Overview of Issue
The Emergency Medical Treatment and Active Labor Act (EMTALA), also known as the “Patient Anti-Dumping” statute, is a Federal statute intended to prevent Medicare-participating hospitals with dedicated emergency departments from refusing to treat people based on their insurance status or ability to pay. The core objective of EMTALA is to protect patients seeking emergency care who might otherwise go untreated and be left without a remedy. Although EMTALA’s focus is upon preventing disparate treatment of patients who cannot pay for treatment, EMTALA applies to all patients whether or not eligible for Medicare benefits. (42 U.S.C. § 1395dd(a)). The specific requirements of the statute are detailed in regulations that have been the subject of frequent regulatory action and court decisions.
EMTALA was enacted in 1986 under Section 1867 of the Social Security Act. (42 U.S.C. § 1395dd). EMTALA was passed as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (Pub. L. 99-272). Congress enacted EMTALA in response to wide spread concerns that hospitals were denying emergency care to indigent and uninsured patients, and shunting them (“dumping”) to another facility for care, or to no facility at all, by discharging the patient after a cursory inadequate medical examination.
Section 1867 of the Social Security Act (42 U.S.C § 1395dd) sets forth the requirements for Medicare-participating hospitals that have emergency departments. The majority of hospitals in the United States accept Medicare funding, and thus are participating hospitals covered under EMTALA.
The EMTALA statute and the regulations (42 C.F.R. § 489) consist of three primary obligations regarding the treatment of any individual who comes to a participating hospital for emergency medical care:
First, any individual who comes to the emergency department must be provided “an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (EMC) exists.” (42 C.F.R 489.24(a)(1)(i)). In addition, the medical screening examination “must be conducted by an individual(s) who is determined qualified by hospital bylaws or rules and regulations . . . .” (42 C.F.R. § 489.24(a)(1)(i)). EMTALA defines an emergency medical condition as “[a] medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in – (i) [p]lacing the health of the individual . . . in serious jeopardy; (ii) [s]erious impairment to bodily functions; or (iii) [s]erious dysfunction of any bodily organ part[.]” (42 C.F.R. § 489.24(b)). EMTALA also defines an emergency medical condition to include a pregnant woman who is having contractions. Examination and treatment cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments must also post signs notifying patients and visitors of their right to a medical screening examination and treatment for emergency medical conditions.
Second, if it is determined that an EMC exists, the hospital must provide treatment to stabilize the medical condition, or appropriately transfer the individual to another hospital. If the hospital admits the individual as an inpatient for further treatment, the hospital’s EMTALA obligation ends. Once an individual is admitted as an inpatient, state tort and medical malpractice law then govern the legal adequacy of that care. EMTALA is not a federal malpractice statute, and is not meant to supplant available state malpractice and tort remedies.
Third, the hospital must abide by restrictions on transferring unstable individuals. Patients may be transferred under EMTALA solely for medical necessity. Under EMTALA, a hospital can transfer an unstable patient only if the transfer is an “appropriate transfer” under the statute. An “appropriate transfer” involves numerous factors, including determining that the medical benefits of transfer outweigh the medical risks of transfer. The weighing of the risks and benefits of transfer must be certified in writing by a physician. A hospital must report to The Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) or the State Survey Agency anytime it has reason to believe that it may have received an individual who has been transferred in an unstable emergency medical condition from another hospital in violation of EMTALA.
A Medicare-participating hospital with specialized capabilities or facilities (such as a burn unit or neonatal intensive care unit) that exceed those of the transferring hospital shall not refuse to accept an appropriate transfer of a patient who requires such specialized capabilities if the hospital has the capacity to treat the patient. However, once an individual is admitted, in good faith, by the admitting hospital, a hospital with specialized capabilities does not have an EMTALA obligation to accept an inpatient transfer of that individual. (73 Fed. Reg. 48,434, 48,659 (Aug. 19, 2008)).
EMTALA enforcement is complaint driven, meaning the investigation is initiated by a complaint received by CMS or the State Survey Agency. Both CMS and the Office of the Inspector General of the Department of Health and Human Services (OIG) have administrative enforcement powers with regard to EMTALA violations. Penalties may include termination of the hospital or physician’s Medicare Provider Agreement, civil monetary penalties imposed on hospitals or physicians, and civil actions for personal injury against participating hospitals. Additionally, if a receiving hospital suffers financial loss because of another hospital’s violation of EMTALA, the receiving hospital can sue to recover damages. Termination of Medicare is the most drastic penalty; however, the significance of this sanction is a motivating factor for hospitals to adhere to the guidelines adopted by CMS to enforce EMTALA. The EMTALA statute provides a two-year Statute of Limitations for bringing any of these enforcement actions. EMTALA also offers whistleblower protections for hospital personnel who take action to prevent or report EMTALA violations.
