What Is the Emergency Medical Treatment and Labor Act (EMTALA)?
The Emergency Medical Treatment and Labor Act (EMTALA), known as the “anti-dumping law,” was part of the Consolidated Omnibus Budget Reconciliation Act of 1986, resulting from hospitals “dumping” indigent emergency patients.[2] The statute was amended in 1988, 1989, 2003, and 2011.
The law, signed by President Ronald Reagan, was in response to public outrage over a surge in community hospitals transferring unstable emergency patients to public hospitals for financial purposes. EMTALA was the first law that guaranteed individuals a right to healthcare, though it was and continues to be limited to healthcare treating emergency conditions. EMTALA continues to be an unfunded mandate, and hospitals often absorb the cost of treating these uninsured patients needing emergency care.
EMTALA requires that any Medicare-participating hospital that has a dedicated emergency department (DED) must provide a medical screening examination (MSE) to any individual who presents to the hospital (or anywhere within 250 yards of the hospital’s main buildings) requesting treatment. A DED is defined as “any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that meets at least one of the following requirements:
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“It is licensed by the State in which it is located under applicable state law as an emergency room or emergency department;
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“It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
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“During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year,…at least one-third of all of its outpatient visits [are] for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.”[3]
An MSE is defined as an “appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists.”[4]
Treatment must be provided in a nondiscriminatory way, regardless of the individual’s actual or perceived ability to pay for the services, and regardless of diagnosis, race, national origin, or disability. The statute also prohibits “reverse dumping,” where a hospital would refuse to receive the transfer of a patient based on the same criteria.
If an individual presents to the emergency department but is unable to, or fails to, request treatment for themselves, the requirement still stands if a prudent layperson would reasonably believe that the individual needs emergency examination or treatment. If an emergency medical condition (EMC) is determined to exist, the patient must then be stabilized prior to being transferred or discharged.[5] An EMC is defined 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… (i) 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, (ii) serious impairment to bodily [organs]…; or…with respect to a pregnant woman who is having contractions,… (i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or (ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.” Psychiatric disturbances as well as symptoms of substance abuse are also considered under the definition of an EMC.[6]
In some cases, patients can be transferred to another hospital if the EMC that caused the patient to seek care is stabilized (even if an underlying medical condition persists), if the patient requests the transfer, or if the patient requires specialized treatment that cannot be provided at the initial facility, as long as the medical benefits of the transfer outweigh the risks. In all circumstances, a transfer form must be completed prior to the transfer taking place.
Risk Area Governance
The Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health & Human Services Office of Inspector General (OIG) have ultimate oversight responsibility for EMTALA, including conducting investigations and issuing enforcement actions, although violations of EMTALA are also reported to the Department of Justice (for evaluation of possible Hill–Burton Act violations), the Office for Civil Rights (for evaluation of discrimination allegations), the Internal Revenue Service (for evaluation of implications for tax-exempt status), and The Joint Commission (for accreditation review).[7][8]
CMS has adopted and published interpretive guidelines as part of the Medicare State Operations Manual, which provides guidance to state and federal surveyors in their investigation and enforcement of EMTALA. While not considered regulations, the interpretive guidelines are considered the official interpretation of EMTALA and are used to evaluate compliance. CMS published revisions to the interpretive guidelines in 2019.[9] Occasionally, CMS also publishes program memoranda and frequently asked questions regarding EMTALA.[10] The most recent memorandum was published in March 2020 and provides guidance regarding complying with EMTALA during the COVID-19 pandemic.[11] Details of these memoranda are often incorporated into updates of the interpretive guidelines, keeping the these guidelines the most comprehensive source of EMTALA guidance for hospitals and regulators alike.
The enforcement of EMTALA is mainly a complaint-driven process. The interpretive guidelines require a hospital that has received an improper transfer from another hospital to report the violation within 72 hours, or face potential sanctions, including possible misdemeanor charges or termination of its Medicare provider agreement. There is no legal obligation to self-report; however, if a hospital believes that the receiving hospital is likely to report to CMS, there may be some benefit to self-reporting a violation. Hospitals should consider the risks and benefits of self-reporting, which are determined by the specific circumstances and must be evaluated on a case-by-case basis.
