Obstetrical Stabilization and Transfer Issues Under EMTALA

This is a book chapter I wrote discussing the history and requirements of the Emergency Medical Treatment and Active Labor Act and how EMTALA applies to care of obstetrical patients. It was initially going to be published in the Manual of Obstetric Emergencies, but I withdrew the chapter from consideration when the publisher Wolters Kluwer demanded indemnification for the chapter. For a discussion of that issue, see this post.

The information below is free to use, but it remains copyrighted. In other words, you can use it for reference or discussions all you want, but you can’t copy and paste it into your web site or into some other project you’re working on and call it “yours.” I’ve tried to reference all statements in the chapter and have done my best to provide reasoning for any assertions made. However, as the site states in the footer, “The posts and comments made on this site DO NOT constitute medical or legal advice and DO NOT create a physician-patient or attorney-client relationship.” This is for information only. Your mileage may vary. Use at your own risk. Don’t smoke. Wear masks. Call your family once in a while – you’ll miss them when they’re gone.

Endnotes are in Roman numerals and references are at the end of the document. Questions or comments are welcome in the comments section below.

EMTALA Background

EMTALA Enactment/Intent

The Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted in 1986 in response to allegations of “patient dumping.” Prior to EMTALA’s enactment, as now, hospitals faced growing cost containment pressures while at the same time being presented with increasing numbers of uninsured and underinsured patients. Since state laws did not impose a duty to treat patients, private hospitals increasingly refused to provide care to uninsured patients. Studies and anecdotal data from the mid-1980s reflected that large numbers of uninsured patients were receiving disparate care and being transferred to public hospitals, often in the midst of medical crises and in unstable condition. For example, a prospective study of 467 medical and surgical patients transferred to Cook County Hospital and subsequently admitted prior to EMTALA’s enactment showed that 87% were transferred because they were uninsured. 24% of those patients were in unstable condition at the time of transfer and 9.4% of patients transferred to the medical service died (compared with 3.8% death rate in non-transferred patients).[i] Similarly, the former director of the emergency department at Parkland Memorial Health and Hospital System in Dallas, Texas described how, prior to the enactment of EMTALA, his emergency department would routinely receive patients in transfer “with knives still in their backs or women giving birth at the door of the hospital” simply because the patients were uninsured. Prior to the enactment of EMTALA, his department began keeping detailed records of transfers and began recording telephone calls from transferring hospitals. One call stated that the reason for transfer was because the patient had no insurance, the transferring hospital “does not want to take care of her,” and administrators were “on [the transferring physician’s] back to have her transferred.” Another recorded conversation reflected transfer of a patient who “need[s] something done that doesn’t have the money to do it with — that’s what your damned hospital is there for.”[ii]

As public awareness of such events grew and more attention was drawn to this issue, Congress created and enacted the first iteration of EMTALA, adding it to the Consolidated Omnibus Budget Reconciliation Act of 1986. The initial intent of EMTALA was to prevent “patient dumping” by requiring hospitals participating in the Medicare program with an emergency department to evaluate and provide treatment to any patient with an emergency medical condition, regardless of the patient’s ability to pay. Court decisions enforcing EMTALA’s provisions echoed this sentiment. For example, in Gatewood v. Washington Healthcare Corp.[iii], the court noted that EMTALA was passed amid growing concern over the availability of emergency health care services to the poor and uninsured. The statute was designed principally to “address the problem of ‘patient dumping,’ whereby hospital emergency rooms deny uninsured patients the same treatment provided paying patients, either by refusing care outright or by transferring uninsured patients to other facilities.”

Court decisions also emphasized that the intent of EMTALA was to address disparate treatment, not to address allegations of medical malpractice. In Bryan v. Rectors and Visitors of University of Virginia,[iv] the court noted that the intent of EMTALA was to “get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat.” The court in Power v. Arlington Hospital Association[v] held that “EMTALA is not a substitute for state law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence,” instead EMTALA applies “whenever and for whatever reason a patient is denied the same level of care provided others.”

