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  • Writer's pictureSam Khan

The Emergency Medical Treatment and Active Labor Act: A Broad Reach Across Hospitals and Patients

Updated: Jun 5, 2023



Overview: What is EMTALA?


The Emergency Medical Treatment and Active Labor Act (EMTALA) casts a wide net, affecting almost all hospitals and patients in the United States. It stands as a far-reaching regulation within the health law landscape because of its broad applicability. Its fundamental role is protecting patient rights and ensuring access to emergency care.


EMTALA applies to "participating hospitals" and individual physicians who are on-call. Participating hospitals are hospitals that enter "provider agreements," under which they accept payment through the Medicare program. It's crucial to note, however, that EMTALA extends beyond just Medicare beneficiaries. EMTALA protects all patients, regardless of their insurance status or type. This sets it apart from other healthcare laws and regulations, such as the Stark Law or the Anti-Kickback Statute (AKS), which are limited to Medicare/Medicaid patients.



Understanding EMTALA's Core Provisions


At its most basic, EMTALA sets forth a specific protocol that hospitals and healthcare providers must follow when any patient "comes to the hospital’s emergency department,” and either asks for emergency care, appears to need emergency care to a reasonable layperson, or arrives on the premises by ambulance. This is where EMTALA’s focus on emergency situations comes into play – it's not just about being on hospital property, but the context in which the individual is there. This broad phrasing ensures that anyone who arrives at a hospital's emergency department seeking help, regardless of their insurance status or ability to pay, is covered.


As you might've already noted, the world of health law is full of acronyms and defined terms. As such, all the terms within EMTALA – "comes to the hospital’s emergency department," "medical screening examination," "emergency medical condition," and others – have precise legal definitions under the Act. Understanding these terms is essential, as they are integral to how EMTALA regulates patient care in designated emergency scenarios. Let’s start breaking these down.



I. “Comes to”: Defining the Arrival at the Hospital’s Emergency Department


EMTALA's protections and requirements kick into action once a patient has "come to" the hospital's emergency department. But what does this phrase actually mean under the law? There are three circumstances under which a person is considered to have "come to the emergency department," thus triggering EMTALA's protections:

  1. The Patient Presents at a Hospital Dedicated Emergency Department: If a person presents themselves at a Dedicated Emergency Department (defined below), specifically requesting evaluation or treatment (or if such a request is made on the person’s behalf), they have "come to" the emergency department under EMTALA.

  2. The Patient Appears on Hospital Property in an Emergency Condition: When a person appears anywhere on the hospital property, not just within the DED, and a "prudent layperson" would consider them to be in an emergency condition, they have also "come to" the emergency department.

  3. The Patient Arrives on Hospital Property in an Ambulance: If they are considered to have "come to" the emergency department. However, there's a specific caveat to this condition, which will be explained later.

These scenarios define the triggering event that brings EMTALA's requirements into action. Once a patient has "come to" the emergency department under any of these three circumstances, the hospital's obligations under EMTALA commence.



II. What is a Dedicated Emergency Department Under EMTALA?


A Dedicated Emergency Department (DED) is an integral part of the hospital's infrastructure, and its definition is pivotal in deciding when the hospital's obligations under the Act kick in. A DED is defined as any department or facility of the hospital, regardless of its location on or off the main hospital campus, if it fulfills at least one of the following three conditions:

  1. State Licensing: If the department or facility is licensed by the state as an emergency department, it is considered a DED under EMTALA;

  2. Public Perception: A department or facility is deemed a DED if it is held out to the public as a place that provides care for emergency or urgent conditions. The perception and representation of the department or facility play a significant role in this case; or

  3. Outpatient Visit Statistics: If at least one-third of all unscheduled, outpatient visits to the department or facility are for emergent or urgent conditions, it is classified as a DED.

These three criteria establish a broad scope for what may be considered a DED, reflecting the intent of EMTALA to ensure that emergency medical care is accessible and available when and where it is needed.


III. What Does Hospital Mean?


The definition of "hospital property" under EMTALA is specific and nuanced. Appearing on “hospital property” under EMTALA encompasses the entire main hospital campus, including the parking lot, sidewalk, and driveway. It generally applies to areas within 250 yards of the main building(s).