If CMS receives a complaint, or otherwise becomes aware of a possible EMTALA violation, CMS most often will direct the state survey agency to conduct a complaint survey of the hospital. CMS may also choose to conduct the survey itself. The surveys are unannounced, and the scope typically expands beyond the violation that was reported. Results of the survey are forwarded to CMS, which then determines whether an EMTALA violation occurred and, if so, determines appropriate penalties. There is sometimes a discrepancy between the state survey agency and CMS due to the depth of EMTALA knowledge of the state survey agency or the interpretation of the regulation. While state survey decisions are important, decision-making authority regarding an EMTALA violation lies solely with CMS. If CMS decides that an EMTALA violation has occurred, it will initiate an investigation that can result in Medicare program exclusion, substantial civil monetary penalties, and corrective actions.
Oftentimes an incident investigated by CMS may lead to the discovery of more than one violation, resulting in significant penalties to a hospital. The physician(s) involved may also face disciplinary actions by state licensing boards’ Quality Improvement Organization hearings and disciplinary actions by the hospital’s medical staff leadership committee.
Common Compliance Risks
Medical Screening Exams and Emergency Medical Conditions
A hospital with a DED is required to provide an appropriate MSE to determine whether an EMC exists. The MSE is a process that entails a variety of medically appropriate examinations and diagnostic testing based on the symptoms or complaints of the patient, in an effort to rule out an EMC.[12] The MSE must be performed by a qualified medical professional (QMP), as defined in the hospital’s bylaws. A QMP is someone formally identified by a hospital to be “qualified to perform the initial medical screening examinations” and who is authorized to request and accept transfers.[13] “While it is permissible for a hospital to designate a non-physician practitioner as [QMPs], the designated non-physician practitioners must be…approved by the governing body of the hospital” to perform MSEs. “Those health practitioners designated to perform [MSEs] are to be identified in the hospital by-laws or in the rules and regulations governing the medical staff following governing body approval.”[14]
Before an MSE is considered complete, all necessary testing must be ordered and performed, and any necessary specialty services (including those on call) must be provided. Additionally, the MSE is considered to be in process for patients who require observation or transfer until an MSE is ruled out or stabilized.
While there is no standard MSE form, the documentation of an MSE must include, at a minimum, notes regarding the initial triage of the patient, a brief history and physical examination of the patient, the diagnostic tests and procedures performed, information regarding results as reviewed by a qualified physician, an assessment by a physician detailing the findings and plan of care, and the condition of the patient upon discharge and upon admission to an inpatient setting or transfer to another facility, including recent vital signs.
While it must be individualized based on the patient’s presenting symptoms, the MSE must be the same that the hospital would provide to any patient presenting with similar symptoms, regardless of their ability to pay and without consideration of any other factors.
Hospital Property
The EMTALA obligation begins when any person comes to a hospital with a DED and requests treatment for an EMC. The regulation expands the entry point into a hospital to include areas within 250 yards of the main hospital buildings in which inpatient services are provided, which includes the entire main hospital campus, parking lots, sidewalks, driveways, and any building owned by the hospital within these 250 yards of the hospital.[15]
EMTALA obligations also exist if a ground or air ambulance are owned by the hospital, even if they are not located on the hospital grounds. EMTALA does not apply to other spaces within the hospital property, such as physician offices, rural health centers, restaurants, shops, or other clinics that participate separately under Medicare and are not owned by the hospital.[16]
Transferring under EMTALA
Several factors must be considered, and procedures followed, when deciding whether to transfer a patient to a different hospital. A transfer is “the movement (including the discharge) of an individual outside a hospital’s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital, but does not include such a movement of an individual who (i) has been declared dead, or (ii) leaves the facility without the permission of any such person.”[17]
Generally, transfers are prohibited if a patient’s EMC has not been stabilized, unless the patient requests the transfer, or the hospital does not have the capability or capacity to stabilize the EMC and opts to transfer the patient to a higher level of care. With respect to an EMC, “stabilized” or “to stabilize” means 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 or, with respect to an ‘emergency medical condition’ as defined in this section under paragraph (2) of that definition, that the woman has delivered the child and the placenta.’”[18]
If the patient’s EMC is stabilized, then the EMC ceases to exist, and EMTALA no longer applies. If the patient’s EMC is not yet stabilized, then a careful analysis of whether the benefits outweigh the risks of transfer should be conducted by the referring physician, discussed with the patient when possible, and documented.
