Congress enacted EMTALA in 1985 in response to situations where hospitals refused care to uninsured patients.
EMTALA imposes numerous obligations on hospitals operating EDs. These include the provision of a "medical screening exam," performed by "qualified medical personnel," to look for an "emergency medical condition" (EMC) for all patients who "come to the ED" seeking care for a medical condition. If an EMC is found, the patient must be stabilized (as defined under EMTALA) within the capability of the hospital or transferred, in a specified manner, if necessary, to complete stabilization. Each element will be considered in turn.
Under EMTALA a "dedicated emergency department" is "any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus that": (1) is licensed by the state as an emergency room or ED; (2) is held out to the public as providing unscheduled care for EMCs on an urgent basis; or (3) provides one-third of its outpatient visits for the treatment of EMCs on an urgent, unscheduled basis.79 Many hospital-owned urgent care centers may meet this definition.
Hospitals must provide a screening examination to any patient who comes to the "dedicated ED" (hereafter "ED") and requests, or has a request made by another, for evaluation or treatment of a medical condition. If a prudent layperson observer would believe the person needed evaluation or treatment for a medical condition, the hospital's obligation under EMTALA is triggered.79 Note that the language says for a "medical condition," not an "emergency medical condition." Other hospital locations, such as labor and delivery, psychiatric intake areas, and urgent care areas, which meet the above definition, are subject to EMTALA obligations as well.80 An infant born alive is considered an individual under the law, and therefore, the same EMTALA obligations apply, including when the infant was born in the ED.31
Emergency Medical Condition
An EMC is a "medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in: 1) 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; 2) Serious impairment to bodily functions; or 3) Serious dysfunction of any bodily organ or part; or with respect to a pregnant woman who is having contractions: 1) That there is inadequate time to effect a safe transfer to another hospital before delivery; or 2) That transfer may pose a threat to the health or safety of the woman or the unborn child."79 For pregnant women with contractions, an EMC exists if there is insufficient time to transfer the patient before delivery or the transfer may pose a risk to mother or child.79 Ultimately, this is a medical decision. If it is determined that no EMCs exists, then EMTALA no longer applies to that patient. It is good practice to note the time that this decision was made. The courts have generally ruled that the physician must be aware an EMC exists before he or she is liable under EMTALA. It is important to understand that for an EMC to be present the patient must have a condition such that the lack of immediate medical attention could result in the consequences outlined above. The rule does not suggest that any particular symptom, including severe pain, is in and of itself an EMC, only that the presence of such symptoms mandates a screening, as described below, to determine if the patient has an EMC.81
Medical Screening Examination
A medical screening examination is the process required to reach, with reasonable clinical confidence and based on the patient's presenting signs and symptoms, the point at which it can be determined whether an EMC does or does not exist.31 This may involve a simple process, such as a brief history and physical examination, or a complex process involving ancillary studies, consultants, and procedures.31
The screening must be the same for every patient presenting with similar symptoms or complaints to be EMTALA compliant. The courts have generally held that so long as screening examinations are performed in a consistent manner across all patients and in accordance with a hospital's own policies, the EMTALA screening obligation has been met.80 This is true even in cases of misdiagnosis. The courts have also held that misdiagnosis and the adequacy of screening are issues of negligence and should be addressed under state malpractice statutes. Nurse triage does not meet the hospital obligation to provide a medical screening examination.80
EMTALA dictates that a hospital may not delay the screening examination and stabilizing treatment to inquire about method of payment or insurance status.82 Hospitals may follow reasonable registration procedures, including inquiring about insurance, provided that it does not delay the medical screening examination or discourage patients from remaining for evaluation.82 Requests for copayments or down payments should be deferred until after the screening examination and any indicated stabilization to avoid the appearance that the request for payment could have deterred a patient from continuing to seek care. Similarly, advance beneficiary notices and managed care organization authorizations should be deferred.80
Providers are allowed to contact a patient's personal physician for advice regarding the patient's history, treatment, and evaluation (but not to obtain prior authorization) as long as this does not delay the medical screening examination.83
Qualified Medical Personnel
The statute states that "The examination must be conducted by an individual(s) who is determined qualified by hospital bylaws or rules and regulations."84 These individuals must be formally recognized by the hospital governing body as qualified to perform this type of examination.31 Although the regulations do not specify what type of provider (e.g., registered nurse, medical doctor, physician's assistant) should perform the medical screening examination, the qualifications of the provider may be retrospectively reviewed and found inadequate.80 The regulations specifically allow a certified nurse midwife to certify false labor.79
The concept of stabilization under EMTALA is not what most clinicians would expect. To have a duty to stabilize, the treating providers must be aware of the presence of an EMC. Under EMTALA, stabilize means to provide "treatment as 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 an individual from a facility or that … the woman has delivered the child and placenta."79 Stabilization does not require that the underlying medical condition be resolved. For example, a patient with difficulty breathing and a history of asthma may be stable once provided with medication and oxygen, despite the fact that the underlying condition of asthma is still present.85
The decision regarding whether or not the patient is stable rests with the physician actually treating the patient.86,87 However, this decision is subjective and may be reviewed with medical hindsight. In an investigation, the burden of proof for stability rests with the transferring hospital.