If an off-campus facility qualifies as a DED, it also falls under the definition of Hospital Property. However, other separate facilities such as medical office buildings, rural health clinics, nursing homes, or patients being seen as outpatients are not included in this definition.


Are Ambulances Considered Hospital Property? When it comes to ambulances, EMTALA's reach extends even beyond hospital grounds. There are two categories here: off-hospital grounds and on-hospital grounds. EMTALA provisions apply to patients who are in a ground or air ambulance that's owned and operated by the hospital, even if the ambulance is not on hospital grounds. This means that a patient who needs emergency care while in a hospital-operated ambulance, no matter where it is, falls under the protection of EMTALA.


On the other hand, if a ground or air ambulance that is not owned by the hospital arrives on hospital grounds, EMTALA applies if they present at the hospital's DED. In essence, once a patient in an outside ambulance arrives at the DED, the hospital assumes EMTALA-related responsibilities for that patient.



A Patient Has Come to the Hospital’s Emergency Department…Now What?


Once a patient has come to the hospital’s emergency department, the hospital is then required to provide the patient with an appropriate “medical screening examination.” There isn't a set legal definition for an MSE, which means the specific nature of the examination can vary. The MSE is a critical step, and its purpose is to assess whether the patient is experiencing an "emergency medical condition," a term that is specifically defined under EMTALA.



I. The Requirement of an Appropriate Medical Screening Examination


EMTALA requires hospitals to provide what's called a medical screening examination (MSE) to patients who present at the emergency department. Here's what you need to know about an MSE. While there's no standardized MSE, it has certain essential components mandated by the Act. It must be thorough enough to allow the hospital to determine whether or not the patient has an emergency medical condition. In other words, the exam should be sufficient to identify if the patient is facing a health emergency that requires immediate intervention. One reason for the absence of a concrete definition is that an MSE necessitates the application of professional medical judgment. Establishing a rigid definition could potentially hinder or limit this professional discretion in a variety of circumstances.


The MSE should fall within the capability of the hospital’s emergency department. This includes the capabilities of on-call physicians, as well as any ancillary services that are routinely available to the emergency department. Despite the lack of a prescribed legal definition, the MSE must still adhere to the hospital’s standard screening procedures in accordance with its established policies and procedures. This means that all patients who present with similar symptoms should receive similar screenings. Importantly, hospitals should not delay providing the MSE to inquire about payment or insurance coverage. EMTALA stipulates that the care of the patient comes first, regardless of their ability to pay.


It's important to pinpoint exactly who is tasked with executing the MSE under EMTALA's guidelines. Participating hospitals are required to keep a list of on-call physicians available to provide further evaluation and treatment to stabilize patients. These on-call physicians must show up at the hospital within a certain amount of time to provide the stabilizing treatment. And while this doesn’t mean that every specialty requires a physician on-call at all times of the day, the hospital must be able to regularly evaluate and stabilize patients. Non-physicians may support these efforts but cannot altogether replace on-call physicians.


EMTALA calls for the involvement of "qualified medical personnel" (QMPs) in performing the MSE. However, this doesn't specifically denote medical doctors; the term refers to any healthcare professionals deemed competent and qualified by the hospital to undertake the task at hand. The responsibility to determine and declare who qualifies as QMPs falls on the hospital. This should be a formal procedure and must be documented in the hospital's bylaws, rules, or policies to ensure transparency and adherence to regulations.


Nurses and other healthcare professionals can also conduct the MSE, provided they are appropriately qualified and have been officially designated as QMPs by the hospital. This extends the role of MSE execution beyond physicians, incorporating a wider range of healthcare professionals in ensuring patient safety and compliance with EMTALA.



II. EMTALA's Response to an Emergency Medical Condition


If it's determined through the MSE that the patient does indeed have an emergency medical condition (EMC), EMTALA obliges the hospital and responsible physician to follow one of two courses of action:

  1. The hospital must provide treatment to the patient until they are stable; or

  2. Alternatively, if the hospital is not equipped to provide the necessary care, it must transfer the patient to another hospital that can. However, this transfer must adhere to specified regulatory safeguards to ensure patient safety.