The general rule is that the referring physician has the authority to decide whether the patient should be transferred. The physician at the receiving hospital cannot require any unnecessary steps (e.g., additional testing) prior to accepting the patient in an attempt to delay or avoid the transfer; however, they are permitted to offer guidance to the referring physician if appropriate. The receiving hospital must accept the patient if it has the capacity and capability to treat the patient. During the discussion regarding the patient, the receiving hospital may obtain information to determine whether it has the capacity and capability to meet the needs of the patient. If the receiving hospital believes the referring physician misrepresented the patient’s condition, or otherwise transferred the patient inappropriately under EMTALA, it has an obligation to report the transferring hospital or physician to CMS.
Transfer Form/Physician Certification
It is important to comprehensively and accurately document the details of the transfer on the transfer form. Failure to do so puts the transferring physician and transferring hospital at risk. A summary of the benefits and risks should be documented on the transfer form with enough detail to clearly articulate why the transfer took place.
If the patient is in active labor, the physician must certify that the expected benefits of transfer outweigh the risks to both the pregnant patient and unborn child. “‘Labor’ is defined to mean the process of childbirth beginning with the latent or early phase of labor and continuing through the delivery of the placenta. A woman experiencing contractions is in true labor, unless a physician, certified nurse-midwife, or other qualified medical person acting within his or her scope of practice as defined in hospital medical staff bylaws and State law, certifies that, after a reasonable time of observation, the woman is in false labor.”[19]
The patient’s vital signs at the time of transfer should be documented as part of the physician’s evaluation of the EMC and appropriateness of the transfer. If there is a significant gap between the time when vital signs were last taken and the time of the transfer, it would be difficult for a physician to determine whether the patient’s EMC is stable or unstable and whether the benefits and risks remain current and pertinent to the transfer. CMS could find that a violation occurred if the transfer form is incomplete, lacking enough details to outline exactly what the risks and benefits were at the time of transfer, or if the patient’s condition upon arrival at the receiving hospital does not match what was documented on the transfer form.
Transfers between Hospitals with Common Ownership
Common ownership of hospitals is not an exception under EMTALA. Despite EMTALA being silent on the issue, the interpretive guidelines and other industry resources make it clear that even hospitals under the same license (but with separate emergency departments) are expected to individually comply with EMTALA. Transferring patients because a hospital system offers certain specialty services in one hospital versus another is prohibited under EMTALA, unless the patient requests the transfer, or the physician certifies that the benefits of the transfer outweigh the risks for the patient.[20]
Transferring patients for physician’s convenience is prohibited. This includes situations in which a physician is providing care to patients in Facility A, but the patient with the EMC has arrived in Facility B. However, a transfer of this nature is permissible if a community call plan exists that allows for these transfers due to limited community resources.[21] A formal community call plan must include a “clear delineation of on-call coverage responsibilities; a description of the geographic area to which the plan applies; a signature by a representative of each hospital participating in the plan; assurance that any emergency medical services (EMS) protocol includes information on community on-call arrangements; a statement specifying that even if an individual arrives at a hospital that is not designated as the on-call hospital, the hospital still has an obligation under EMTALA to provide an MSE and stabilizing treatment within its capacity; and an annual assessment of the community call plan by the participating hospitals.
Clinically Stable vs. Stable under EMTALA
Clinicians point out that there is a discrepancy between standard medical terminology referring to stabilization and the EMTALA definition of stabilization. As noted above, the definition of “stabilized” under EMTALA is that “no material deterioration of the [patient’s] condition is likely, within reasonable medical probability, to result from or occur during the transfer” or discharge of the patient from the facility.[22] In the case of a patient in labor, “stabilized” means that the patient has delivered the child, along with the placenta.