After stabilization, EMTALA no longer applies, and patients may be discharged or admitted for further care. Once a patient is admitted to inpatient status in good faith, not just for the purposes of avoiding EMTALA obligations, the admitting hospital's EMTALA duty is considered complete.88
Transfers in accordance with local protocols, such as a trauma system protocol, will generally meet the stabilization requirement, but the transferring hospital must stabilize within its means first.31 If a hospital is unable to stabilize the patient, then transfer to a higher level of care is appropriate, and all efforts made to stabilize by the transferring hospital should be documented in the patient chart.31
The U.S. Supreme Court has ruled that the hospital or physician does not need to have an improper motive for a transfer to be successfully sued for failure to stabilize under EMTALA.
Below are the definitions for two specific situations (discharges and psychiatric patients) as written in the State Operations Manual used by EMTALA investigators.
Stable for Discharge "Discharge home with follow-up instructions. An individual is considered stable and ready for discharge when, within reasonable clinical confidence, it is determined that the individual has reached the point where his/her continued care, including diagnostic work-up and/or treatment, could be reasonably performed as an outpatient or later as an inpatient, provided the individual is given a plan for appropriate follow-up care as part of the discharge instructions. The EMC that caused the individual to present to the dedicated ED must be resolved, but the underlying medical condition may persist. Hospitals are expected within reason to assist/provide discharged individuals the necessary information to secure the necessary follow-up care to prevent relapse or worsening of the medical condition upon release from the hospital."85
Therefore, the availability of follow-up and content of discharge instructions may be reviewed should a complaint trigger an investigation. One area where this is problematic is follow-up for uninsured patients. An emergency physician may be liable for a violation, for not requiring an on-call specialist to come in, if a patient is referred for needed follow-up care, such as fracture reduction, and is subsequently refused care—if the emergency physician was aware, or should have been aware, that the follow-up was unlikely to occur. Should there be any question about the patient's ability to obtain the needed follow-up care, the specialist should be asked to come to the ED to see the patient and provide the needed care.86
All discharge instructions should educate patients to return to the ED if they have any problem accessing follow-up care as planned.
Psychiatric Patients "Psychiatric patients are considered stable when they are protected and prevented from injuring or harming him/herself or others. The administration of chemical or physical restraints for purposes of transferring an individual from one facility to another may stabilize a psychiatric patient for a period of time and remove the immediate EMC, but the underlying medical condition may persist, and if not treated for longevity the patient may experience exacerbation of the EMC. Therefore, practitioners should use great care when determining if the medical condition is in fact stable after administering chemical or physical restraints."85 Psychiatric patients present one of the greatest challenges under EMTALA due to the difficulty of determining stability and the lack of available psychiatric resources in most communities.
Under EMTALA, transfer is "the movement (including discharge) of an individual outside a hospital's facilities at the direction of any person" representing the hospital, regardless of that person's employment status with the hospital.79
Hospitals are expected to appropriately transfer patients if they do not possess either the "capability" or "capacity" to care for the patient. Capability would include the availability of technology, specialists with the needed skills to care for a patient, and equipment or supplies required by the patient's condition. Capacity looks at numbers and availability of qualified staff, beds, and equipment and what the hospital "customarily does to accommodate patients in excess of its occupancy limits."79 Therefore, if a hospital routinely opens extra beds to accommodate patients, they must do so if necessary to avoid the transfer of a patient for whom they could otherwise provide care.
