The University of New Mexico Office of University Counsel

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The University of New Mexico Office of
University Counsel

• Emergency Medical Treatment and Labor Act
  (EMTALA)
• July 27, 2006
• Vicki J. Hunt, JD, MPH
• Associate University Counsel

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Emergency Medical Treatment and Labor Act
(EMTALA)

• Applies to Medicare participating hospitals with
  emergency departments
• Purpose to prevent hospitals from rejecting,
  refusing to treat, or transferring individuals to
  other hospitals based on lack of ability to pay
  or insurance status (i.e. Medicare or Medicaid)
• Regulates when and how individual may be
• (1) refused treatment, or (2) transferred from
  one hospital to another when they have emergency
  medical condition that is not stabilized

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When do Hospitals obligations under EMTALA
arise?

• Two prongs to trigger EMTALA
• Individual comes to the hospitals emergency
  department (ED) and
• Requests examination or treatment for a medical
  condition

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What are Hospitals obligations under EMTALA?

• Two duties arise if EMTALA is triggered
• Duty of hospital to provide appropriate medical
  screening examination (MSE) within capability
  of hospitals ED and
• If patient determined to have emergency medical
  condition (EMC), duty to provide necessary
  stabilizing treatment or provide appropriate
  transfer to another hospital

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Important Definitions

• Comes to Hospitals ED means when individual
  presents to hospitals dedicated emergency
  department (DED) or elsewhere on hospital
  property (i.e. driveway, parking lot, sidewalks,
  or other departments or facilities that are part
  of the hospital, or are within 250 yards of
  hospitals main buildings, except for non-medical
  businesses or medical entities with separate
  Medicare identity)

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More Definitions

• Comes to Hospitals ED (contd)
• Individual has come to hospitals ED if
• in hospital owned/operated ambulance on or off
  hospital property
• in non-hospital owned/operated ambulance on
  hospital property
• in non-hospital owned/operated ambulance that
  arrives on hospital property after hospital in
  diversionary status denies access

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More Definitions

• Comes to Hospitals ED (contd)
• Individual has not come to hospitals ED if
• in hospital owned/operated ambulance directed
  to another hospital by communitywide EMS protocol
• in non-hospital owned/operated ambulance not on
  hospital property, even if en route calls made to
  hospital (until arrives on hospital property)

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More Definitions

• Dedicated Emergency Department (DED) means any
  department or facility of hospital that
• (1) is licensed by State as ED
• (2) held out to public as providing treatment
  
• for emergency medical conditions or
• (3) 1/3 of visits in preceding calendar year
• for treatment of emergency conditions
  on
• urgent basis without scheduled
• appointment.

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More Definitions

• Request for examination or treatment of medical
  condition means a request made by the individual
  or on individuals behalf or, in absence of a
  request, one will be considered to exist if
  prudent layperson observer would believe, based
  on individuals appearance or behavior, that
  individual needs examination or treatment for
  medical condition
• Note Medical condition does not need to be
  emergency medical condition hospital obligated
  to conduct appropriate MSE to determine if EMC
  exists and, if so, to provide further examination
  and treatment of EMC

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More Definitions

• Appropriate Medical Screening Examination (MSE)
  means examination of patient within capability
  of hospitals ED, including ancillary services
  routinely available to the ED, by physician or
  other qualified medical person (as set forth in
  hospitals bylaws, rules or regulations) to
  determine if patient has EMC.

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More Definitions

• Capability to provide appropriate MSE means the
  ability of hospital personnel to provide level of
  care required (within training/scope of
  professional licenses) to conduct screening
  examination adequate to determine existence of
  EMC includes ancillary services routinely
  available to hospital (i.e. psychiatric services
  available to main hospital ED)

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More Definitions

• Emergency Medical Condition (EMC) means a
  medical condition manifested 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 health of individual (or of pregnant
  woman and unborn child) in serious jeopardy
• serious impairment to bodily functions or
• serious dysfunction of any bodily organ or part.

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More Definitions

• EMC of pregnant woman with contractions means
  there is inadequate time to effect safe transfer
  before delivery, or transfer may pose threat to
  health or safety of woman or unborn child.

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More Definitions

• Emergency psychiatric condition is when an
  individual presenting to a hospital ED or
  hospital psychiatric department or unit expresses
  suicidal or homicidal thoughts or gestures
  attempt or risk, altered orientation or other
  assaultive behavior that indicates a danger to
  self or others.

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More Definitions

• Necessary stabilizing treatment of EMC means
  further medical examination and treatment as
  required to stabilize EMC, within capabilities of
  staff and facilities available
• To stabilize an EMC means to provide such
  medical treatment of EMC necessary to assure,
  within reasonable medical probability, that no
  material deterioration of the condition is likely
  to result from or occur during transfer of
  individual (for pregnant woman, delivery of child
  and placenta)

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More Definitions

• Stabilized emergency psychiatric condition for
  transfer means when individual is protected and
  prevented from injuring or harming self or
  others.
• Stabilized emergency psychiatric condition for
  discharge means when individual is no longer
  threat or danger to self or others

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More Definitions

• Appropriate transfer means transfer of an
  individual from one hospital that lacks the
  specialized capabilities or capacity to
  render necessary stabilizing treatment of EMC
  to hospital with the specialized capabilities
  and capacity to render necessary stabilizing
  treatment of EMC (must meet 4 requirements)

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More Definitions

• Appropriate transfer 4 requirements
• (1) Transferring hospital (TH) provides treatment
  of individuals EMC within its capabilities and
  capacity that minimizes risks to individuals
  health AND
• (2) Receiving hospital (RH) accepts transfer and
  has capabilities and capacity to treat
  individuals EMC AND

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More Definitions

• (3) TH sends to RH copies of all records related
  to patients EMC available at time of transfer,
  AND provides written consent from patient or
  patients representative OR certification from
  physician and name and address of any TH on-call
  physician who refused or failed to provide
  necessary stabilizing treatment of patients EMC
  AND
• (4) Transfer effectuated via qualified personnel
  and transportation equipment.