To be stabilized does not mean that the underlying medical condition has been resolved, but instead refers to the resolution of the EMC determined to be present at the time of the MSE. Sometimes it will be necessary for those patients classified as unstable under EMTALA to be transferred if the hospital does not have access to the services or equipment needed to evaluate or treat the patient. Patients transferred to higher levels of care are usually not considered stable under EMTALA. In the case of a patient in labor, this means that unless documented benefits outweigh the risks, transferring the patient to another hospital may be an EMTALA violation, even if the hospital does not have a designated obstetrics service.
Capacity and Capability
EMTALA defines capacity as “the ability of the hospital to accommodate the individual requesting examination or treatment.”[23] It encompasses considerations such 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.”[24] CMS’s interpretive guidelines further state, “the capacity to render care is not reflected simply by the number of persons occupying a specialized unit, the number of staff on duty, or the amount of equipment on the hospital’s premises.”[25]
EMTALA defines capability as the “physical space, equipment, supplies, and specialized services that the hospital provides” and “the level of care that the personnel of the hospital can provide within the training and scope of their professional licenses. This includes coverage available through the hospital’s on-call roster.”[26]
EMTALA requires that a hospital with specialized capabilities must accept patients transferred from a hospital lacking such capabilities if the receiving hospital has the capacity to treat the transferred patient.[27] In order for a hospital to refuse a transfer of a patient due to capability or capacity, a hospital must first be sure there is no way to gain the capability or capacity, and that it does not have a history of increasing capacity that would allow them to accept the transfer. CMS is not sympathetic to the “no capacity” argument, unless the hospital has documentation proving that there was no capacity at the time.
Call Requirements
EMTALA states that hospitals with DEDs are required to maintain a list of physicians who are on medical staff or have privileges at the hospital and who are on call to provide consultation or treatment to stabilize a patient with an EMC as necessary. All specialty services usually offered by the hospital to inpatients are expected to be included in the call schedule and made available to patients being treated in the emergency department. The list must include individual physician names, including specific contact information of how to reach them. Hospitals must have policies that specify who is required to take call, whether physicians can take call at more than one hospital at a time, whether physicians can perform elective surgeries while they are on call, and what the expected time to respond is (usually 30 minutes).[28] Lack of an appropriate call system and disciplinary action against physicians who fail to respond when called puts hospitals at risk for violations. Additionally, physicians who fail to respond to a call (while scheduled to be on call) are also susceptible to citations from CMS.[29]
Pregnant Patients
Understanding the EMTALA requirements regarding pregnant patients is key to ensuring full compliance when treating patients who are pregnant and experiencing labor. While initially EMTALA stood for the “Emergency Medical Treatment and Active Labor Act,” in an early amendment to the regulation, the word “active” was removed to include all stages of labor, from early contractions through the delivery of the placenta. This eliminated the ability to argue that a patient in early stages of labor were not in “active” labor and therefore that EMTALA didn’t apply to the situation. EMTALA now stands for “Emergency Medical Treatment and Labor Act”.
A pregnant patient experiencing contractions is considered to be in labor unless the physician observing the patient over a reasonable period of time certifies that the patient is in false labor. In the case of pregnant patients, the labor and delivery unit of a hospital with a DED must also comply with EMTALA. The MSE for pregnant patients presenting to the labor and delivery unit may be modified from the normal MSE that a patient would receive in the DED, unless the physician determines that they should expand the MSE to other areas (e.g., if the patient is experiencing unknown abdominal pain).
Psychiatric Patients
DEDs must treat psychiatric patients according to EMTALA. For patients presenting at an acute hospital with psychiatric symptoms, a full medical assessment must be completed prior to a mental health assessment, as part of the MSE. Patients must be stabilized medically first, their psychiatric conditions determined subsequently. The MSE must rule out any organic traumatic injuries or toxic causes of the psychiatric symptoms. CMS expects, at a minimum, that patients presenting with depression, suicidal ideation, altered mental status, self-mutilation, drug overdose, delusion, or who are violent be provided a mental health assessment as part of the MSE by a QMP. Hospitals must continue to monitor patients with psychiatric symptoms until their departure from the hospital.
