What is EMTALA?

EMTALA is a federal law enacted in 1986.¹ Congress passed EMTALA, also known as the Patient Anti-Dumping Statute, to stop hospital EDs from refusing to treat poor or uninsured patients or from transferring patients to other facilities before their medical conditions are stabilized for transfer. EMTALA is intended to ensure that all people have equal access to emergency treatment regardless of their ability to pay. The law applies to hospitals that participate in Medicare (most do) and to all patients who seek emergency treatment at such hospitals, regardless of their insurance status.  

Some states have their own EMTALA-like statutes. In such cases, EMTALA preempts the state law if a state requirement conflicts with an EMTALA requirement.

Nurses working in clinical areas in which EMTALA applies need to be aware of its fundamental requirements to provide patients with the care they are entitled to under law. Nurse managers in such areas need to ensure that their staff members are properly educated about EMTALA and that policies are in place to address EMTALA. Nurses responsible for regulatory compliance matters should be aware of the laws, regulations, and other resources governing EMTALA to ensure ongoing compliance — and to be able to respond to an EMTALA violation.

Who’s responsible for enforcement?

The Centers for Medicare and Medicaid Services is primarily responsible for enforcing EMTALA. State survey agencies, typically state departments of health, receive and investigate EMTALA complaints, but the CMS retains the authority for determining whether a violation has occurred and initiating termination of a hospital’s Medicare provider agreement.

Also important in enforcement is the Office of the Inspector General of the Department of Health and Human Services . The OIG has the authority to impose fines for EMTALA violations.

EMTALA and its role in the healthcare system continue to be fine-tuned. In 2005, for instance, the OIG reiterated the need for hospitals to address EMTALA as part of their compliance programs.³ In October 2006, the CMS made changes to EMTALA, including permitting certified nurse-midwives and certain other nonphysician healthcare professionals to certify that a woman is in false labor. At that time, the CMA also clarified that all Medicare-participating hospitals, including specialty hospitals, must accept appropriate transfers of unstable individuals, regardless of whether such hospitals have an ED.⁴

In 2006 and 2007, the CMS issued guidance on the following EMTALA-related topics: “parking” of EMS patients in hospitals (i.e., hospitals preventing EMS personnel from transferring a patient from an ambulance or a stretcher to a hospital gurney or bed)⁵; provision of emergency services and compliance with Medicare conditions of participation for hospitals⁶; and EMTALA issues related to emergency transport services.⁷

Does EMTALA apply only to EDs?

EMTALA applies to hospitals with a dedicated emergency department. A DED is defined as a department or facility of a hospital located on the main hospital campus or off campus that meets at least one of the following requirements:⁸

• It is licensed by the state as an emergency room or department.
• It is held out to the public — by name, 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, for example, urgent care or fast-track centers.
• Based on a representative sample of patient visits in the previous calendar year, it provides at least one-third of all its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. (L&D units and psychiatric units often meet the definition of a DED on this basis.)

For hospitals subject to it, EMTALA’s reach applies not only to patients who come to the DED but also to patients seeking emergency treatment who are on “hospital property.” Hospital property is defined as the entire main hospital campus, including parking lots, sidewalks, and driveways but excluding other areas or structures of the hospital’s main building that are not part of the hospital, such as physician offices, rural health centers, skilled nursing facilities, or other entities that participate separately under Medicare. Hospital property does not include restaurants, shops, or other nonmedical facilities. Nonetheless, hospitals should have procedures in place for handling emergencies that occur in areas that EMTALA does not cover.

EMTALA applies to ambulances, but exceptions exist. It does not apply to hospital-owned air or ground ambulances operated under one of the following conditions:⁸

• Under communitywide emergency medical service protocols that direct the ambulance to transport the person to a hospital other than the hospital that owns the ambulance
• At the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance

Even if a hospital is on diversionary status, if a person is transported by ambulance or otherwise shows up in a DED or on hospital property seeking treatment for what could be in emergency condition, a medical screening exam (MSE) must be provided.

What are a hospital’s obligations?

A hospital’s fundamental EMTALA obligations include the following:⁸

• Patients presenting to a DED requesting medical treatment must receive an MSE.

The purpose of an MSE is to determine whether the patient has an emergency medical condition. An EMC is a condition in which the absence of immediate medical attention would likely lead to a serious threat to life or limb. The MSE is an ongoing process that may range from the simple (e.g., a brief history and physical exam) to the complex (e.g., blood work and CT scan). The MSE should be the same exam that would be provided to any patient with the same presenting signs and symptoms regardless of his or her ability to pay for care. Triage is not equivalent to an MSE.

