Appendix D

EMTALA

The Emergency Medical Treatment and Labor Act is a Federal law enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd). Referred to as the “anti-dumping” law, it was designed to prevent hospitals from refusing to treat patients or transferring them to charity or public hospitals because they were unable to pay or had Medicaid coverage. EMTALA requires hospitals with emergency departments to provide emergency medical care to everyone who needs it, regardless of ability to pay or insurance status. Under the law, patients with similar medical conditions must be treated consistently. The law applies to hospitals that accept Medicare reimbursement, and to all their patients, not just those covered by Medicare.

Hospitals have three basic obligations under EMTALA

• First, they must provide all patients with a medical screening examination to determine whether an emergency medical condition exists without regard for ability to pay for services.
  
  
• Second, where an emergency medical condition exists, they must either provide treatment until the patient is stabilized, or if they do not have the capability, transfer the patient to another hospital.
  
  
• Third, hospitals with specialized capabilities are obligated to accept transfers if they have the capabilities to treat them. Medical care cannot be delayed by questions about methods of payment or insurance coverage.

No further EMTALA obligations exist if an appropriate medical screening examination identifies no emergency medical condition. No further EMTALA obligations exist if an identified emergency medical condition is stabilized. Additionally, the latest regulations now recognize that a patient with an emergency medical condition may be discharged with a plan to have subsequent treatment provided as an outpatient if such a plan is consistent with medical routine and does not jeopardize the patient’s health.

EMTALA governs how patients may be transferred from one hospital to another. Under the law, a patient is considered stable for transfer if the treating physician determines no material deterioration will occur during the movement between facilities and that the receiving facility has the capacity to manage the patient’s medical condition. EMTALA does not control the transfer of stable patients; however, patients with incompletely stabilized emergency medical conditions still may be transferred under EMTALA if one of two conditions exists, as follows:

• The patient (or someone acting on the patient's behalf) provides a written request for transfer despite being informed of the hospital's EMTALA obligations to provide treatment.
  
  
• A physician certifies that medical benefits reasonably expected from transfer outweigh the risk to the individual.

Once a decision is made to transfer the individual, the following steps must be taken:

• The transferring hospital must provide all medical treatment within its capacity, which minimizes the risk to the individual's health.
  
  
• The receiving facility must accept the transfer and must have space available and qualified personnel to treat the individual.
  
  
• The transferring hospital must send copies of all medical records related to the emergency medical condition. If the physician on call refuses or fails to assist in the patient's care, the physician's name and address must be documented on the medical records provided to the receiving facility.
  
  
• Qualified personnel, with the appropriate medical equipment, must accompany the patient during transfer. The transferring physician, by law, has the responsibility of selecting the most appropriate means of transport to include qualified personnel and transport equipment.

Under EMTALA, patient care during transport is the responsibility of the transferring physician/hospital, until the patient arrives at the receiving facility. The transferring physician is also responsible for the order to transfer and for the treatment orders to be followed during the transport. This may conflict with State statutes, which in some instances, allow only authorized medical direction physicians to give orders to EMS personnel. EMTALA does not reference the transport service and its medical director, leaving ultimate medical responsibility and its transition during transport open for interpretation.

The legislation poses several additional complexities for individual hospitals and for an integrated EMS system in which transfers can play a considerable role:

• First the level of service required before a patient transferred may not be clear; for hospitals with comparatively minimal emergency departments or with extremely overcrowded EDs, pressures for staffing and equipment may be intense.
  
  
• Second, acceptable grounds for transfer need to be clearly defined. In some cases, the primary reason for transfer is explicitly defined, but many other cases may be less conclusive.
  
  
• Third, who makes the assessment to determine that a patient is stable (and able to be transferred) or unstable may be a critical factor. Decisions may differ depending on the level of the practitioner, or between practitioners of the same level, or between the responsible practitioner at the transferring facility and the interfacility transfer team or its medical director.

As the scope of EMTALA has widened in an effort to make the law more effective, existing weaknesses in the delivery of care have created new problems.

In the binding regulations published in 1994, the requirements for basic screening and stabilization pertained to patients anywhere on hospital property, including ambulances owned and operated by the hospital.

Since EMTALA was enacted, the national ED patient volume has increased and during the same time period, the number of hospital EDs has declined. As a result, fewer resources are available to meet an increasing legal obligation.

The discussion in the interpretive guidelines and case law obligated a hospital to accept an unstable patient if it has the capacity and has any equipment that the patient’s condition requires that the referring hospital lacks. This disproportionately expands the obligations of EDs with more sophisticated capabilities, and increases the obligations placed on on-call physicians. Although EMTALA obligates hospitals to have a roster of on-call physicians who can complete medical screening examinations and provide stabilization for the services the hospital offers to its community, many hospitals are not able to fill their on-call rosters.

A recent decision by a Federal appeals court concluded that a patient coming to the ED triggers EMTALA obligations not only when the patient is on hospital property, but also while traveling toward the hospital. So, even when the decision to divert ambulance patients is reasonable, the ED may still be liable for EMTALA violation.

As providers grapple with new burdens, they confront difficult challenges that are a logical consequence of those new responsibilities. The net impact of these changes has resulted in a decrease in the availability of the services that the law was intended to promote.