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Frequently Asked Questions about the Emergency Medical Treatment and Active Labor Act (EMTALA)
CONTENTS
1. What is EMTALA?
2. What is the purpose of EMTALA?
3. Who is covered?
4. What are the provisions of EMTALA?
5. What is an "emergency medical condition"?
6. What are the provisions for pregnant women in active labor?
7. What if an emergency medical condition is not properly diagnosed at the
transferring hospital?
8. Can the hospital inquire about the patient's ability to pay?
9. When can a patient be transferred to another facility?
10. What is meant by "stabilized"?
11. What is an appropriate transfer?
12. What if the patient refuses examination and/or treatment?
13. What if the patient requests transfer?
14. Does EMTALA apply only to E.R. patients?
15. Does EMTALA apply only to people without insurance?
16. What obligations are imposed on receiving hospitals? (including a
discussion of the "snitch rule")
17. What obligations are imposed on ambulance services?
18. What about the transferring hospital's responsibility regarding ambulance
services?
19. What rules apply to patients who are being transported to a hospital via
ambulance?
20. What penalties are imposed for violations?
21. Does civil liability attach for claims under EMTALA?
22. How does this statute affect malpractice claims?
23. Doesn't EMTALA simply restate in a different way the general obligation to
provide appropriate treatment when it is needed?
24. What other resources are available on this subject?
SPECIAL SITUATIONS
1. What are the requirements of EMTALA for ER staffing and call lists?
2. What if the patient leaves the E.R. before he undergoes a triage assessment?
3. Does the initial assessment need to be done by a physician?
4. What about specialty care hospitals such as pediatric hospitals and the
like?
5. What are the implications under EMTALA for a "single entry" method
of evaluation of mental health recipients?
SPECIAL NOTE
What is the 250-yard rule and how does it affect these issues?
A preliminary note:
As is the case with any legal
inquiry, the interpretation of this statute and its provisions as applied to a
particular situation is subject to varying conclusions depending on the facts
of the case and is also subject to judicial interpretation, with all of its
inherent fallibility and unpredictability. The law is not a discipline which
provides its guidance in sharply-defined areas of black and white. Most legal
areas present multiple shades of gray, and this applies to EMTALA just as
strongly as (and in some respects more strongly than) any other area. A lawyer
often cannot tell a client "what the law is"; he can do no more than
offer a prediction of what a court will find the law to be.
The field of medicine, likewise, has
many uncertainties and gray areas, and decisions made in its sphere are based
on subjective assessments and conclusions based on clinical judgments, rather
than on objectively deduced truths. An area in which clinical medical decisions
must be made, often within a short period of time, is also subject to being
critically reviewed under the microscope of expert opinion testimony in the
event of later litigation.
An area of inquiry in which legal
considerations and medical principles overlap, then, is one where very little
can be clearly defined and demarcated in general terms in advance and in a
vacuum, without regard to a particular factual situation.
The following is intended to provide
some general guidance on the statute, the regulations which implement it, and
the reported cases which interpret it. It is not a substitute for sound legal
advice from a knowledgeable attorney familiar with the law, the facts of a
specific case, the hospitals and physicians involved, the nature of the medical
problem at issue, and the jurisdiction in which a lawsuit is pending or may be
filed.
The author of this FAQ does not
intend to create an attorney-client relationship by distributing it, and does
not invite or expect any person to rely on it as legal advice or a substitute
for legal advice. What is contained herein is no more than general information
and guidance about a controversial and developing area of medicine and law.
Reliable legal advice must come from your own attorney.
TERMINOLOGY USED
EMTALA - The Emergency Medical Treatment and Active
Labor Act
COBRA - The Comprehensive Omnibus Budget Reconciliation Act of 1986 (See
Section 1 below)
HCFA - The Health Care Financing Administration - previous name for CMS
CMS - Centers for Medicare and Medicaid Services, a division of the Department
of Health and Human Services. Responsible for the Medicare program and the
development and enforcement of regulations on EMTALA.
Transferring hospital - A facility at which a patient is seen initially and
whose personnel determine that transfer to another facility is warranted
Receiving hospital - A facility to which a patient is transferred; it may or
may not constitute a "regional referral center" as that term is used
elsewhere in the Medicare statute and (at one point) in EMTALA.