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More Definitions

• Appropriate transfer of patient with EMC that
  has not been stabilized can only be made if all
  above four requirements met AND, as to
  requirement (3)
• Individual (or legally responsible person)
  requests transfer in writing, after being
  informed of THs obligations and risks of
  transfer, and acknowledging reasons for request
  and awareness of risks and benefits of transfer
  OR

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More Definitions

• Certification signed by physician at TH that
  medical benefits of transfer to RH for treatment
  outweigh risks of transfer (must contain summary
  of risks and benefits upon which certificate
  based) OR
• If physician not physically present in THs ED, a
  certificate signed by qualified medical person
  after consulting with physician who agrees and
  subsequently countersigns certification.

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More Definitions

• Specialized capabilities means that there is
  physical space, equipment, supplies and
  specialized services that the hospital provides
  (i.e. surgery, psychiatry, obstetrics, intensive
  care, pediatrics, trauma). Capabilities of
  staff means the level of care that the personnel
  of the hospital can provide within the training
  and scope of their professional licenses,
  including coverage available through hospitals
  on-call roster.

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More Definitions

• Capacity to render care is not merely reflected
  by the number of persons occupying a specialized
  unit, the number of staff on duty, or the amount
  of equipment on the hospitals premises, but also
  includes whatever a hospital customarily does to
  accommodate patients in excess of its occupancy
  limits. Thus, if a hospital customarily
  accommodates patients in excess of its occupancy
  limits by whatever means (i.e. moving patients to
  other units, calling in additional staff,
  borrowing equipment from other facilities) it has
  demonstrated the ability to provide services to
  patients in excess of its occupancy limits.

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No Delays in Conducting MSE or
Treatment of EMC

• Delays in conducting MSE or providing treatment
  of EMC prohibited for purposes of routine
  registration, questions regarding payment source
  or insurance status, seeking authorizations from
  third-party payers, obtaining individuals
  medical history from health plan or PCP,
  obtaining parental consent for minors, etc.
• Activities are permissible if simultaneously
  conducted and do not delay MSE or treatment of
  EMC.

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EMTALA does not apply

• If MSE reveals no EMC
• If individual with EMC leaves ED before treatment
  unless individual leaves at suggestion of
  hospital personnel or hospital operating beyond
  capacity and did not attempt to provide
  appropriate transfer of individual to another
  hospital
• If individual refuses treatment for EMC after
  informed of risks/benefits of further examination
  and treatment

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EMTALA does not apply

• If EMC of individual stabilized before transfer
  or discharge
• If individual with unstabilized EMC refuses
  transfer to another hospital after informed of
  risks/benefits of transfer
• If individual who comes to ED is admitted to
  hospital for inpatient services, whether or not
  patient has an EMC (inpatients subject to
  standards and protections of Medicare Conditions
  of Participation)
• If individual boarded in ED awaiting inpatient
  bed if good faith intent to admit to hospital
  (even if improves and discharged before bed
  available)

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EMTALA does apply

• To individual who comes to hospitals ED and
  requests examination or treatment of medical
  condition (as defined above)
• To other individuals (i.e. visitors, employees)
  in hospital or on hospital campus (i.e. within
  250 yards of main hospital building, excluding
  non-medical businesses or other medical entities
  with separate Medicare identities) if request
  examination or treatment or would appear to
  reasonably prudent person to be in need of
  medical attention (i.e. slip-and-fall accident
  resulting in injury, collapse due to illness,
  etc.)

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EMTALA does apply

• To transfer of individual from hospital that
  lacks specialized capabilities or capacity to
  render necessary stabilizing treatment of EMC
  to hospital with specialized capabilities or
  capacity to render necessary stabilizing
  treatment of EMC
• To acceptance by hospital with specialized
  capabilities or capacity to render necessary
  stabilizing treatment of an EMC of individual
  referred from another hospital that lacks
  specialized capabilities or capacity to
  render necessary stabilizing treatment of an
  EMC

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Some Additional Obligations

• Adopt and enforce policies and procedures to
  comply with requirements of EMTALA
• Post signs in DED specifying rights of
  individuals with EMCs and women in labor who
  come to DED for health care services
• Maintain central log of individuals who come to
  DED seeking treatment and indicate disposition
  (refused treatment denied treatment were
  treated, admitted, stabilized, and/or transferred
  or were discharged

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Additional Obligations (contd)

• Maintain list of on-call providers who are
  available to provide further evaluation and
  treatment necessary to stabilize an individuals
  EMC
• Maintain medical and other records related to
  individuals transferred to and from hospital for
  period of 5 years from date of transfer and

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Additional Obligations (contd)

• A recipient hospital that suspects receiving an
  improperly transferred individual (transfer of
  unstable patient with EMC who was not provided
  appropriate transfer) should report incident to
  Centers for Medicare and Medicaid (CMS) or the
  State Agency, or may be subject to termination of
  provider agreement (within 72 hours of
  occurrence suggested in Interpretive Guidelines,
  but not Regulations).

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QUESTIONS? Direct by
telephone call or email to Vicki J.
Hunt Associate University Counsel
272-8668 vhunt_at_salud.unm.edu