If a person comes to a hospital’s DED and a request is made on his or her behalf for an examination or treatment for a nonemergency medical condition, the hospital must perform only such screening as would be appropriate for any person presenting in that manner to determine that the person does not have an EMC.

• Patients presenting on hospital property requesting emergency medical treatment must receive an MSE.

EMTALA takes into account that people seeking emergency treatment may try to reach a DED, but for various reasons may present for such treatment somewhere else on hospital property. If a person presents on hospital property and requests treatment for what may be an EMC, an MSE must be provided. A person will be deemed to have made such a request if a prudent layperson observer — a person who is not medically trained — would believe, based on the person’s appearance or behavior, that he or she needs an emergency examination or treatment.

In a separate but related matter, in an April 2007 memo, CMS pointed out that all Medicare-participating hospitals are required to appraise medical emergencies and to provide initial treatment and referral (when appropriate), regardless of whether the hospital has a DED.⁶ This is a requirement under the Medicare conditions of participation for hospitals,⁹ which are independent of the EMTALA regulations. CMS also discusses the propriety of hospitals’ use of 911 services to handle emergencies.

• The MSE cannot be delayed to inquire about insurance.

A hospital may develop reasonable registration practices, but the OIG and the CMS have made it clear that a hospital should not seek prior authorization from managed care plans until after the hospital has provided an MSE and any medical treatment required to stabilize an EMC.¹⁰ Typically, federal and state laws governing managed care plans prohibit the plans from requiring that members obtain preapproval for emergency care. Also, managed care organizations and participating hospitals often negotiate tiered rates for ED services such that, consistent with EMTALA, prior authorization is not required for such services.

• The presence or absence of an EMC determines the hospital’s continuing obligations under EMTALA.

Whether an EMC exists is the responsibility of the “qualified medical personnel” of the hospital to determine. The hospital’s governing board determines which providers (physicians, physician assistants, nurses, etc.) are qualified to perform MSEs.

In the past, who was a qualified medical person for the purposes of determining false labor was an issue of concern for hospitals. Until October 2006, only a physician could certify that a woman was in false labor. As a result of the 2006 changes to EMTALA, certified nurse-midwives and certain other nonphysician healthcare providers may now certify that a woman is in false labor. This provides hospitals with great flexibility in regard to what types of healthcare professionals they can use as qualified medical personnel for assessing women in labor.

If no EMC exists, then the hospital has fulfilled its obligations under EMTALA. If an EMC does exist, the hospital has two options: stabilize the patient (treat and discharge or treat and admit) or appropriately transfer the patient. A hospital’s EMTALA obligations end once a person is admitted in good faith for inpatient care.

• A patient with an EMC who has not been stabilized must be “appropriately transferred.”

When a patient’s EMC cannot be stabilized at the facility (for example, a patient has major head trauma, and the facility does not offer neurosurgical services), the patient may be transferred if the patient requests it, the examining physician certifies that the medical benefits of the transfer outweigh the risks, and the transfer is appropriate. An “appropriate” transfer means that —

• The sending hospital provides treatment to minimize the risks to the patient.
• The receiving hospital has agreed to accept the transfer and has space and personnel available.
• The medical record is forwarded to the receiving hospital.
• The sending hospital ensures that transfer is effected through qualified personnel and an appropriate transportation method.

With regard to an “appropriate transportation method,” CMS has made it clear that a receiving hospital must accept an appropriate transfer even if the sending hospital refuses to use the transport service designated by the receiving hospital, such as an air medical service owned by the receiving hospital.⁷ Receiving hospitals that condition acceptance of an appropriate transfer on the use of a particular transport service will be cited for violating EMTALA.

As one would expect, the medical record must show compliance with the above criteria.

If a physician is not physically present in the ED at the time a patient is being transferred, the qualified medical person who performed the MSE can complete and sign the certification after consultation with a physician who is not present in the ED but who agrees that transfer is indicated. Thereafter, the physician must cosign the order.

A hospital participating in Medicare must accept a transfer of a patient with an EMC if the hospital has specialized capabilities and the capacity to treat the person. A recipient facility has specialized capabilities if —

1. It offers services that are not available at the sending facility (for example, burn units or other specialized units) or
2. The transfer is between comparable facilities, but the receiving facility would offer enhanced care benefits to the patient (for example, when the sending facility does not have the equipment to perform a procedure, or the sending facility’s equipment has malfunctioned).

“Capacity” refers to the recipient hospital’s ability to accommodate the needs of the patient who is requesting transfer and includes an assessment of the number and types of beds available, the number of staff on duty, and the equipment available. Hospitals that offer specialty services, such as burn units and trauma centers, should have policies addressing the circumstances under which patients with EMCs will be accepted for transfer.