Hospitals may not transfer a patient who has not been stabilized unless an appropriate transfer is performed and either (1) the patient requests the transfer and the request is documented in writing, including the patient's awareness of the risks and benefits of the transfer; or (2) a physician documents that the medical benefits of transfer to a hospital with greater resources reasonably outweigh the increased risk to the patient, pregnant woman, or unborn child.89 An "appropriate transfer" is defined in the EMTALA regulations. The following four elements are required for an appropriate transfer.89
The transferring hospital stabilized the patient and, when applicable, the unborn child to the best of its ability, minimizing the risks of the transfer to the patient or, in the case of a woman in labor, her unborn child.
The receiving (accepting) hospital has the capability and capacity to care for the patient and agrees to accept the individual and provide appropriate medical treatment.
The transferring facility sends all pertinent medical records, including test and study results, treatment provided, and the written consent for the transfer. Information not available at the time of transfer must be sent as soon as possible. If the transfer is necessary due to the failure of an on-call physician to appear, that physician's name and address must be provided to the accepting hospital.
The transfer must be performed through qualified personnel and transportation as determined by the transferring physician. The accepting facility may not condition its acceptance on the use of a specific transport service or method.87,90
If a hospital attempts to transfer a patient to meet its EMTALA obligation and the patient, or person acting on the patient's behalf, refuses the transfer, then the hospital's EMTALA obligation is considered met. The hospital is expected to attempt to obtain written informed refusal, including a discussion of the risks and benefits of the refusal of transfer and describe both the facts of the transfer that was proposed and the stated reasons for refusal.91
Hospitals may not penalize a provider who refuses to authorize the transfer of a patient with an unstabilized EMC or take negative action against any employee who reports a violation of EMTALA.89
Duties of Receiving Hospitals
A hospital with specialized capabilities or facilities such as (but not limited to) burn units, trauma units, or regional referral centers may not refuse to accept a transfer from a referring hospital anywhere in the United States when the patient in question requires the specialized capabilities and the receiving hospital has the capacity to treat the patient.92 The failure of centers with specialized capabilities to appropriately accept patients requiring their services has been colorfully referred to as "reverse dumping." This rule applies even if the receiving hospital does not have its own dedicated ED.92
Due to the risk of a citation or lawsuit should a hospital with specialized or higher level services fail to accept a transfer as required by the law, some authors suggest that all transfers be accepted by hospitals with specialized conditions without inquiry into the patient's insurance status.86 Should the accepting hospital find that the transfer was not appropriate or improperly motivated, it is both their duty and remedy to report the transferring hospital for a potential violation of EMTALA.86,93 Delays in accepting a patient in transfer who has an unstabilized EMC to receive or confirm financial information may be considered an EMTALA violation by the receiving hospital.94
Failure to report an EMTALA violation is itself a violation.
Hospitals are required to maintain an on-call list of physicians "who are on the hospital's medical staff or who have privileges at the hospital, or who are on the staff or have privileges at another hospital participating in a formal community call plan in accordance with the resources available to the hospital."95 The call list must specifically name an individual physician with accurate contact information, not solely the name of a group or specialty.96 The stipulation that the hospital provide these services "in accordance with the resources available to the hospital" leaves considerable leeway for hospitals to decide what services to offer. Physicians who are formally on call must assist when requested to determine if an EMC exists, to help stabilize patients, and to accept appropriate transfers. They must do this in a reasonable amount of time.31 Although regulations allow for physicians to be on call at multiple hospitals and to perform elective surgery while on call, a clear plan must exist to provide EMTALA care in these situations.97 It is the responsibility of the emergency physician to determine if the on-call provider needs to appear in person to see a patient. In general, EMTALA does not allow patients to be sent to private physician offices for examination or stabilization, except possibly in cases where the office is part of the hospital-owned facility and on campus with the hospital. One exception may be that of ophthalmologists, who often have specialized equipment not available in many EDs. Hospitals that allow physicians to selectively take call only for their own established patients who present to the ED must ensure the availability of adequate on-call services to all ED patients requiring similar care.96 If the on-call doctor will not come after substantial efforts from the emergency provider, then the patient should be transferred to receive necessary care. The emergency provider must inform the accepting hospital that is why the patient is being sent and provide them with the on-call doctor's name and address (failure to do so is an EMTALA violation).
