staff at off-campus provider-based facility or department
  • Protocols for off-campus provider-based facility or department
  • handling emergency conditions
  • direct contact with ER personnel at main campus
  • possible dispatch of ER personnel to off-campus site
  • at least one person on duty during regular hours must be designated as qualified medical personnel
  • if off-campus site is not staffed by qualified medical personnel, must have protocols to contact ER personnel at main campus
  • movement from off-campus to main campus is not a transfer
  • for transfer to another hospital, must follow EMTALA procedures and have transfer agreements in place
  • HCFA Review of Past Decisions
  • Review of Previous Payments

Case Law

Purpose:

  • . . . to prevent "patient dumping," which is the practice of refusing to treat patients who are unable to pay.

Marshall on behalf of Marshall v. East Carroll Parish Hospital Service District
C.A. 5 Louisiana 1998, 134 F.3d 319

  • . . . enacted by Congress with clear and specific purpose of allaying concerns about the increasing number of reports that hospital emergency rooms were refusing to accept or treat patients with emergency conditions if the patient did not have medical insurance.

Torres Nieves v. Hospital Metropolitano
D. Puerto Rico 1998, 998 F. Supp. 127

  • . . . to ensure each patient is accorded the same level of treatment . . .

Scott v. Hutchinson Hospital
D. Kansas 1997, 959 F. Supp. 1351

  • . . . to provide adequate first response to medical crisis for all patients and send a clear signal to the hospital community that all Americans, regardless of wealth or status, should know that a hospital will provide what services it can when they are truly in physical distress.

Vaughan Regional Medical Center v. Smith
M.D. Alabama 1995, 916 F. Supp. 1142

  • . . . to remedy deficiency under traditional state tort law which does not impose legal duty on hospital to provide access to, and treatment in, emergency room for those who are unable to afford it.

Hussain v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc.
E.D. Virginia 1996, 914 F. Supp. 1331

"Comes to . . ."

  • patient "comes to" the Emergency Department if a hospital owned and operated ambulance responds to the patient even if the ambulance is not on hospital grounds.
  • However, . . .

Madison v. Jefferson Parish Hospital Service District No. 1
E.D. Louisiana 1995 WL 396316

  • EMTALA is not intended to require a hospital owned and operated ambulance to transport a patient to the owner hospital despite the patient's request to be transported to a different hospital.

Hernandez v. Starr County Hospital District
S.D. Texas 1999, 30 F. Supp. 2d 970

  • Physician's radio communication with ambulance advising crew to transport patient in severe respiratory distress to more distant hospital did not violate EMTALA.

Arrington v. Wong
D. Hawaii 1998, 19 F. Supp. 2d 1151

  • Injured, uninsured child did not "come to" emergency department which instructed doctor over telephone not to send child to hospital.

Miller v. Medical Center of Southwest Louisiana
C.A. 5 Louisiana 1994, 22 F.3d 626

Appropriate Medical Screening

  • Hospital must provide for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients, and must provide that level of screening uniformly to all those who present substantially similar complaints.

Torres Nieves v. Hospital Metropolitano
D. Puerto Rico 1998, 998 F. Supp. 127

  • EMTALA is implicated only when individuals who are perceived to have the same medical condition receive disparate treatment.

Summers v. Baptist Medical Center
C.A. 8 Arkansas 1996, 91 F.3d 1132

  • Not judged by its proficiency in accurately diagnosing patient's illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.

Marshall on behalf of Marshall v. East Carroll Parish Hospital Service District
C.S. 5 Louisiana 1998, 134 F.3d 319

  • "Appropriateness" of screening is not determined by its adequacy in identifying patient's illness.

Holcomb v. Monahan
C.A. 11 Alabama 1994, 30 F.3d 116

Slabik v. Sorrentino
E.D. Pennsylvania 195, 891 F. Supp. 235

Strict Liability

  • Plaintiff's claim does not rest on any proof that hospital was negligent, but is predicated on hospital's violation of the statute making the hospital strictly liable for any personal harm that directly results from that violation.

Griffith v. Mt. Carmel Medical Center
D. Kansas 1994, 842 F. Supp. 1359

  • Showing of improper motive on the part of the hospital is not required to establish violation of EMTALA.

Roberts v. Galen of Virginia, Inc.
U.S. Kentucky 1999, 119 S. Ct. 685, 525 U.S. 249

Stabilization

  • EMTALA only obligates hospitals to stabilize conditions they actually detect . . .

Gerber v. Northwest Hospital Center, Inc.
D. Maryland 1996, 943 F. Supp. 571

  • Hospital that did not know of patient's emergency medical condition at time of transfer could not have violated EMTALA by transferring patient without having stabilized the emergency medical condition.

Baber v. Hospital Corp. of America
C.A. 4 West Virginia 1992, 977 F.2d 872

Stabilization - Psychiatric patient

  • Hospital that did not detect patient's alleged suicidal tendency had no obligation to stabilize "this unapparent medical condition."