METHODOLOGY
The primary focus of this FAQ is on
the statute, found at 42 USC 1395dd et seq. (This notation style means that the
statute is found in volume 42 of the United States Code, section 1395dd and the
following sections.)
Several of the sections below
include a subsection which identifies additional requirements imposed under the
regulations adopted by CMS. The regulations were enacted in June 1994, some
eight years after EMTALA was first passed and required that the regulations be
drafted. The regulations are found at 42 CFR 489.24, except as may be noted
below. They were published at 59 Fed Reg 32120 et seq, dated June 22, 1994.
Several sections include references to cases which have been decided by courts.
No attempt is made to be comprehensive.
Reference will be made on occasion
to proposed revisions to the regulations issued in May 2002, but readers should
be cautioned that these changes are not yet in effect. They are expected to be
finalized, no doubt with some changes, by late 2002.
-----------------------------------
1. What is EMTALA?
The Emergency Medical Treatment and
Active Labor Act is a statute which governs when and how a patient may be (1) refused
treatment or (2) transferred from one hospital to another when he is in an
unstable medical condition.
EMTALA was passed as part of the
Comprehensive Omnibus Budget Reconciliation Act of 1986, and it is sometimes
referred to as "the COBRA law". In fact, a number of different laws
come under that general name. Another very familiar provision, also referred to
under the COBRA name, is the statute governing continuation of medical
insurance benefits after termination of employment.
EMTALA is also known as Section
1867(a) of the Social Security Act. It is included as part of the section of
the U.S. Code which governs Medicare.
EMTALA applies only to
"participating hospitals" -- i.e., to hospitals which have entered
into "provider agreements" under which they will accept payment from
the Department of Health and Human Services, Centers for Medicare and Medicaid
Services (CMS) under the Medicare program for services provided to
beneficiaries of that program. In practical terms, this means that it applies
to virtually all hospitals in the U.S., with the exception of the Shriners'
Hospital for Crippled Children and many military hospitals. Its provisions
apply to all patients, and not just to Medicare patients. (See Section 15
below.)
EMTALA is codified at 42 USC 1395dd
et seq. The regulations enacted under it are found primarily at 42 CFR 489.24
et seq. These regulations were finally published in June 1994, some
eight years after CMS was directed
to promulgate the regulations in the original COBRA statute. As noted below,
some of the regulations did not become finally effective until September 1995,
due to requirements imposed under the Paperwork Reduction Act.
-----------------------------------
2. What is the purpose of EMTALA?
The avowed purpose of the statute is
to prevent hospitals from rejecting patients, refusing to treat them, or
transferring them to "charity hospitals" or "county
hospitals" because they are unable to pay or are covered under the
Medicare or Medicaid programs. This purpose, however, does not limit the
coverage of its provisions -- see Sections 15 and 16 below.
EMTALA is primarily but not
exclusively a non-discrimination statute. One would cover most of its purpose
and effect by characterizing it as providing that no patient who presents with
an emergency medical condition and who is unable to pay may be treated
differently than patients who are covered by health insurance. That is not the
entire scope of EMTALA, however; it imposes affirmative obligations which go
beyond non-discrimination. See Section 16 below.
-----------------------------------
3. Who is covered?
Most of the provisions of EMTALA
apply by their terms to hospitals only. There are numerous court cases which
have held that its principal provisions do not give rise to a claim against a
physician. There are some situations in which physicians may be subject to
liability, as noted below.
Hospitals, of course, are not
persons. A hospital is an institution which can operate only through the people
who work within its walls. A hospital is typically a corporation, and a
corporation is a legally-recognized entity which can be sued and which can have
its Medicare provider agreement revoked by CMS. In truth, then, the
requirements of EMTALA are imposed on the people who work within and on behalf
of the hospital, but the hospital is the entity which must bear the loss if it
is found that they have violated the statute. A hospital may seek to assert a
claim for reimbursement (indemnity or contribution) in the event that a decision
by one of its employees or staff physicians makes a decision for which it
becomes legally liable; these claims have been recognized by some courts.
The person who will usually have to
make the sometimes difficult decisions which are governed by EMTALA is the
emergency physician.