Since its enactment, EMTALA has undergone multiple revisions. In 1994, EMTALA was expanded to apply screening and stabilization requirements to patients anywhere on a hospital campus and required receiving hospitals to report inappropriate transfers. In 1998, CMS published guidelines for surveyors when interpreting EMTALA requirements. These guidelines included specific references to responsibilities of on-call physician, treatment of psychiatric emergencies, requirements for medical screening examinations, and interpretations on stability of patients. In 2000, CMS expanded the scope of EMTALA to include inpatient areas, hospital-owned buildings within 250 yards of the hospital’s main campus, and off-campus facilities considered part of the hospital.

EMTALA Enforcement

Despite the sometimes onerous requirements EMTALA imposes, there have been relatively few settlements with the federal government for EMTALA violations.

A 2001 GAO report noted that instead of terminating hospitals from the Medicare program, CMS usually accepts corrective action plans that outline how hospitals will correct their deficiencies and prevent future problems. This report stated that between EMTALA’s enactment and 2001, only four hospitals had been terminated from the Medicare program and that two of those hospitals were later recertified.[vi]

A 2016 study reviewed 6,035 CMS investigations of potential EMTALA violations between 2002 and 2015. Of those investigations, 2,436 were found to have merit, but only 192 resulted in settlements with the Office of the Inspector General.[vii] A senior attorney with the Office of the Inspector General who prosecutes EMTALA violations noted that there are many more violations than are prosecuted, stating that “we don’t have the resources to pursue every case.”[viii] Monetary settlements averaged $33,100 and, although loss of Medicare/Medicaid funding is another potential penalty for EMTALA violations, the researchers found no disclosures regarding exclusions of hospitals from federal funding for EMTALA violations.[ix] The most common reasons for EMTALA settlements were for failing to screen (75%) and failing to stabilize (47%) patients for emergency medical conditions. Twenty three percent of settlements involved either failing to transfer patients or inappropriate transfer of patients while 7% of settlements involved patients in active labor.[x] Only eight of 192 settlements were made against individual physicians. CMS officials stated that most violations involve referral hospitals that “refuse to accept appropriate transfers from facilities that lack the capability to screen and stabilize the patient’s emergency condition.”[xi]

Another study of all civil monetary penalties imposed against individual physicians between 2002 and 2015[xii] showed that six of the eight penalties imposed against physicians were for on-call specialists who failed to respond to a request to evaluate and treat a patient in the emergency department. One of these cases involved an obstetrician who failed to respond to a request to evaluate a patient with symptoms of pre-eclampsia. One penalty was against a neurosurgeon who failed to accept transfer of a patient requiring higher level of care. One penalty was against an emergency physician who erroneously believed that a pregnant 17-year-old could not be treated without parental consent and repeatedly failed to provide the teen with a medical screening examination. This study also noted that settlements against individual physicians are a “rare consequence of EMTALA enforcement.”

EMTALA Requirements

Definition of Key Terms

In order to better understand the requirements imposed by EMTALA, it is first necessary to understand the definition of important terms within the statute.

EMTALA Definition of “Patient”

The language used to define the people to whom EMTALA applies is important. The statute uses the term “individual” rather than “patient.” EMTALA’s requirements were specifically intended to apply to “an individual who is not a patient.” A “patient” is defined as an individual who has been admitted to the hospital as an inpatient or who has begun to receive outpatient services as part of an encounter at a hospital. Those receiving care in the emergency department or who are being monitored in the labor and delivery suite are not considered “patients” and therefore EMTALA would be applicable to such visits.[xiii]

EMTALA Definition of “Comes to the Emergency Department”

By definition, EMTALA applies when an individual “comes to the emergency department”. Even this seemingly straightforward requirement has a wide scope. Current federal regulations define this phrase not only as individuals who actually show up in hospital emergency departments, but also as individuals who are on hospital property (including those inside ambulances) who seek evaluation or treatment for a potential emergency medical condition. Also included in this term are individuals on hospital grounds who have symptoms that would lead a prudent layperson to believe that emergency examination or treatment would be warranted. Individuals in any ambulances owned and operated by the hospital for purposes of bringing patients to the hospital emergency department are also considered to have “come to the emergency department” even if those ambulances are not yet on hospital property.[xiv] From an obstetrical point of view, the definition of “coming to the emergency department” emphasizes that EMTALA applies not only to individuals receiving treatment in the formal emergency department, but also applies to individuals who present to or who are sent to the labor and delivery suite (which are considered “emergency departments” under EMTALA) for any reason. Individuals anywhere on a hospital campus who manifest symptoms of a potential emergency medical condition would also be deemed to have “come to the emergency department” for purposes of EMTALA.