EMTALA outlines specific criteria for what qualifies as an EMC. Understanding this definition is vital as it determines the hospital's legal obligations under EMTALA.


An EMC is a medical condition that presents acute symptoms of sufficient severity. If immediate medical attention is not provided, the consequences could be:

  1. Placing the health of the individual/unborn child in serious jeopardy;

  2. Resulting in serious impairment of bodily functions;

  3. Leading to a serious dysfunction of any bodily organ or part; or

  4. Resulting in severe pain.

This definition isn't limited to physical health conditions; it also encompasses severe psychological conditions. The determination of an EMC is crucial in the context of EMTALA. If a patient's condition does not meet the criteria for an EMC, the hospital is under no further legal obligation to treat the patient under the provisions of EMTALA.


EMC and Pregnancy: A Special Consideration

Pregnancy introduces unique considerations under EMTALA, particularly when a pregnant woman is experiencing contractions. The Act has specific provisions addressing this situation. For a pregnant woman in the throes of labor, an Emergency Medical Condition (EMC) exists if:

  1. There is inadequate time to safely transfer to another hospital before delivery; or

  2. A transfer may pose a threat to the health or safety of the woman or the unborn child.

It's important to note that a pregnant woman who is not having contractions may still meet the general EMC definition if her condition fulfills the criteria. The obligations under EMTALA for a pregnant woman experiencing contractions conclude under the following circumstances:

  1. The contractions cease;

  2. A physician certifies that the woman is experiencing false labor;

  3. The baby and the placenta have been delivered; or

  4. An appropriate transfer to another medical facility takes place.

The MSE suggests an EMC Exists…Now What?


There are three paths following the determination of an EMC. First, treat to stabilize. Second, transfer appropriately. Third, admit to inpatient care. If no EMC exists, EMTALA surrenders.



I. The Imperative of Stabilizing Treatment


Under EMTALA, hospitals have a clear obligation to provide stabilizing treatment for patients with EMCs, including pregnant women in labor. This obligation must be fulfilled within the hospital's capability and capacity. The term "to stabilize," in the context of EMTALA, means providing necessary medical treatment of the EMC to ensure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility.


In the case of a pregnant woman experiencing contractions, stabilization means that the woman has delivered the child and the placenta, provided there is no time for a safe transfer or if such transfer may endanger the mother or the child.


It is essential to understand that the stabilization process is integral to EMTALA's commitment to protect patients in emergent conditions and to prevent the transfer of patients who have not yet been stabilized.



II. Handling Transfer of an Unstable Patient in an EMC


Even in the midst of an emergency medical condition, there may be instances where the transfer of a patient who hasn't yet been stabilized is necessary. However, EMTALA prescribes certain conditions under which this can occur:

  1. The patient makes an informed written request for the transfer. This means that the patient fully understands the risks involved in the transfer and still elects to proceed.

  2. Alternatively, a physician or a qualified medical person (if a physician is unavailable) signs a certification stating that, in their professional judgment, the medical benefits of transferring the patient outweigh the potential risks. This certification should include a summary of the risks and benefits upon which it is based.

If either of these two conditions is met, the transfer must meet the four requirements of an appropriate transfer. EMTALA guidelines allow for the transfer of patients in an unstable emergency medical condition if the transfer is deemed "appropriate." An "appropriate" transfer must satisfy four key requirements:

  1. Minimized Risk Treatment: The transferring hospital must provide medical treatment within its capacity that minimizes the risks to the individual's health. This could involve a range of procedures or treatments depending on the patient's condition and the hospital's capabilities.

  2. Receiving Hospital's Capabilities and Agreement: The receiving hospital must have space and personnel available for treatment, and must have agreed to accept the transfer. It's important to note that the receiving hospital's agreement does not necessarily have to come from a physician.

  3. Medical Records Transfer: The transferring hospital must send all medical records (or copies thereof) relating to the EMC that are available at the time of the transfer to the receiving hospital. This ensures that the receiving hospital has all the relevant information to continue patient care effectively.

