EMTALA Q&A for LLUMC Physicians

Prepared by the Compliance Department and Approved by the Office of General Counsel

These EMTALA Questions & Answers are intended to be used by the reader for general informational purposes only. Due to the highly complex nature of the EMTALA statute, they should not be used as a substitute for professional legal advice.

Additionally, this Q&A specifically focuses on the pertinent EMTALA provisions as they relate to emergency transfers of patients from another hospital (transferring/sending hospital) to Loma Linda University Medical Center (receiving hospital), since most of the EMTALA-implicated situations arising at LLUMC fall within that characterization. 

For specific questions on EMTALA as they relate to individual cases, or to report a suspected EMTALA violation, please contact the Office of Corporate Compliance at ext. 14200.

General Information 

1. What is EMTALA?
   A: The Emergency Medical Treatment and Active Labor Act (EMTALA) is a statute that governs when and how a patient may be (1) refused treatment or (2) transferred from one hospital to another when he/she is in an unstable emergency medical condition. Under the statute’s provisions, no patient who presents himself/herself with an emergency medical condition and who is unable to pay may be treated differently from patients who are covered by health insurance.
2. What is EMTALA's purpose?
   A: The purpose of the EMTALA statute is to deter hospitals from rejecting patients, refusing to treat them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to pay or are covered under the Medicare or Medical programs.
3. Does EMTALA apply to LLUMC?
   A: In general, EMTALA applies to all hospitals that participate in the Medicare/Medical programs and have a dedicated emergency department. Therefore, EMTALA applies to LLUMC.
4. What are the potential penalties for EMTALA violations?
   A: The EMTALA obligations are a condition of the Medicare provider agreement. Thus, CMS is permitted to terminate a provider upon a confirmed violation of EMTALA. CMS also has the authority to conduct complaint and enforcement surveys for EMTALA compliance, and to terminate a hospital’s Medicare provider agreement upon confirming one or more violations of EMTALA.

   Additionally, OIG has the authority to impose civil monetary penalties up to $50,000 against hospitals and physicians ($25,000 for hospitals with less than 100 beds), and/or to exclude a hospital or physician from the Medicare and Medicaid programs for violations of EMTALA that are “gross and flagrant” or repeated.

5. What are the main provisions of EMTALA?
   A: The main provisions of EMTALA are as follows:
   • ny patient who comes to a hospital’s emergency department requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination to determine if he/she is suffering from an emergency medical condition.
   • Financial considerations, including the patient’s insurance coverage (or lack of it), should not be a factor in the decision to provide medical screening and treatment. If there are any inquiries into the patient’s ability to pay, they should not cause a delay in the provision of medical screening and treatment.
   • If the results of the medical screening examination indicate that the patient is suffering from an emergency medical condition, then the hospital is obligated to either provide him/her with treatment until he/she is stable or to transfer him/her to another hospital in conformance with the statute's directives.
   • If the results of the medical screening examination indicate that the patient does not have an emergency medical condition, EMTALA imposes no further obligation on the hospital.
6. What is an "emergency medical condition"?
   A: The statute defines an “emergency medical condition” as:

   “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, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or 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 that the transfer may pose a threat to the health or safety of the woman or her unborn child."
    

   Transfer of EMTALA Patients
    

7. When can a patient be transferred to another facility?
   A: Unless the patient requests a transfer, this depends on whether the patient has become stable - i.e., whether his/her emergency medical condition has resolved. A transfer to another facility before the patient has become stable can only take place if it is an "appropriate transfer" under the statute (refer to No. 17). A transfer of a patient who is not suffering from an "emergency medical condition", or a transfer after the patient has become stable, is permitted and is not restricted by the statute in any way.
8. What is meant by "stabilized"?
   A: The statute defines “stabilized” to mean that no material deterioration of the patient's condition is likely, within reasonable medical probability, to result from the transfer or is likely to occur during the transfer, or, for patients in active labor, the infant and the placenta have been delivered.
9. What are the instances when the transfer of an unstabilized patient is deemed appropriate?
   A: An "appropriate transfer" (a transfer before stabilization which is legal under EMTALA) is one in which all of the following occur:

   • The patient has been treated at the transferring hospital, and stabilized as far as possible within the limits of its capabilities; and

   • The patient needs treatment at the receiving facility, and the medical risks of transferring him/her are outweighed by the medical benefits of the transfer; and

   • The weighing process as described above is certified in writing by a physician; and

   • The receiving hospital has been contacted and agrees to accept the transfer, and has the facilities to provide the necessary treatment to the patient; and

   • The patient is accompanied by copies of his/her medical records from the transferring hospital; and; and

   • The transfer is effected with the use of qualified personnel and transportation equipment, as required by the circumstances, including the use of necessary and medically appropriate life support measures during the transfer.