EMTALA Definition of “Emergency Medical Condition”

EMTALA defines an emergency medical condition as:

(A) 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—
(i) 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,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions
(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or
(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child[xv]

There are several important points within this definition. An emergency medical condition is defined as “acute” symptoms. Chronic symptoms are not within the definition of an emergency medical condition. For example, pain from a chronic ovarian cyst would likely not meet the definition of an “acute” condition. However, even chronic conditions may present with acute exacerbations that would fulfill the “acute” requirement. A chronic ovarian cyst may become torsed, causing an emergency medical condition. Other life-threatening conditions may also mimic chronic conditions. Worsening pain from a chronic right ovarian cyst may instead be from an acute appendicitis. An exacerbation of chronic back pain may be from chronic arthritis or may be an acute manifestation of a new more serious issue such as retroperitoneal bleeding, an aortic aneurysm, or metastatic cancer. Screening examinations should not be neglected simply because a patient presents with a chronic complaint. While this definition also requires a need for immediacy of treatment and a potential for serious outcomes, a determination as to whether an emergency medical condition exists is made retrospectively after an investigation – often when there has been a serious adverse outcome and when treatment has been delayed or omitted.

The definition of what constitutes an emergency medical condition also specifically mentions pregnant individuals, but limits the application to pregnant individuals who are “having contractions.” In such cases, an emergency medical condition may occur when delivery is imminent, but may also occur under a much wider scope of any condition that “may” pose a threat to the health or safety of the patient or the unborn child.[xvi]

As with any other medical condition, a determination whether there was potential threat to the health and safety of a pregnant woman or unborn child is made retrospectively and may be biased by the outcome of a case.

EMTALA Definition of “Labor”

Labor is defined as “the process of childbirth beginning with the latent or early phase of labor and continuing through the delivery of the placenta.”[xvii] Despite the fact that EMTALA contains a statutory definition of the term “labor,” the concept of “labor” is not contained within EMTALA’s definition of what constitutes an emergency medical condition. Instead, CMS assumes that any pregnant patient experiencing contractions is in “true labor”. It is important to realize that there are two ways by which EMTALA may be enforced: civil monetary penalties through allegations of violations and enforcement actions by CMS and Department of Justice and civil lawsuits brought in federal court. Courts are not bound by CMS definitions, nor is CMS bound by court rulings. Regardless of whether a  pregnant woman experiencing contractions is in “true” labor or “false” labor, in order to comply with EMTALA, a hospital must still make two determinations: First, for patients requiring transfer, the hospital must determine that there is adequate time to effect a safe transfer to another hospital before delivery. Second, the hospital must determine that any transfer (or discharge) does not pose a threat to the health and safety of the woman or the unborn child.[xviii] If either of these criteria is met, the only way that a pregnant patient with contractions can be “stabilized” under EMTALA is to “deliver (including the placenta).”[xix]

EMTALA Definition of “Stabilization”

EMTALA defines stabilization as treatment that assures “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 a facility.” With regard to a pregnant patient having contractions, stability is defined as delivery of the child, including the placenta.[xx]

EMTALA Definition of “Transfer”

Transfer is defined as movement of a patient outside a hospital’s facilities at the direction of someone acting on behalf of the hospital.[xxi] Transfers include movement of patients from one hospital to another and also include movement of patients from emergency department to off-campus physician offices. Included within the definition of “transfers” are all patients who are discharged. Patients who are admitted or who are moved from one hospital department to another (for example, from the emergency department to the obstetrical suite) are not considered “transferred.” Because movement from then department must be at the direction of someone acting on the hospital’s behalf, patients who leave the hospital against medical advice or leave without being seen are not considered “transferred.” The definition also excludes individuals who are declared dead.