  4. Safe Transfer Conditions: The transfer must involve qualified personnel and appropriate equipment, including life support measures if needed. This requirement is in place to make sure that the patient's condition does not deteriorate during the transfer.

EMTALA mandates that a hospital must accept a transfer of a patient with an unstable EMC if the hospital has "specialized capabilities or facilities" (such as burn units, NICU, etc.) that the transferring hospital lacks, as long as it has the capacity to treat the patient at the time of the request. This requirement ensures that patients receive the specialized care they need when facing emergency medical conditions.


On the other hand, EMTALA doesn't strictly require lateral transfers. These are transfers between facilities that offer comparable resources and capabilities. However, there are exceptions. In case of serious capacity problems, equipment failure, power outages, or similar circumstances at the transferring hospital, a lateral transfer may be necessary. Even in these situations, the accepting hospital must have the "capacity" to treat the patient, or at least have greater capacity than the transferring hospital. This caveat helps in situations where the transferring hospital is unable to provide care due to unforeseen circumstances.


By understanding these stipulations, hospitals can ensure they're in compliance with EMTALA and are providing the best care for their patients.


III. Navigating Patient Refusal of Transfer or Treatment under EMTALA


Patient autonomy is a cornerstone of healthcare. However, in emergency scenarios, it can sometimes lead to challenges. Under EMTALA, when a patient refuses treatment or transfer, specific steps need to be followed to ensure the hospital remains compliant.

  1. Informing the Patient: The patient must first be informed about the risks and benefits of the proposed treatment or transfer. This conversation should be thoroughly documented to prove that the patient was provided with all the necessary information to make an informed decision.

  2. Attempting to Secure Written Refusal: The hospital should take all reasonable steps to secure the patient's written and signed refusal of the treatment or transfer. This is often done using an "Against Medical Advice" (AMA) form. This form provides evidence that the patient was adequately informed and chose to decline the proposed care.

  3. Documenting the Refusal: If a patient refuses to sign the form or any other documentation, their refusal should still be thoroughly recorded in their medical record. The documentation should include details of the information provided to the patient, the steps taken to secure a written refusal, and the ultimate refusal by the patient.

Remember, the goal is to provide the best possible care while respecting patient autonomy and legal obligations under EMTALA. By carefully adhering to these steps, hospitals can navigate the complex scenario of a patient refusing treatment or transfer.


IV. Additional Considerations: Mental Health, Emergency Detention Patients in Police Custody, Intoxication/Incapacity, Legal Blood Draws


There are several other factors to consider when it comes to EMTALA. These include crossing the delicate intersection between MSEs and mental health, navigating situations involving the emergency detention of patients in police custody, addressing the challenges of intoxicated or incapacitated patients, and legal blood draws.


EMTALA's applicability in mental health presents unique challenges due to the complexity of distinguishing between baseline health and emergent conditions. In these situations, stabilization might not be straightforward, especially when restraints are used. Emergency detention may be initiated for safety reasons. Generally, the police cannot consent to treatment on a patient's behalf, however, in cases where law enforcement has a warrant for a blood draw, the hospital can proceed regardless of the patient's consent.


Addressing every aspect under EMTALA can be challenging. You should consider consulting with your preferred health care lawyer. Please feel free to contact me with any questions. It’s essential to develop comprehensive internal policies and training programs to ensure proper compliance.



Compliance: Reporting, Recordkeeping, and Signage under EMTALA


EMTALA imposes on participating hospitals certain reporting and recordkeeping obligations. Let’s take a closer look at some of the basics.


I. The Balance between Compliance and Collaboration


Under EMTALA, hospitals are entrusted with an important responsibility – ensuring the appropriate transfer of patients who are experiencing an EMC. This responsibility also includes reporting non-compliance by other hospitals. When a hospital receives a patient in an unstable EMC from another hospital, it has 72 hours to report any discrepancies regarding the appropriateness of the transfer. For instance, if the patient arrives by private vehicle when their condition necessitated an ambulance transfer, this could be seen as an inappropriate transfer. In some instances, however, the patient might refuse the ambulance transfer. In such a case, the transferring ("sending") hospital should discharge the patient while alerting the receiving hospital that the mode of transfer was against medical advice and out of their control.