10. Is the transferring hospital required to contact the closest available hospital for the transfer?
    A: The transferring hospital may contact and request any hospital that may be able to provide treatment necessary to stabilize the emergency condition. There is no requirement that the transferring hospital contact the closest available hospital.

    On the other hand, EMTALA does not permit the receiving hospital to refuse an emergency transfer on the grounds that there is another receiving hospital closer to the transferring hospital that can provide the higher level of care required for the patient. However, this does not preclude the receiving hospital from inquiring of the transferring hospital as to the availability of a closer hospital, as long as it is clearly communicated to the transferring hospital that the inquiry is made for information purposes to understand the circumstances of the transfer, and not as a condition or barrier to the acceptance of the transfer.

11. Can a receiving hospital refuse to accept a transfer?
    A: In general, a hospital with specialized capabilities or facilities may NOT refuse to accept an appropriate transfer of an individual with an unstabilized emergency medical condition who requires specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual.

    CMS has indicated that when determining capacity and physician availability for care of an emergency patient, a consistent standard must be applied for patients who present directly to LLUMC’s ED and to patients with emergency medical conditions requesting transfers from other Emergency Departments. This means that if LLUMC customarily accommodates emergency patients that present directly to LLUMC’s ED in excess of its occupancy limits, i.e., by shifting patient room assignments or calling in additional staff, then LLUMC must make the same type of accommodations for patients with emergency medical conditions requesting transfers from another Emergency Department.
     

12. When is a receiving hospital considered to have specialized capabilities or facilities?
    A: CMS considers a receiving hospital to have specialized capabilities or facilities if it has the capability and capacity to provide a service that the transferring hospital does not have the capability to perform. Hence, any hospital must consider itself a receiving hospital and accept appropriate transfers of emergency patients with unstabilized conditions from other hospitals that do not have the capacity or capability to provide stabilizing treatment, provided such hospital has the capacity and capability to provide the stabilizing treatment. 

    CMS has indicated that when determining capacity and physician availability for care of an emergency patient, a consistent standard must be applied for patients who present directly to LLUMC’s ED and to patients with emergency medical conditions requesting transfers from other Emergency Departments. This means that if LLUMC customarily accommodates emergency patients that present directly to LLUMC’s ED in excess of its occupancy limits, i.e., by shifting patient room assignments or calling in additional staff, then LLUMC must make the same type of accommodations for patients with emergency medical conditions requesting transfers from another Emergency Department.
     

13. What are the specific conditions that compel a hospital to accept a transfer under EMTALA?
    A: In general, a hospital must accept the transfer of a patient if all the following conditions are met:

    • The patient is currently in an emergency department (including an observation unit), another department of the transferring hospital that is a dedicated emergency department (i.e. labor and delivery) or another location on hospital property that is a part of the transferring hospital to which the individual has presented for, or is in need of, emergency services and care; and

    • The individual is not an inpatient (A patient who has been admitted to the transferring hospital, but is boarded in the emergency department pending assignment to an available bed, is deemed to be an inpatient); and

    • The individual has been determined by the treating physician (or other qualified medical professional) at the transferring hospital to have an emergency medical condition; and

    • The emergency medical condition has not been stabilized (or resolved); and

    • The treating physician has determined that the transferring hospital does not have the present capacity and/or capability to provide further examination or treatment that is required to stabilize the individual’s emergency medical condition, or the individual has made an informed request for the transfer; and

    • The transferring hospital has contacted a receiving hospital seeking to arrange the transfer of the individual who has an emergency medical condition that is not stabilized; and

    • The receiving hospital has the specialized services (i.e., the higher level of care) required by the individual, and the capacity and capability to provide those services.

14. What questions can the receiving hospital ask the transferring hospital prior to accepting the transfer?
    A: The receiving hospital may ask questions related to the patient’s medical condition and clinical needs. Specific questions that may be asked include the following:

    • Is the patient in an emergency department (or labor and delivery)?