EMTALA Definition of “Appropriate Transfer”

Patients with an emergency medical condition that has not been stabilized who are transferred to another facility must be “appropriately” transferred under EMTALA. An “appropriate transfer” to a medical facility is defined as one in which
1. The transferring hospital provides medical treatment within its capacity to minimize the risks to the health of the individual or unborn child
2. The receiving facility has the space and personnel necessary to treat the patient and agrees to accept transfer of the patient
3. All records related to the treatment of the patient’s EMC must be sent with the patient (including the patient’s consent for transfer),
4. The patient must be sent with qualified personnel and equipment appropriate for the patient’s condition during transfer.[xxii]

In What Locations Does EMTALA apply?

EMTALA does not apply to all venues. In order for EMTALA to apply, an individual must first “come to the emergency department.” EMTALA mandates therefore exclude patients who are at home, who are in other public places, and even patients in private physician offices. Court rulings specifically state that EMTALA actions may be taken only against “participating hospitals” and that the definition of a participating hospital “include[s] neither an individual physician nor a private clinic.”[xxiii]

For example, no EMTALA obligations are imposed upon physicians in private off-campus offices – even if a patient presenting to that office is suffering from an emergency medical condition. An on-call obstetrician who sees a patient in active labor in his private office one block away from the hospital is under no EMTALA obligation to provide stabilizing treatment to that patient. However, if that same patient is brought to the hospital, then EMTALA obligations would extend to the hospital and to the on-call obstetrician. It is important to remember that EMTALA defines “coming to the emergency department” as being present anywhere on a hospital campus with symptoms that would lead a prudent layperson to believe that the patient may need evaluation for an emergency medical condition.

When interpreting this “comes to the emergency department” phrase, CMS has repeatedly stated that EMTALA was intended to apply to all individuals seeking emergency medical care. Therefore, hospital departments outside of the emergency department are nevertheless considered as ‘‘dedicated emergency departments’’ if they provide care for emergency medical conditions on an urgent, nonappointment basis. Any area of the hospital that treats pregnant women with contractions on an urgent nonappointment basis is considered a dedicated emergency department under EMTALA. [xxiv]

EMTALA permits patients to be transported between hospital departments so that screening exams and treatment can be performed. For example, EMTALA allows a pregnant patient with contractions or other potential obstetrical problems to be transported directly to the labor and delivery suite without first being evaluated in the emergency department. Similarly, EMTALA would allow a male patient who went to the labor and delivery suite complaining of dyspnea to be sent directly to the emergency department for medical screening and stabilization.[xxv] If a patient is moved to a separate hospital department, EMTALA Interpretative Guidelines note that the receiving department must be on the hospital campus, that all persons with the same medical condition must be moved to the department under similar circumstances, that there is a bona fide medical reason for moving the patient, and that appropriate personnel accompany individual.[xxvi]

EMTALA may apply to urgent care centers and walk-in clinics, even though they are not technically “emergency departments.” Federal regulations state that if an urgent care center or walk in clinic is hospital-owned and operates under the same Medicare provider number as the hospital, it will be considered a dedicated emergency department if one of three criteria is met:[xxvii]

(1) It is licensed by the State as an emergency department;
(2) It is held out to the public (by name, posted 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;
(3) It provided 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.

Although a walk-in clinic is unlikely to be licensed as an emergency department and it is also unlikely that a walk-in clinic would be for emergency medical conditions as defined under the statute, care should be taken when naming hospital-based urgent care or acute care clinics and advertising the services that those clinics provide. Any inference that a clinic treats emergency medical conditions on an urgent basis (such as “immediate care” or “urgent care”) may give rise to a determination that the clinic is being held out as an emergency department and is therefore subject to EMTALA regulations.

EMTALA was intended to create a duty to treat patients seeking emergency medical care where no such duty previously existed. Patients who are directly admitted to a hospital are specifically excluded from EMTALA’s requirements. Recall that EMTALA applies only to individuals who are “not patient[s]” and that EMTALA defines a “patient” as an individual who has been admitted to the hospital.

The EMTALA Medical Screening Exam

When is a medical screening exam required under EMTALA?