Frequent Patients
Even patients who frequently visit the hospital have rights under EMTALA. These patients must receive a full MSE on every unique visit they make to the DED. In cases where the individual has refused care or left against medical advice but then changed their mind, the patient must receive a new MSE for each visit. Depending on the circumstances, prior testing results may be referenced if it is believed that no changes have occurred since the tests were conducted.
Sexual Assault Nurse Examiner (SANE)
If an individual presents to the DED for an examination related to a sexual assault, the hospital must still comply with EMTALA requirements (i.e., MSE, stabilization, or appropriate transfer). Hospitals may decide to incorporate the SANE nurse into the MSE procedure to ensure the MSE meets all of the needs of the patient and law enforcement, if appropriate. If the SANE nurse is at another hospital, the patient must receive an MSE and stabilization prior to transfer to the other hospital for evaluation. Hospitals may decide to set up an arrangement where a SANE nurse would travel to the patient in order to avoid the need to transfer a patient who has experienced trauma.
Scheduled Outpatient Visits
If a patient is presenting to an outpatient setting, even if on hospital property, the hospital is not required to perform an MSE unless the individual requests emergency medical treatment, or a prudent layperson would believe that the individual needs emergency medical treatment. Documentation showing the scheduled appointment should exist and be maintained. Patients being sent to the DED for tests should be considered to need an MSE under EMTALA, even if they have orders for the tests.
Law Enforcement/Blood Draws
If a patient is brought into the DED by law enforcement requesting a blood alcohol test, it is up to the hospital personnel to determine if an MSE is required. If the individual requests treatment, has an obvious injury, is reported to have been unconscious, has impaired memory, has been involved in a major auto accident or significant fall, or has significant impairment from what appears to be intoxication, then the hospital must provide an MSE.
However, if the individual does not present with any of these symptoms or red flags, does not request care, and is brought in by law enforcement for a blood alcohol test only, EMTALA screening is not required.
Hospitals should document their decision regarding these individuals carefully to be able to show CMS that an MSE was either conducted or deemed not appropriate given the presenting factors. Documentation of a law enforcement officer refusing to allow the hospital to perform an MSE should also be entered into the record, if appropriate.
Central Log
EMTALA requires that a hospital maintain a central log of all individuals who have come to the DED seeking treatment to track the care provided to these individuals. The log must indicate whether these individuals were treated, admitted, stabilized, transferred, discharged, refused treatment, or denied treatment. The central log may be kept as multiple logs or within the hospital’s electronic medical record, if allowed by state law. The ability to produce the log quickly upon a surveyor request is critical. The interpretive guidelines instruct surveyors to review the central log going back at least six months. Incomplete entries are likely to result in a citation by CMS.
Signage
EMTALA requires hospitals with DEDs to post signs that provide the public with information about their rights under EMTALA. Signs should be posted in conspicuous locations seen by all members of the public entering the hospital, including in the DED and in labor and delivery units. Signs should be written in wording that is clear and understandable by the general public. Signs must be printed in English and in other major languages that are common to the geographic area of the hospital.
A sign must be readable from a distance of 20 feet or from the anticipated angle and distance of members of the public who would be reading it, depending on where the sign is posted. The sign must include a reference to whether the hospital participates in the state Medicaid program.[30] Some states have adopted additional EMTALA signage requirements relating to emergency care. No information that could be interpreted as discouraging individuals from entering the DED for care should be included on the sign.[31]
Sample EMTALA sign language:
It’s the Law! If You Have a Medical Emergency or Are in Labor
You have the right to receive, within the capabilities of this hospital’s staff and facilities:
• An appropriate medical Screening Examination.
• Necessary Stabilizing Treatment (including treatment for an Unborn child) and if necessary.
• An appropriate Transfer to another facility even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid.
This hospital (does/does not) participate in the Medicaid program.[32]
Disasters
During a national emergency, a hospital’s EMTALA obligations remain in full effect until all of the following three conditions are met:[33]
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The federal government declares a national emergency.
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The United States Department of Health & Human Services has declared a public health emergency.