Eberhardt v. City of Los Angeles
M.D. California 1995, 62 F.3d 1253

  • Hospital was not in violation of EMTALA because of the time lapse of act of patient after visit to the hospital and intervening medical treatment.

Tolton v. American Biodyne, Inc.
C.A. 6 Ohio 1995, 48 F.3d 937

Stabilization

  • Patient with severe scalp laceration treated with sutures died shortly thereafter of cerebral herniation and hematoma; hospital not in violation of EMTALA.

Vickers v. Nash General Hospital, Inc.
C.A. 4 North Carolina 1996, 78 F.3d 139

  • EMTALA did not require surgeon to force anesthesiologist to administer anesthesia to victims to allow surgeon to stabilize victims prior to transfer.

Cherukuri v. Shala
C.A. 6 1999, 175 F.3d 446

Transfer

  • Physician violated EMTALA by transferring severely hypertensive woman in active labor without appropriately qualified personnel accompanying patient.

Burditt v. U.S. DHHS
C.A. 5 1991, 934 F.2d 1362

  • Facilities of transferee hospital did not justify transfer of indigent patient where no serious medical risk is identified.

Owens v. Nacogdoches County Hospital District
E.D. Texas 1990, 741 F. Supp. 1269

  • The transfer provisions of EMTALA are applicable to situations in which a patient in a hospital has an emergency medical condition or is in active labor.

Smith v. Richmond Memorial Hospital
1992, 416 S.E. 2d 689

Lopez-Soto v. Hawayek
C.A. 1 1999, 175 F.3d 170

Preemption of State Law

  • EMTALA preempts inconsistent provisions of state law authorizing physicians to refuse to give such care as they determine to be medically or ethically inappropriate.

Matter of Baby K.
C.A. 4 Virginia 1994, 16 F.3d 590
cert denied 115 S. Ct. 91, 513 U.S. 825

COMPLIANCE AND INVESTIGATIONS

Investigations

  • Complaint Received in a HCFA Regional Office (RO)
  • HCFA Refers to State Agency (SA)
  • SA On-Site Investigation
  • Report to HCFA
  • HCFA Authorizes Survey
  • Any Violation?
  • Any Threat to Patient Health?
  • Any Patterns of Violations?
  • Assess Policies and Procedures

Survey by SA

  • Entrance Conference
  • Document Requests
  • ER Log for 6-12 months
  • Policies and Procedures
  • Medical Staff Bylaws
  • ER and Medical Staff Committee Minutes
  • On-Call Lists for 6 months
  • Ambulance Trip Reports
  • Sample of Medical Records
  • Interview of Staff, Witnesses, Patient and Family
  • Exit Conference - RO will Determine Compliance

Results of Investigation by SA

  • Complaint Not Substantiated
  • In Compliance, Previously Out of Compliance - Hospital Identified and Corrected Problem Prior to Investigation and No Violations for Past 6 months
  • Recommended Termination (23 day track) - Immediate and Serious Threat to Patients
  • Recommended Termination (90 day track) - Out of Compliance, But No Immediate or Serious Threat
  • Physician Review
  • Possible Discrimination

RO Determination

  • In Compliance - No Prior Violation
  • In Compliance - Past Violation
  • Not in Compliance - Immediate Threat
  • Not in Compliance - No Immediate Threat

    • Forms Incomplete, But Appropriate Steps Taken

Compliance Tips

  • Review Best Practices and Revise Policies
    • No Prior authorization or Financial Responsibility Forms Before Screening
    • Screening by Qualified Personnel
    • Patient Financial Questions
    • Voluntary Withdrawal
  • Determine Which Facilities Are Provider-Based
    • Any Changes with PPS?
    • Implement Compliance for Extension of EMTALA
  • Provide a Screening Exam (Not Just Triage)
  • Provide On-Call Coverage and Retain Lists for 5 years
    • Enforce Medical Staff Bylaws
    • Caution with Stipends

    • Require as term of Employment or Other Contract

  • Require On-Call M.D.s to Respond Timely
  • Transfer Only if Care Not Available or at Patient's Request
  • Treat OB Patients with Contractions as Unstable
  • Document Acceptance of Receiving Hospital
  • Document Consent to Transfer
  • Complete Physician Certification
  • Send Copies of All Records with Transfer
  • Provide Appropriate Transport
  • Post Signs
  • Investigate Suspected Violations Promptly
  • Know Medical Staff and Hospital Bylaws and Follow Them
  • Consult with Legal Counsel Before Responding to Investigations
  • Educate Staff Beyond E.R.
  • Monitor Compliance
  • Establish Transfer Agreements and Good Communications with Referral Hospitals
  • Avoid Reverse Dumping
  • Establish Mechanisms to Address Questions, Resolve Concerns

Darice McNelis, Esq.
 Phone: 412-562-1854
mcnelisdm@bipc.com

Thomas McElree, Esq.
Phone: 412-562-8918
mcelreetj@bipc.com

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