The widespread adoption of communications technology has made consults by a variety of electronic methods increasingly common. There is no restriction to the use of any means of communication with consultants.96
Table 303-5 outlines some EMTALA do's and don'ts.
TABLE 303-5EMTALA Do's and Don'ts ||Download (.pdf) TABLE 303-5 EMTALA Do's and Don'ts
Treat all patients in the same way.
Provide a medical screening examination appropriate to the patient's complaints.
Appropriately transfer patients you cannot stabilize.
Accept transfers who require specialized services your hospital offers, as long as the specialized services have the capacity for care.
Involve on-call specialists when needed to diagnose or stabilize an EMC.
Educate ED, hospital staff, and faculty on the EMTALA rules.
See patients quickly and efficiently.
Document the completion of the MSE and if an EMC was identified or not during the visit.
Substitute triage for an MSE.
Discourage or coerce patients away from receiving their screening exams and stabilization.
Allow yourself to be convinced that a specialist does not need to come to the ED.
Fail to stabilize within your capabilities.
Delay the MSE for preauthorization or registration.
Fail to follow your own rules, policies, and procedures.
The U.S. Department of Health and Human Services is responsible for enforcing EMTALA at the federal level. A complaint is required to initiate an investigation of a hospital for an EMTALA violation. The complaint may come from a patient, hospital, hospital employee, or anyone who thinks care has been denied someone inappropriately. Hospitals may not penalize employees who report violations.89 Punishments under EMTALA can be severe and may include a hospital's exclusion from participating in Medicare and Medicaid in addition to substantial fines. Providers found to violate EMTALA can also be fined and/or excluded from federal programs, making them nearly unemployable.98
Physicians, particularly on-call physicians, are relatively unaware of their obligations under EMTALA,99 and hospitals should educate their staff regarding EMTALA.88 An EMTALA violation does not imply medical malpractice.
Situations Where EMTALA Does Not Apply or Ceases to Apply
Once a patient is admitted, in good faith, as an inpatient to the hospital for further care, EMTALA ceases to apply. However, EMTALA still applies to patients in the ED and patients on observation status such as patients in an ED chest pain unit, an observation area of labor and delivery, or in observation status within the main hospital even if they are on a unit that also contains patients on inpatient status.80,87,100 Although Centers for Medicare and Medicaid Services regulations do identify that under the above conditions EMTALA does not apply to inpatients, the subject is not settled law as far as the courts are concerned, so careful documentation of why patients were admitted (to validate the good faith clause) and what status they were in the hospital on (to validate that they were an inpatient) is very important.100 Inpatients who subsequently develop an EMC are not covered by EMTALA, even if they are physically moved back to the ED; however, they are covered by the Medicare Conditions of Participation. EMTALA does not apply to outpatients who have already begun a scheduled appointment. EMTALA may not apply during a declared national emergency or pursuant to a state emergency or pandemic preparedness plan following the issuance of a waiver under law.101
Prolonged delays in moving patients from EMS care to hospital care, referred to as "parking," is not acceptable and may be considered a violation.90 This does not mean that every ambulance patient must instantly be taken from the care of EMS, particularly in instances where the hospital may lack capacity or capability to immediately care for the patient.90 The hospital has an EMTALA obligation to the patient once on hospital property.
Any transfer not for medical reasons is considered a patient-requested transfer. The chart should reflect the patient's reason for wanting the transfer. The transfer must still be an "appropriate transfer."