Of note, as part of the 2006 changes to EMTALA, all Medicare participating hospitals with specialized capabilities, including specialty hospitals, must accept appropriate transfers of unstable individuals regardless of whether the hospital operates a DED.¹¹

• EMTALA requires that a receiving hospital notify the CMS or the state survey agency of any inappropriate transfers, i.e., “dumping.”

Dumping includes the transfer of patients who arrive in an ED without prior notification from the sending facility. It also includes the transfer of patients who arrive in an ED in an unanticipated deteriorated condition or without appropriate documentation. A recipient hospital that suspects it received an improperly transferred patient must report the incident to the CMS or the state survey agency within 72 hours. Failure to report can result in termination of the recipient hospital’s Medicare provider agreement.

• Whistle-blower protections exist for physicians and other qualified medical personnel who refuse to authorize the transfer of patients with EMCs who have not been stabilized and for hospital employees who report violations of EMTALA.

Hospitals are prohibited from taking any action against physicians or other qualified medical personnel who refuse to authorize the transfer of patients with EMCs who have not been stabilized. Hospital employees who report violations of EMTALA are also protected.

An excellent resource for more comprehensive information about a hospital’s EMTALA obligations is Appendix V of the Medicare State Operations Manual http://cms.hhs.gov/manuals/downloads/som107ap_V_emerg.pdf. Appendix V is commonly called the Surveyor Interpretive Guidelines; surveyors use Appendix V when investigating an EMTALA violation.

Other key points for RNs

Nurses should also be familiar with the following aspects of EMTALA:¹²

• Signage: Hospitals must post signs in the DED and other conspicuous places explaining a person’s right to an MSE and indicating whether the hospital participates in Medicaid, a government health insurance program for low-income people.
• Record retention: A hospital must maintain medical and other records related to people transferred to and from the hospital for five years from the date of transfer.
• On-call lists: Hospitals must maintain a list of physicians on call to provide further evaluation and treatment necessary to stabilize a patient with an EMC. Hospitals and physicians have been critical of the lack of concrete guidance from the CMS on this requirement, and it remains an unsettled issue for most EDs.
• Logs: Hospitals must maintain a central log of people who come to the DED seeking treatment and indicate their disposition (i.e., refused treatment, admitted, discharged).
• The EMTALA Technical Advisory Group (“EMTALA TAG”): this advisory group is responsible for reviewing EMTALA regulations and may provide recommendations to the secretary of the Department of Health and Human Services about them. The advisory group also solicits comments and recommendations from hospitals, physicians, nurses, and the public on the implementation of EMTALA and can disseminate information about the regulations to hospitals, physicians, and the public. The EMTALA TAG has been influential since its inaugural meeting in March 2005, resulting in regulatory changes as well as more frequent guidance letters from CMS on aspects of EMTALA compliance. The advisory group’s meeting reports are available on its home page, www.cms.hhs.gov/faca/07EMTALAtag.asp.

EMTALA violations

If the CMS determines that a violation has occurred, it immediately starts the process to terminate the hospital’s Medicare provider agreement. If patient health and safety are in immediate jeopardy, termination is to be completed within 23 days. If the violation is not considered to result in immediate jeopardy, the termination schedule is 90 days.

Termination of the Medicare provider agreement is the remedy hospitals fear most. The remedy that is less feared (but more likely to occur) is imposition of a fine (called a civil monetary penalty or CMP). Hospitals and physicians can be fined up to $50,000 per violation. Physicians who violate EMTALA can be excluded from the Medicare program.

In terms of lawsuits, EMTALA provides that an individual who suffers personal harm as a direct result of a hospital’s violation of EMTALA may institute a civil action against the hospital to recover damages. However, a lawsuit under EMTALA is not the same as a lawsuit for malpractice.

If a patient seen in an ED is erroneously diagnosed, most courts have held that EMTALA does not apply. As long as the hospital provided an MSE of the type that it would provide to all patients who presented with the same symptoms, regardless of their insurance status, the hospital’s EMTALA obligations have been met. This is so even if the MSE did not meet the standard of care or the provider failed to correctly diagnose the patient’s condition. In such cases, patients can sue the hospital and the qualified medical person who conducted the MSE in state court for malpractice.

So what should Joe Smith have done to avoid an EMTALA violation? Instead of sending away a person seeking emergency treatment (Maria) who was on hospital property (the ED driveway), he should have taken Maria directly into the ED for an MSE. If the MSE revealed that Maria had an EMC (active labor), the hospital would have been obligated to stabilize her (deliver her baby) or appropriately transfer her to a facility that had L&D services. 

*A composite case study.

EDITOR’S NOTE: This module is intended to provide accurate and substantive information about EMTALA. It is not a substitute for specific legal advice.