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The United States Department of Health & Human Services has issued a waiver that excuses or suspends one or more requirements of EMTALA.
The hospital must be located within the emergency area that is covered by the declaration of the emergency and activate its disaster protocol. Additionally, the state must activate an emergency preparedness plan or pandemic preparedness plan in the emergency area, and the redirection of individuals to other hospitals for medical screening must be consistent with the state plan.[34]
Reporting
A hospital is required to report any hospital it believes to have violated EMTALA to CMS or the state survey agency as soon as reasonably possible. The interpretive guidelines state that reports should be made within 72 hours of the occurrence. Failure to report may subject the receiving hospital to termination of its Medicare provider agreement.
To determine whether the transfer was a violation of EMTALA, the receiving hospital may choose to contact the referring hospital and let its staff know that it is investigating the transfer as a possible violation. It is possible that the transferring hospital will provide information or documentation that reveals that no violation occurred and therefore the receiving hospital has no obligation to report the incident. If the transferring hospital determines that a violation has occurred, it should consider reviewing the incident and implementing corrective actions, if appropriate, prior to the state or CMS survey in an effort to prevent formal findings or termination of the Medicare provider agreement. This notification by the receiving hospital also contributes to the collegial relationship between the two hospitals, which may allow them to problem-solve together the community issues that lead to unintentional violations.
Where No EMTALA Obligations Exist
EMTALA obligations do not exist if an individual presents to an off-campus location of a hospital that is not a DED, if an individual is receiving outpatient services in the hospital (and does not require emergency medical treatment), is or becomes an inpatient within the hospital, or is an individual who presents at a location for a service that is not considered part of the hospital for Medicare purposes (e.g., a skilled nursing facility).[35]
Addressing Compliance Risks
Conduct Relevant Policy Reviews
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Review EMTALA/transfer policies to ensure that they are up to date and comprehensive and that they address EMTALA obligations and transfers.
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Review the call policy to determine if adequate and appropriate coverage is in place to satisfy EMTALA requirements.
Transfer Form Review
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Review the transfer form and confirm compliance with EMTALA requirements.
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Conduct audits of transfers to confirm that the transfer form is properly completed, including documentation of risks and benefits as well as of vital signs taken immediately prior to transfer.
Medical Screening Examinations
Conduct audits to ensure caregivers are conducting an MSE prior to requesting payment information from patients.
Maintain a Central Log
Regularly audit the central log, which ensures that the hospital maintains the required log of all those who come to the emergency department for treatment.
Conduct Compliance Training
Hospital staff should receive training so that they understand the basics of EMTALA. More in-depth training should be provided to emergency department staff and security personnel. Regular refresher trainings should also be conducted.
Conduct Incident Debriefs
Hospitals should conduct an incident debrief if they become aware of an EMTALA violation. The debrief should be focused on determining what lead to the violation, whether the incident should be self-reported, whether disciplinary action is appropriate for those who caused the violation, whether the process needs to be reviewed to ensure it’s adequate, and whether additional refresher training is warranted.
Possible Penalties
EMTALA compliance is a condition of the Medicare provider agreement, and as such, violations of EMTALA can result in termination of the Medicare provider agreement by CMS. If CMS has determined that an EMTALA violation has occurred, it may issue a 23-day termination notice, a 90-day termination notice, or no termination at all (most likely option if corrective actions were put in place by the hospital prior to the enforcement survey by CMS or the state).[36] Additional corrective actions (such as staff training or revisions to forms, processes, and/or signs) may be required of the hospital by CMS if no termination notice is issued.
If found to have violated EMTALA, the OIG has the authority to impose civil monetary penalties (CMPs) of up to $111,597 to the violating hospital or physician, for each violation.[37] Multiple violations can be found related to the same patient (e.g., failure to screen patient, failure to stabilize patient, and transferring unstable patient). For hospitals with fewer than 100 beds, the maximum fine is $55,800 per violation. The maximum amount of these fines is now subject to annual adjustment for inflation, and was last updated in 2020.[38] The previous maximum amount of $50,000 had not been adjusted for inflation since the passing of EMTALA in 1986; the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 updated the fine for the first time, and it has subsequently been increased each year in accordance with the Consumer Price Index. Additionally, the OIG may exclude a hospital and/or physician from participating in federally funded healthcare programs as a result of serious or repeated EMTALA violations.