There are a few provisions which do,
by their terms, apply to physicians:
The penalty imposed on physicians
adds exclusion from the Medicare program in repeated cases or in a "gross
and flagrant" violation.
-----------------------------------
4. What are the provisions of
EMTALA?
The essential provisions of the
statute are as follows:
Any patient who "comes to the
emergency department" requesting "examination or treatment for a
medical condition" must be provided with "an appropriate medical
screening examination" to determine if he is suffering from an
"emergency medical condition". If he is, then the hospital is
obligated to either provide him with treatment until he is stable or to
transfer him to another hospital in conformance with the statute's directives.
What constitutes "coming to the emergency
department"? See our special note on
the 250 yard rule.
If the patient does not have an "emergency
medical condition", the statute imposes no further obligation on the
hospital.
A pregnant woman who presents in
active labor must, for all practical purposes, be admitted and treated until
delivery is completed, unless a transfer under the statute is appropriate. The
statute explicitly provides that this must include delivery of the placenta.
In essence, then, the statute:
Additional regulatory provisions
The regulation [42 CFR 489.24(a)]
adds the following:
The person who does the examination
must be specifically determined to be a "qualified medical person" by
the hospital bylaws. The hospital must make the designation in its bylaws or
rules and regulations. The regulation also provides that the person must
"meet the requirements of 42 CFR 482.55", although that rule really
has no substantive requirements.
Another section [42 CFR
489.20(q)(1)] requires that the hospital post a conspicuous sign which notifies
patients and visitors of the right to be examined and to receive treatment. The
sign must be in a form approved by the Secretary of Health and Human Services.
The May 2002 proposed regulations
(not yet in effect) would permit an abbreviated assessment for patients not
presenting for examination or treatment, whose presentation is not likely to
involve an emergency medical condition.
-----------------------------------
5. What is an "emergency
medical condition"?
An attempt is made by the statute to
provide a definition, but as usually happens, the legal definition leaves much
to be desired. The determination is ultimately a medical one rather than a
legal one. That is not to say that it is sheltered from review. As is the case
with any medical decision, it must often be made quickly, with such information
as is available, and is subject to critical retrospective review by physicians
testifying as expert witnesses in the alien setting of the courtroom, in the
event of litigation.
The definition provided under the
statute is:
"A medical condition manifesting itself by acute
symptoms of sufficient severity (including severe pain) such that the absence
of immediate medical attention could reasonably be expected to result in --
placing the health of the individual (or, with respect to a pregnant woman, the
health of the woman or her unborn child) in serious jeopardy,
serious impairment to bodily
functions, or
serious dysfunction of any bodily organ or part, or
"With respect to a pregnant
woman who is having contractions --
that there is inadequate time to effect a safe transfer to another hospital
before delivery, or
that the transfer may pose a threat to the health or safety of the woman or her
unborn child."
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6. What are the provisions for
pregnant women in active labor?
Note that the determination of
whether a woman in labor falls under the definition of "emergency medical
condition" is determined by consideration of time factors -- whether there
is adequate time to effect a "safe transfer" to another hospital
before delivery. (If the woman is not in labor, that is, is not having
contractions, then she does not fall under the terms of the statute unless her
condition fits the general
definition of "emergency medical condition" under the first paragraph
for some other medical reason.)
Do all patients in active labor need
to be admitted? It is common for patients to present with "false
labor" or in the very early stages of true active labor, and certainly it
is not necessary to admit all such patients. EMTALA clearly requires an
examination ("medical screening examination") to determine the stage
of labor, in order to make the determination of whether the patient has reached
the level at which a safe transfer cannot be effectuated. If the patient is at
the stage at which a safe transfer could be arranged, she can be discharged
without a violation of EMTALA.
This can be one of the most
problematic areas of application of the language of EMTALA. Since a seemingly
safe and normal course of labor can suddenly take a turn for the worse, it can
often be very difficult to determine precisely where the line for "safe
transfer" is crossed. As with the application of the other key language of
the statute, the determination of where the line is located is ultimately a
medical decision.
-----------------------------------
7. What if an emergency medical
condition is not properly diagnosed at the transferring hospital?