Use of the ED for Nonemergency Services
If a request is made by, or for, a patient presenting for treatment of a medical condition but the "nature of the request makes it clear that the medical condition is not of an emergency nature, the hospital is required only to perform such screening as would be appropriate for anyone presenting in a similar manner to determine" if an EMC exists.102
Withdrawal of Request for Screening
Patients who fail to start or complete the screening and treatment process fall into one of three categories: patients who arrive at the ED and then fail to even begin their medical screening examination (often classified as left without being seen or left before examination); patients who leave or "elope" without informing staff at any point during the evaluation103; and patients who refuse recommended treatment or admission and leave "against medical advice."
In each scenario, the hospital should make a clear, well-documented effort to find a missing patient by overhead paging and a search of the department. The medical record should contain a description of the services offered (examination and treatment) that were refused. The hospital should take all reasonable steps to procure the individual's written refusal on a document that also outlines the risks and benefits of examination and treatment. These issues are very important under EMTALA, as regulations state "that hospitals should be very concerned about patients leaving without being screened. Since every patient who presents seeking emergency services is entitled to a screening examination, a hospital could violate the patient antidumping statute if it routinely keeps patients waiting so long that they leave without being seen, particularly if the hospital does not attempt to determine and document why individual patients are leaving, and reiterate to them that the hospital is prepared to provide medical screening if they stay."
Downgrading a patient's triage level from the level required under hospital protocol risks an EMTALA citation and could form the basis for a civil lawsuit.103,104
Some states have passed laws that impose additional duties or requirements on emergency physicians and hospitals. Such laws should be followed unless they directly conflict with the federal EMTALA rule, in which case the federal statute takes precedence.
In some cases, patients may present to the ED for testing, such as x-rays or blood work, under the order of their personal physician. Because these patients are not requesting examination or treatment of a medical condition, EMTALA does not apply. Should the hospital choose to provide the patient with the testing services, these patients should be differentiated from standard ED patients. Separate paperwork defining consent, that a medical screening examination was not requested (signed by the patient), and interactions with the ordering physician should be recorded. Patients who independently present for testing, such as pregnancy testing, should receive a medical screening examination before testing, and if they refuse the screening examination, they should be referred elsewhere for the requested testing.
A common scenario is the patient brought in by law enforcement for alcohol or drug screening. In these cases, if it appears that the patient should be screened (prudent layperson) or the patient or police request an examination, then the screening examination should be done.
Such programs aim to comply with the letter of the EMTALA law by performing medical screening examinations and then either sending away those patients found not to have an EMC or requesting payment before treatment. The ethical implications of these programs are beyond the scope of this chapter. Physicians and hospitals should consider the legal risk and ethical and moral implications of such programs, particularly in those cases where alternative sources of care are not provided.105
Private Patients in the ED
In some EDs, it is common for staff physicians to send their patients to the ED, with plans to meet the patient in the ED. Although this is acceptable, these patients should go through the standard triage process, and if any concern exists about the presence of an EMC, patients should be evaluated in the standard manner by the emergency physician present and stabilized while waiting for the private physician.
Some hospitals have begun programs in which they promise a patient will be triaged or seen by a doctor within a specific amount of time. These guarantees are problematic from an EMTALA point of view, as the hospital will likely be held to these times during an investigation.
An epidemic of prescription drug abuse in the United States has led to substantial risk for patients and growing difficulties for providers.106 Legislation both enacted and pending in many states attempts to address this problem, often placing emergency physicians in a difficult position.106 While EMTALA indicates that pain may be a symptom suggestive of an EMC, it only requires that the patient with pain receive a medical screening exam consistent with the patient's presenting complaints. Once a patient has been identified as not having an EMC, providers can make reasoned clinical determinations about the appropriateness of opioids and other medications. The Centers for Medicare and Medicaid Services has clarified that the posting of signage that, even when intended as education, discusses restrictions on ED prescribing or use of opioids may discourage patients from receiving their medical screening exam and therefore would be in violation of EMTALA.107 Providers and staff should also not discuss with patients the results of state pharmacy database queries prior to the completion of the medical screening exam to prevent the patient from feeling coerced not to complete their exam.107 The best course in dealing with patients with painful complaints is to provide a medical screening exam each and every time they present to the ED, and once an EMC is determined not to exist, to treat the patient as clinically appropriate based on the clinical scenario, risk for pharmaceutical abuse, and applicable state law.106