    • Has there been a determination that the patient has an emergency medical condition?

    • Has there been a determination as to whether the emergency medical condition is stabilized or unstabilized?

    • What are the reasons for the transfer?

    • Does the transferring hospital have the present capability and capacity to provide the required services to stabilize the patient?

      If the receiving hospital determines that the requested transfer is a “lateral transfer”, i.e., the transferring hospital has the capability and capacity to provide the level of service required for stabilizing the patient’s emergency condition, the receiving hospital may decline the transfer. However, if the transferring hospital indicates that it lacks the present capability or capacity to provide the stabilizing treatment required for the patient, the receiving hospital must accept the transfer, as long as the latter has the capacity and capability to do so.

15. What questions should the receiving hospital NOT ask the transferring hospital prior to accepting the transfer?
    A: The receiving hospital should not inquire about the EMTALA patient’s ability to pay or insurance status. This information may be obtained only after the receiving hospital has accepted the patient.

    Additionally, the receiving hospital should not place conditions on the transfer, including requests for the sending hospital to perform more tests, use a specific mode of transport, or take the patient back after the stabilizing services are performed.

16. The receiving hospital believes that the transferring hospital has the capability and capacity to provide the service required to stabilize the patient's emergency condition. However, the transferring hospital indicates otherwise. Can the receiving hospital decline the transfer?
    A:  No. The receiving hospital must accept the transfer. The receiving hospital may subsequently make the appropriate follow-up inquiries and/or report to the appropriate government agency.
17. If the transferring hospital's physician and the receiving hospital's physician disagree over the appropriateness of the transfer, i.e., whether the benefits outweigh the risks, whether the patient has an emergency medical condition, etc., whose judgment should hold greater weight?
    A: CMS has reaffirmed that the treating physician has the responsibility to determine whether an individual has an emergency medical condition, whether the condition is stabilized or resolved, and whether the individual’s condition is stabilized for purposes of transfer and discharge. Additionally, CMS and the courts have reaffirmed that the judgment of the treating physician requesting the transfer will be granted greater weight in determining the patient’s status and clinical needs.
18. When may a hospital refuse to accept a transfer of a patient with an emergency medical condition?
    A: A receiving hospital may refuse to accept a transfer of a patient with an emergency medical condition under five (5) circumstances:

    • The patient is an inpatient at the transferring hospital; or

    • The transferring hospital is not located in the United States (for EMTALA purposes, the United States includes the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Marian Islands); or

    • The patient’s emergency medical condition is resolved. CMS clarified that a patient is deemed “stabilized” if the treating physician (or other qualified medical person) determines within reasonable clinical confidence that the patient’s emergency medical condition has been “resolved”. CMS, however, noted that patient stabilization does not require the resolution of the underlying medical condition. If the receiving hospital is asked to accept the transfer of an emergency patient whose condition is reported by the transferring physician to be resolved, but needs post-stabilization services at a facility providing specialized services not available at the transferring facility, the receiving hospital should confirm with the transferring physician, and document, that the patient’s condition is in fact resolved. In this case, the receiving hospital may advise the transferring hospital that it is wiling to admit and treat the patient subject to financial or insurance clearance, including obtaining prior authorization for the post-stabilization services. Please note that the stabilization of the emergency medical condition results in the cessation of EMTALA obligations; or

    • The receiving hospital does not have the present capacity or capability to provide the emergency medical services required for the patient. Please note that if the receiving hospital’s specialized services are at capacity or otherwise unavailable, CMS may, in the event of an investigation, examine whether the receiving hospital has historically created additional capacity by opening additional beds, moving patients, calling in staff, etc., in order to admit patients in similar circumstances; or

    • The transferring hospital has the present capacity and capability to provide the emergency medical services required for the patient, i.e., the transferring hospital provides the same level of service as the receiving hospital at the time of the transfer. As stated earlier, if the transferring hospital indicates that it does not have the present capacity or capability to provide the required services at the time of the transfer request, the receiving hospital must accept the transfer, even if the receiving hospital believes otherwise.

19. What should I do if I suspect that an EMTALA violation has occurred?
    A: Contact the Compliance Department immediately. The Compliance Department will conduct an internal investigation and take appropriate action. Please note that the statute requires that we report an EMTALA violation within 72 hours from the time we became aware of the violation.

Reference: California Hospital Association Hospital Compliance Manual, January 2010 1st edition