If the patient is erroneously
diagnosed, and the physician mistakenly believes that he does not have an
"emergency medical condition", when in fact he does, several courts
have held that the statute does not apply to that case. Urban v. King,
834 F Supp 1328 (1993). There could, of course, be a claim for professional
negligence for failure to make a diagnosis under State malpractice law in this
situation.
The court in Jones v. Wake County
Hospital System, Inc., 786 F.Supp. 538 (E.D.N.C. 1991) stated that EMTALA
requires only that a medical screening procedure be established and that it be
followed in every case, without regard to ability to pay, and that EMTALA is
not violated even if the screening procedure is insufficient under state
malpractice law.
Some of the cases have suggested
otherwise, however. There was a brief mention in Deberry v. Sherman Hospital
Association, 741 F. Supp. 1302 (N.D. Ill.1990), to the effect that a
hospital could be found to be in violation of EMTALA for failure to diagnose an
emergency medical condition through an inadequate screening procedure. This
principle is at least implicitly recognized in other cases as well. See, for
example, Power v. Arlington Hospital, 42 F3d 851 (4th Cir 1994) (failure
to order CBC, leading to missed diagnosis of sepsis).
The most prominent case on this
point is Summers v. Baptist Medical Center of Arkadelphia, 69 F.3d 902
(8th Cir. 1995), rev on reh en banc 91 F.3d 1132 (1996). In that case,
an examination of a patient who had fallen from a tree stand while hunting was
allegedly incomplete because a chest x-ray had not been included when a set of
spinal x-rays was ordered. The physician did not believe that the patient had
any fractures, and discharged him home, with instructions. There was no
transfer to another facility involved. The patient presented at another
hospital two days later, and he was diagnosed with an acute comminuted
vertebral fracture, a sternal fracture, and bilateral hemopneumothoraces
secondary to untreated rib fractures.
The original decision of the
three-judge Court of Appeals was that the Complaint did state a claim on which
relief may be granted, and that the failure of a doctor to follow what he
admitted was a standard screening diagnostic protocol supported a claim for a
violation of EMTALA. When the case was decided on rehearing by the full Eighth
Circuit, sitting en banc, this decision was reversed and it was held that
providing a screening examination, even if it is negligent under state-created
malpractice law, is sufficient to provide full compliance with EMTALA, and that
only disparate treatment in the screening process would support a claim.
Further information on this case is found at the EMTALA.COM site,
http://www.emtala.com/summers.htm.
-----------------------------------
8. Can the hospital inquire about
the patient's ability to pay?
Yes, but timing is everything. The
statute does not prohibit an inquiry into availability of medical insurance; it
does provide that neither examination nor treatment may be delayed to make the
inquiry.
A pre-authorization requirement
imposed by a managed care organization or a health insurer may not be allowed
to prevent or delay the performance of a medical screening evaluation or the
instituion of necessary stabilizing treatment once it is determined that an
emergency medical condition exists. There is nothing which prohibits concurrent
contact with an MCO or an insurer, so long as that contact or the answer
received is not permitted to interfere with the course of evaluation and (if
there is an emergency medical condition) treatment. The requirements of EMTALA
are mandatory and are unaffected by payment considerations. A hospital may not
permit a denial of payment or uncertainty about payment to interfere with its
obligations under EMTALA. The issue of payment or authorization for payment
must not be allowed to influence the physician's decision as to (1) whether an
emergency medical condition exists or (2) the nature or timing of the treatment
needed. In February 1996, the Medical Services Administration changed its
policies to provide for payment to providers for EMTALA-mandated medical
screening examinations for patients receiving services through its MCOs. A
prohibition against pre-authorization in Medicare and Medicaid managed care
plans was then enacted into law by Congress in 1997 with the Balanced Budget
Act.
In 1998, CMS issued a Special
Advisory Bulletin -- reproduced at http://www.emtala.com/oblig.txt -- to underscore its position on this issue, in view of the fact that
this is one of the most common sources of noncompliance. Its recommendations should
be carefully reviewed. They offer some comments on common situations, including
dual staffing arrangements, when calls to the MCO or carrier should be made,
and how to respond when the patient inquires about payment issues.