Sometimes a situation involving one patient may result in multiple violations of EMTALA, which could mean extensive penalties being issued. Additionally, CMS and the state often review multiple transfer forms, six months of the central log, or other documentation if they are conducting an on-site investigation, and, as a result, they may find additional violations that the hospital or physician(s) could be held accountable for.
Compliance Resources
Stephen A. Frew and Kris Giese, EMTALA Field Guide, Fourth Edition
The EMTALA Field Guide is an invaluable resource to compliance professionals, in that it provides information about the rule, how the rule is typically applied in hospitals, what the documentation requirements of that rule are, and cautionary advice on what the authors have seen as a consequence of noncompliance.
Brooke Bennett Aziere et al., AHLA Health Care Compliance Legal Issues Manual, Fifth Edition, American Health Lawyers Association
This resource provides information and guidance on a variety of healthcare compliance topics, including EMTALA. With a chapter dedicated to EMTALA, it’s a great resource focused on the regulation itself, written for healthcare lawyers but useful to healthcare compliance officers as well.
M. Steven Lipton, EMTALA Manual, California Hospital Association
M. Steven Lipton is a well-known EMTALA expert, which is why the California Hospital Association asked him to write the EMTALA manual. While the book is intended for California hospitals, it has great information for all hospitals regardless of their state as the California regulations are carved out in separate sections, making it easy to know what information is relevant to hospitals in other states.
Centers for Medicare & Medicaid Services
State Operations Manual
“Appendix A - Survey Protocol, Regulations and Interpretive Guidelines for Hospitals”
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_a_hospitals.pdf
Risk Takeaways
Main points of interest:
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The referring physician has the authority to decide whether the patient should be transferred.
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Lack of an appropriate call system and disciplinary action against physicians who fail to respond puts a hospital at risk for violations.
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As of 2020, physicians and hospitals face penalties of up to $111,597 (or $55,800) for each violation.
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EMTALA requires that a hospital with specialized capabilities accept patients transferred from a hospital lacking such capabilities, as long as the receiving hospital has the capacity.
Areas to watch:
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Medical screening exams and emergency medical conditions
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Hospital property
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Transferring a patient with an EMC
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Transfer forms and physician certification
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Transferring between hospitals with common ownership
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The difference between “clinically stable” vs. “stable” under EMTALA
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EMTALA’s definitions of capacity and capability
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Call requirements
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Treatment of pregnant patients, psychiatric patients, and “frequent flyer” patients
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Sexual assault nurse examiners
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Scheduled outpatient visits
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Law enforcement/blood draws
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The hospital’s central log
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EMTALA signage
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Emergency care during national disasters
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Reporting noncompliant hospitals
Law that applies: Emergency Medical Treatment and Labor Act (EMTALA); Examination and treatment for emergency medical conditions and women in labor ( 42 U.S.C. § 1395dd ).
Addressing compliance risks:
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Conduct relevant policy reviews. Review EMTALA/transfer and call policies to ensure they are current and EMTALA compliant.
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Conduct a transfer form review. Review the transfer form and confirm EMTALA compliance.
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Audit the process of Medical Screening Examinations. Audit the process to confirm that caregivers conduct a medical screening examination prior to requesting payment information from patients.
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Audit the central log. Review the central log to ensure the log tracks patients who come to the emergency department for treatment.
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Audit transfers. Conduct audits of transfers to confirm that the transfer form is properly completed.
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Conduct compliance training. Train hospital staff on the basics of EMTALA. Emergency department staff and security personnel should receive more in-depth training.
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Conduct debriefs. Hospitals should conduct an incident debrief if they become aware of an EMTALA violation. The debrief should be focused on determining what lead to the violation, whether the incident should be self-reported, whether disciplinary action is appropriate for those who caused the violation, whether the process needs to be reviewed to ensure it’s adequate, and whether additional refresher training is warranted.