Interpretative Guidelines on how to apply and enforce the EMTALA statute and regulations are found in Appendix V of the CMS State Operations Manual. Additionally, CMS Survey and Certification Letters addressed to the State Survey Agency Directors who perform surveys and inspections on behalf of CMS are instructive as they relate to hospitals’ obligations to comply with EMTALA. For example, in S&C Letter No. 07-20 (posted 04/27/07), CMS clarified that it is a violation of the EMTALA requirements for a receiving hospital to condition its acceptance of an appropriate transfer upon the transferring hospital’s use of a particular transport service to accomplish the transfer (http://www.cms.hhs.gov/SurveyCertification GenInfo/downloads/SCLetter07-20.pdf).
Pursuant to Section 945 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Public Law 108-173) the Secretary established a Technical Advisory Group (TAG) to advise on issues related to the regulations and implementation of EMTALA. The TAG’s 19-member committee met on several occasions, established three sub-committees, and submitted 55 recommendations to the Secretary, five of which have already been implemented by CMS. (A complete list of TAG recommendations is available in the TAG’s final report available at http://www.magpub.com/emtala/EMTALA%20Final% 20Report_FINAL.PDF).
There is likely to be additional EMTALA requirements for hospitals and physicians, which will increase investigations and enforcement action. Many health care providers believe that there needs to be clarification regarding screening and treatment for behavioral health issues in an emergency department setting.
Common Areas of Concern
The following issues and practices with respect to the treatment and flow of patients through emergency departments have been the subject of regulatory action and court interpretation, and still raise concerns about EMTALA compliance.
EMTALA obligations are triggered when an individual “comes to the emergency department,” according to 42 C.F.R. § 489.24(b). Until recently, the common belief was that a person had to physically arrive on hospital grounds before EMTALA obligations were triggered. In S&C Letter No. 07-20 (posted 04/27/07), CMS further clarified that the EMTALA responsibility of a hospital with a dedicated emergency department begins when an individual arrives on hospital property, not when the hospital “accepts” the individual from the gurney. (http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter07-20.pdf). In 2008, however, the First Circuit interpreted what it means to “come to” a hospital’s emergency department more expansively. In Morales v. Sociedad, 524 F.3d 54 (1st. Cir. 2008), the court determined that an individual can “come to” the emergency department without physically arriving on the hospital’s grounds as long as the individual is en route to the hospital and the emergency department has been notified of the individual’s imminent arrival. This holding, although only binding on the First Circuit, is at odds with CMS regulations. It is not yet clear if CMS will adopt an administrative enforcement position consistent with the Morales decision.
In order to satisfy its requirements under EMTALA, hospitals must maintain a list of physicians who are on-call. Hospitals must have policies to address the unavailability of certain specialists and physicians. An on-call physician must respond within a reasonable amount of time that is to be specified in minutes by hospital bylaws, policies, and procedures. In 2007, CMS addressed the issue of whether an on-call physician was obligated to physically appear in the emergency department, or whether telephone or telehealth technology could satisfy the on-call physician’s obligation. (S&C Letter No. 07-23 (posted 06/22/07 available at http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter07-23.pdf).
CMS stated that there is no EMTALA prohibition against the treating physician consulting with another physician by telephone, video conferencing, or any other means of communication. It is only when the treating physician requests an in-person appearance by the on-call physician that a failure by the latter to appear in person may constitute an EMTALA violation. Also, in September 2003, The Department of Health and Human Services (HHS), clarified that on-call physicians may have simultaneous on-call duties and schedule elective surgery during the time that they are on-call. (68 Fed. Reg. 53,264 (Sept. 9, 2003)).
In its most recent revision to the federal regulations, HHS agreed to allow hospitals to satisfy their on-call coverage obligations by organizing an approved community call/regional call program. (73 Fed. Reg. 48,434, 48,662 (Aug. 19, 2008)). The community call plans are not subject to local, state or federal pre-approval; however, CMS has identified certain elements that must be part of a formal community call plan, if one is adopted. (42 C.F.R. § 489.24(j)(2)(iii)). Some hospitals are concerned that community call plans that are established to provide on-call physicians to a group of geographically located emergency departments will raise anti-trust concerns. HHS has directed all such inquiries to the U.S. Department of Justice Anti-Trust Division for further review under the business review process. Similarly, HHS refers any HIPAA related concerns involving emergency departments’ discussion of patients in connection with a community call plan, to the Office of Civil Rights, which is charged with technical guidance and enforcement of the HIPAA Privacy Rule.
Another significant area of concern for hospitals is the amount of uncompensated care that they are required to provide. A majority of emergency medical care goes uncompensated under EMTALA. In order to address the amount of uncompensated emergency care given, hospitals are faced with difficult decisions concerning cost shifting to paying patients and/or reduction or closure of services.
EMTALA was enacted to prevent “patient dumping” of indigent patients. In the last two decades, a comprehensive statutory and regulatory framework has been created to protect those who cannot afford medical services by making sure they receive optimal care before being transferred or discharged. The statute contains significant penalties to prevent hospitals and physicians from disregarding their duties in treating all patients in a similar manner regardless of ability to pay.