-----------------------------------
9. When can a patient be transferred
to another facility?
Under EMTALA, unless the patient
requests transfer [see Section 13 below], this depends on whether the patient
has become stable -- i.e., whether his emergency medical condition has resolved.
See Sections 10 and 11 below.
A transfer to another facility
before the patient has become stable can only take place if it is an
"appropriate transfer" under the statute.
A transfer after the patient has
become stable is permitted and is not restricted by the statute in any way. The
statute's restrictions apply only to transfers before the patient has become
stable, either on his own or as a result of medical treatment. Of course, the
question of whether the patient has become stable is sure to generate factual
and medical issues when litigation ensues, so the prudent hospital is cautioned
to tread carefully here.
A transfer of a patient who is not
experiencing an "emergency medical condtion" is permitted and is not
restricted by the statute in any way. In other words, and speaking a bit
loosely, a patient may be freely transferred either before the emergency
condition arises or after it has been resolved, and may only be transferred
under a defined set of circumstances while the condition exists.
-----------------------------------
10. What is meant by
"stabilized"?
As is the case with the term
"emergency medical condition", the statute offers a definition, but
this determination is ultimately a matter of clinical judgment on the part of
the medical professional assessing the patient. By contrast, the definition for
a pregnant woman is clear and has little need for interpretation.
The definition is:
-----------------------------------
11. What is an appropriate transfer?
An "appropriate transfer"
(a transfer before stabilization which is legal under EMTALA) is one in which
all of the following occur:
The statute provides that, if a physician is not
physically present in the emergency room, the written certification in support
of transfer may be signed by a "qualified medical person" in
consultation with the physician, provided that the physician agrees with the
certification and subsequently countersigns it. [42 USC 1395dd(c)(1)(iii)]
Additional regulatory provisions
The regulations add a requirement
that the written certification contain an express summary of the risks and
benefits upon which it is based [42 CFR 489.24(d)(1)(ii)(C)] and that the
transferring hospital forward copies of test results which become available
after the transfer. [42 CFR 289.24(d)(1)(iii)]
The regulations also require that,
if a physician has violated the EMTALA provision requiring that he respond if
he is on call, the information conveyed by the transferring hospital to the
receiving hospital must include his name and address. [42 CFR
289.24(d)(1)(iii)]
-----------------------------------
12. What if the patient refuses
examination and/or treatment?
Section 1395dd(b)(2) provides that a
hospital has met the requirement of a medical screening if it
Additional regulatory provisions
The regulations additionally provide
that:
A court would undoubtedly conclude that the
requirement of a discussion of the risks and benefits "of the examination
and treatment", in both quoted sections above, includes a discussion of
the risks of refusing the examination and treatment.
-----------------------------------
13. What if the patient requests
transfer?
A patient may request a transfer to
another institution, and it appears from the wording of the statute that this
request takes the place of the physician's certification mentioned in section
11 above. The transfer must still be an "appropriate transfer",
however.
Additional regulatory provisions
The regulations require that the
reason for the patient's request must be charted. 489.24(d)(1)(ii)(A)
-----------------------------------
14. Does EMTALA apply only to E.R.
patients?
Despite the fact that most
presentations which are governed by EMTALA are emergency room visits, the Act's
provisions apply to any patient who presents to a hospital in an emergency
medical condition, regardless of where in the hospital he appears. McIntyre
v. Schick, 795 F. Supp. 777 (E.D.Va. 1992).
One court ruled to the contrary,
holding that it is necessary that the patient present to an emergency room in
order to state a claim under EMTALA. Johnson v. University of Chicago,
774 F. Supp. 510 (N.D. Ill. 1991)
The case of Roberts v. Galen of
Virginia, the Supreme Court's only pronouncement on EMTALA, 525 US 249 (1999),
involved a patient whose medical condition arose as an inpatient, thus
implicitly establishing that the courts will apply the rule in McIntyre
rather than that in Johnson. (Note that the May 2002 proposed
regulations, not yet in effect, would significantly change these rules.)
-----------------------------------
15. Does EMTALA apply only to people
without insurance?
No. Despite the fact that the
purpose of the statute is to prevent "patient dumping", several
Courts have held that there is no requirement that the patient in fact be
unable to pay his bills or that there be an economic motivation behind the
decision to transfer the patient. Cooper v. Gulf Breeze Hospital, 839 F.