However, reporting should not be the first response to perceived non-compliance. Often, the full story may not be immediately apparent. Before reporting to another hospital, communication is crucial to understand the circumstances leading to the situation. Hospitals should call each other to figure out the full story. This collaborative approach can lead to improved patient care while maintaining the standards set by EMTALA.


EMTALA aims to ensure that all patients receive appropriate care during emergencies, regardless of their ability to pay. By following these guidelines, hospitals can work together to maintain the integrity of healthcare and enhance patient outcomes.



II. The Importance of a Central Log in EMTALA Compliance


Keeping track of certain patient information is a critical aspect of EMTALA compliance. Specifically, maintaining a central log for the hospital's DED is a key requirement. What should be included in the central log? The central log should detail all individuals who present to the DED. It should include the individual’s name and the following information:

  1. Did the individual refuse treatment or evaluation?

  2. Was the individual treated or stabilized?

  3. Was the individual treated or admitted to the hospital?

  4. Was the individual treated or transferred to another facility?

The central log should not only be comprehensive but also quickly accessible. If a surveyor requests to see it, the hospital should be able to present it within 30 minutes. Further, hospitals are required to maintain records of patient transfers for at least five years. However, they should follow their record retention policy, which may require longer retention as it may be influenced by other legal, operational, or clinical considerations.


III. The Importance of EMTALA Signage


EMTALA signage serves as an essential communication tool in a hospital's commitment to patient care and its adherence to legal requirements. EMTALA requires the display of signage in specific locations within participating hospitals. The signs must be posted conspicuously in all public entrances, registration areas, and emergency department waiting areas. This widespread visibility ensures that all individuals who enter the hospital premises, regardless of their purpose or point of entry, are informed about their rights and the hospital's obligations under EMTALA.


The primary purpose of EMTALA signage is to inform patients and their families about:

  1. Their right to receive a medical screening examination and necessary stabilizing treatment, regardless of their ability to pay or their insurance status;

  2. The hospital's legal obligation to provide such care under EMTALA; and

  3. The prohibition against the hospital delaying the provision of this care in order to inquire about the individual's method of payment or insurance coverage.

EMTALA Enforcement


The enforcement of EMTALA is primarily carried out by the Centers for Medicare & Medicaid Services (CMS). EMTALA enforcement typically begins when a complaint is lodged by a patient, or a report is made by a hospital that received a patient via an inappropriate transfer.


CMS can take administrative actions against a hospital or physician who is found to be in violation of EMTALA regulations. These actions can include the imposition of civil monetary penalties and, in more serious or uncorrected cases, the termination of the hospital's or physician's Medicare provider agreement.


CMS may refer the case to the Quality Improvement Organization (QIO), a group of health quality experts, clinicians, and consumers organized to improve the care delivered to people with Medicare. The QIO is an entity that CMS may involve in cases where it believes that the alleged EMTALA violation involves clinical aspects. [1] The QIO will conduct an evaluation of safety issues and, if appropriate, may recommend corrective actions.


In particularly egregious cases, CMS can refer the case to the Office of Inspector General (OIG). The OIG has the authority to impose civil monetary penalties on hospitals and physicians who violate EMTALA. These penalties can be severe, with fines reaching tens of thousands of dollars per violation.


There is, understandably, a lot to take in here. But it’s critical to take the necessary steps to ensure compliance with EMTALA. If you have any questions, please feel free to reach out to your preferred health care lawyer. As always, I’m here to help.





 


[1] The QIO reviews the specifics of the case, including the findings of any surveys that have been conducted and any plans of correction that have been proposed or implemented. This review is focused on understanding the clinical aspects of the alleged violation, such as: · Whether the patient had an EMC; · Whether the patient received an appropriate MSE; · Whether the hospital had the capability and capacity to provide stabilizing treatment; · Whether the patient's emergency medical condition was stabilized; and · Whether a transfer was appropriate, and whether the receiving hospital had the required capability and capacity to provide stabilizing treatment.

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