Supp. 1538 (1993).
The statute expressly provides that
the Act's provisions apply to all patients "whether or not eligible for
Medicare benefits". [42 USC 1395dd(a)]
Some courts have held that there
must be disparate treatment of patients who cannot pay for treatment, for liability
to be imposed under EMTALA. Holcomb v. Monahan, 30 F.3d 116 (11th Cir.
1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037 (D.C.Cir.
1991) Others have held that that is not an essential requirement. Deberry v.
Sherman Hospital Association, 741 F. Supp. 1302 (N.D. Ill.1990).
-----------------------------------
16. What obligations are imposed on
receiving hospitals?
Most of the obligations under EMTALA
are imposed on the transferring hospital. There are a couple of significant
obligations imposed on the receiving hospital as well.
The statute and the regulations
provide that any participating hospital which (1) has "specialized
capabilities or facilities" such as burn units, shock-trauma units, or
neonatal intensive care units, or which (2) is a "regional referral
center" in a rural area, may not refuse to accept a patient in transfer,
if it has the capacity to treat the individual. [42 USC 1395dd(g); CFR
489.24(e)] An argument can be made that the receiving hospital will be obligated
to accept the transfer in most cases, since the fact that a physician will have
made a determination that the receiving hospital can provide needed treatment
not available at the transferring hospital suggests that it has more
specialized facilities. On the other hand, the fact that the statute provides
specific examples of "specialized capabilities or facilities" would
suggest that the obligation exists only where the specified services or
similarly-recognized specialty services are involved.
It is likely that the courts would
consider that the "specialized capabilities or facilities"
description would also apply to high-risk obstetrics units, cardiovascular
surgery facilities, psychiatric services, and others. It is also possible that
more commonly-available services such as intensive care units or medical
specialists would be included if the transferring hospital does not have them.
One court has held that the
receiving hospital has no obligation to conduct another medical screening
examination. Baber v. Hospital Corporation of America, 977 F.2d 872
(D.W.Va. 1992). Whether that decision will be accepted by other courts is
questionable.
Additional regulatory provisions -
the "snitch rule"
The regulations do include a
provision which imposes a very significant obligation on receiving hospitals.
The regulation, at 42 CFR 489.20(m), obligates a participating hospital
"to report to [CMS] or the State survey agency any time it has reason to
believe it may have received an individual who has been transferred in an unstable
emergency medical condition from another hospital in violation of the
requirements of Section 489.24(d)." Like the other "basic
commitments" that this section of the regulations imposes on participating
hospitals, this section is enforced by the prospect of termination of the
provider agreement and thus disqualification from receiving reimbursement for
services under the Medicare program. This regulation became effective on
September 29, 1995.
-----------------------------------
17. What obligations are imposed on
ambulance services?
The statute imposes no requirements
on ambulance services per se. The responsibilities of the ambulance service and
its employees are solely a matter of State-created law. See item 19 below, however,
for special information relating to hospital-owned ambulances.
-----------------------------------
18. What about the transferring
hospital's responsibility regarding ambulance services?
EMTALA places the responsibility on
the transferring hospital to ensure that the statute's requirements are met.
The statute requires that the patient be accompanied by "qualified
personnel and transportation equipment" [Section 1395dd(c)(2)(D)] In some
cases, this may be construed to mean that it must send its own personnel with
the patient.
There is already a case on the books
which found that it was necessary that a physician accompany a pregnant patient
on a transfer to a hospital 170 miles away. Burditt v. U.S. Department of
Health and Human Services, 934 F2d 1362 (5th Cir 1991). The court in that
case decided that sending an OB nurse with the patient during the transfer did
not comply with the "qualified personnel" requirement. The Court
noted that the nurse was capable of doing an emergency vaginal delivery but not
of doing an emergency C-section, although how a physician could in fact carry
out an emergency C-section in an ambulance was not explained by the Court.
-----------------------------------
19. What rules apply to patients who
are being transported to a hospital via ambulance?
EMTALA itself does not address the
question of whether a patient being transported via ambulance is considered to
have "presented" to the hospital. The regulations, however, provide
some definitive parameters. Under those regulations [42 CFR 489.24(b)], a
patient in transit is considered to have "come to the emergency
department" if
The regulations specify that a
patient in a non-hospital-owned ambulance in transit is not considered to have
"come to the emergency department" even if the ambulance is in
contact with the hospital by telephone or by radio telemetry. Further, the
regulations provide that the hospital may deny access to the patient in transit
if it is in "diversionary status" -- that is, if it does not have the
staff or facilities to accept additional patients.
The May 2002 proposed regulations
(not yet effective) would remove the obligation for hospital-owned ambulances
if they are "integrated" with EMS services. The net effect is
expected to be that these ambulances will now be free to transport patients to
a suitable hospital facility and will not be required to automatically
transport the patients to the hospitals which own them.
-----------------------------------
20. What penalties are imposed for
violations?
The essential provisions are:
A hospital which negligently
violates the statute may be subject to a civil money penalty (i.e., a fine, but
without criminal implications) of up to $50,000 per violation. If the hospital
has fewer than 100 beds, the maximum penalty is $25,000 per violation.
A physician who is responsible for
providing an examination or treatment, including but not limited to an on-call
physician, may be liable for a civil money penalty for signing the medical
certificate if he knew or should have known that the benefits of transfer did
not in fact outweigh the risks of transfer, or if he misrepresents the
patient's condition or the hospital's obligations under the statute.
A physician who is on call and who
fails or refuses to appear after being called by an E.R. physician (or other
physician) may be subject to a penalty under the statute, or may subject his
hospital to a penalty. The wording of this section [1395dd(d)(1)(C)] is so
garbled as to be virtually indecipherable.
Additional regulatory provisions
The regulations also provide that a
hospital found to be in violation may have its provider agreement revoked.
This, of course, is likely to be a much more significant potential sanction,
and this "Medicare death penalty" provides the biggest incentive to
hospitals to accept the positions adopted by CMS in its enforcement activities.
-----------------------------------
21. Does civil liability attach for
claims under EMTALA?
Yes. The following provisions apply:
A hospital may be held liable to an
injured person in a civil action for damages under the statute, with no maximum
on the liability. Unlike a number of other Federal statutes enabling a civil
remedy, there is no provision for an award of attorneys' fees to a successful
plaintiff.
A hospital may also be held liable
to another hospital in a civil action for any financial loss suffered by the second
hospital, to the extent available under State law.
Precisely what that means is
uncertain. It is not clear what, if any, remedies were available under common
law to a hospital which received a patient in transfer from another facility.
Presumably, the receiving hospital could recoup from the transferring hospital
any expenses and liabilities which were not reimbursed by Medicaid, Medicare,
or third-party medical insurance. Depending on State law and/or the applicable
contractual language, a third-party payor, such as a medical insurer, may
become subrogated to the claim, meaning that it would be entitled to recover
from the transferring hospital the amounts that it paid on behalf of the
patient. It would not require much of a stretch for a court to conclude further
that the statute would entitle CMS to recover the benefits paid under Medicare
or a State to recover benefits paid under Medicaid if a violation is found,
even if there is no specific provision for such a recovery elsewhere in the
Medicare statute.
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22. How does this statute affect
malpractice claims?
As noted above, claims for medical
malpractice arise under State law, and vary from State to State. EMTALA does
not take the place of or limit any malpractice claim under State law. Instead,
it offers another way for a plaintiff to make a claim for damages, another
avenue in addition to claims under State law, and a way to get his claim heard
in Federal court if he wishes to do so. It may also avoid the effect of
limitations on damages or other substantive or procedural barriers under State
law. The courts have had varying rulings on whether procedural aspects of a
State's tort law (caps on damages, presuit notice, etc.) will apply to claims
under EMTALA.
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23. Doesn't EMTALA simply restate in
a different way the general obligation to provide appropriate treatment when it
is needed?
No. To some extent, of course, the
obligations of EMTALA and of a State's substantive tort law are coextensive.
EMTALA does impose an affirmative obligation to conduct an assessment and to
provide treatment, even when State law may not have so required.
It would be overly simplistic to
assume that compliance with the standard of care will automatically entail
compliance with EMTALA. The statute imposes certain limits on a transfer and
certain requirements as to treatment, which go beyond the ordinary standard of
care requirements.
One Court has held that the
obligations under EMTALA are absolute, and that the patient must be treated
even when that treatment would not be necessary under State law and even when
treatment, in fact, may be ethically inappropriate and/or a violation of the
standard of care. In re Baby K, 16 F.3d 590 (4th Cir 1994), the Court found
that EMTALA imposed an obligation to intubate an infant and to provide
mechanical ventilation, in the case of an anencephalic infant who had no hope
for conscious awareness or for any form of what most people would think of as
human existence. Even though all parties agreed and the Court found that, under
the common law of the Commonwealth of Virginia, under generally-accepted
principles of medical ethics, and under the standard of care, intervention
could and should be withheld, the Court ruled that EMTALA imposes an
affirmative (and ongoing) obligation on the hospital to provide such
intervention and care to the infant.
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24. What other resources are
available on this subject?
The American College of Emergency
Physicians puts out a newsletter, published quarterly, called Patient Transfer
News. Its stated purpose is to "provide accurate information with regard
to patient transfers". Subscriptions are $89 per year for members of ACEP,
and $107 for non-members. Contact ACEP Sales and Services, P.O. Box 619911,
Dallas, Texas 75261-9911; (800) 798-1822.
ACEP has published a book entitled
"Patient Transfers: How to Comply with the Law". The author is
Stephen A. Frew, J.D. The book is available for $54.00 from ACEP at the number
provided above.
Dr. Robert Bitterman has written
"Providing Emergency Care Under Federal Law: EMTALA", also offered
through ACEP.
In addition, there are a number of
law review articles which have been written on EMTALA and the issues it raises.
Several have been listed at this site.
1. What are the requirements of
EMTALA for ER staffing and call lists?
A quick and roughly accurate answer
is that there are no official requirements imposed by EMTALA. Rather, the
affirmative obligation to maintain a call schedule is imposed on hospitals by
another section of the Medicare statute, although it refers back to the EMTALA
obligations. The language of 42 USC §1395cc(a)(1)(I) is:
[In order to be eligible, a facility must file an agreement] (I) in the case of a hospital or critical access hospital - (iii) to maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition.
Physicians are often told by hospitals that they are "required by
EMTALA" to serve on a call schedule. The truth is that EMTALA does not
impose any requirement on physicians that they serve on a call schedule. It is
the hospital which imposes an obligation on physicians in order to meet the
obligation imposed upon it by the Medicare statute. The obligation of a
physician to serve on a call schedule is legally based on state law governing
contracts, derived from the agreements attendant to medical staff membership,
rather than an obligation placed on the physician by Federal law.
As noted above, Section 1395dd(d)(1)(C) imposes a penalty on a physician
who fails to respond to an emergency situation when he is assigned as the on-call
physician. This is the only obligation placed on physicians governing the
obligation to respond to an emergency situation. This provision does not
require that a particular physician or particular specialty provide coverage on
a call basis.
With a couple of exceptions, the statute and regulations impose all of
their obligations on hospitals. This area is no exception. The expectations of
CMS and of the courts in construing EMTALA are directed at hospitals. Hospitals
are left to their own devices as to how to ensure compliance by members of
their medical staffs.
1.
How are hospitals expected to structure the coverage requirement?
The Interpretive Guidelines document (PDF format) includes a general statement to the effect that any
specialty service that a hospital offers should be available through on-call
physicians covering that service. But that general statement is overly broad.
It does nothing to distinguish between specialists -- who really cares if a
dermatologist is not immediately available to see a patient? -- and to address
the particular needs of small rural hospitals and other facilities where the
number of available specialists is limited.
CMS has reportedly used an undocumented informal 3-physician "rule
of thumb" which requires a hospital to ensure that it has 24 hour on-call
coverage for any specialty for which it has three or more physicians.
Presumably, this means three physicians on its active staff in that specialty,
but such lack of clarity is inherent with unwritten rules. Under this rule, a
hospital which has only one or two specialists in a given area could have less
than full coverage for that specialty without being considered to be in
violation of EMTALA requirements.