Once a patient has been deemed to have “come to the emergency department,” either the patient or someone acting on the patient’s behalf must request examination or treatment for a medical condition. Visitors, patients requesting directions, patients wanting to pay their bills, and patients seeking to register for outpatient testing would all fall outside of this requirement. Keep in mind that under the definition of “comes to the emergency department,” if a prudent layperson observer would believe that an individual on hospital property needs emergency examination or treatment and the hospital or a hospital representative is aware of the individual and the concerning symptoms, a medical screening exam may still be required regardless of whether the patient requests an examination. To avoid allegations of EMTALA violations, it may be wise to err on the side of providing a screening exam (or obtaining a written refusal of care) for individuals on hospital property if there is a question about a patient’s medical status.

Even if a facility lacks necessary services to stabilize a potential emergency medical condition, it still must provide the patient with a screening exam. For example, a 24-week pregnant patient with uterine contractions and abdominal pain presented to a Texas hospital that had no obstetrician and that did not provide obstetrical services. She was discharged and told to seek care at another facility that provided obstetrical care. The hospital was investigated by the Office of the Inspector General and agreed to a $20,000 civil monetary penalty for failing to provide a medical screening exam.[xxviii]

A hospital is only required to perform a screening examination within the capability of its emergency department, including those ancillary services routinely available to the emergency department.[xxix] For example, if an MRI is not routinely available to a rural emergency department, it would not be required as part of an EMTALA screening examination for that facility. Ancillary services may include consultations with specialists if the provider determines that such a consultation is necessary to rule out an emergency medical condition.

What is required for a medical screening exam under EMTALA?

An “Appropriate Screening”

EMTALA requires that hospitals perform a medical screening exam within its capabilities including any ancillary services routinely available to the emergency department in order to determine whether or not an emergency medical condition exists.[xxx] There are no specific guidelines delineating exactly what examination, testing, or treatment must be performed, nor could there be. In most cases, the presence of an emergency medical condition depends upon an individual’s presenting signs and symptoms, which can vary widely. For example, depending upon the symptoms and physical findings, an individual with leg pain could have chronic arthritis requiring no further treatment, a fracture requiring splinting, a DVT requiring further testing and anticoagulants, or an arterial blockage requiring emergency surgery. A patient with chest pain may have herpes zoster requiring quick visual confirmation or a myocardial infarction requiring an intra-aortic balloon pump and cardiac bypass surgery. Therefore, the determination of what constitutes an “appropriate” medical screening exam must be driven by an individual’s presenting complaint as well as the presenting signs and symptoms.

Triage alone is insufficient to meet the obligations for a screening exam under EMTALA. Triage is intended to categorize and prioritize the order in which patients are seen, not to determine whether the patients are experiencing an emergency medical condition.

With litigation involving EMTALA, courts have created some precedent regarding what does and does not constitute an “appropriate” medical screening exam. In an oft-cited case, the court in Correa v. Hospital San Francisco noted that “EMTALA requires an appropriate medical screening, but does not explain what constitutes one” (it later labeled the term “appropriate” as “one of the most wonderful weasel words in the dictionary”).[xxxi] From a legal standpoint, the court in Correa held that an appropriate screening exam under EMTALA should be “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients.” If hospitals create policies regarding performance of medical screening exams, a failure to follow those policies may be sufficient to show that patients were inappropriately screened pursuant to EMTALA.[xxxii] Screening exams that are “wholly inadequate” or “inordinately delayed” may also be deemed inappropriate for purposes of EMTALA screening.[xxxiii]

When investigating complaints, CMS is not bound by legal definitions of what constitutes a sufficient medical screening exam. The Interpretive Guidelines used by CMS investigators reflect that the screening process is subjective and “can involve a wide spectrum of actions.”[xxxiv] The Guidelines also emphasize that for proper screening, the medical record “must reflect continued monitoring … until it is determined whether or not the individual has an emergency medical condition and, if he/she does, until he/she is stabilized or appropriately transferred.” There are many instances of civil monetary penalties being imposed on hospitals for failing to provide ongoing re-evaluation of patients. For example, in April 2018, North Carolina Hospital entered into a settlement with the Office of the Inspector General because a 28-week pregnant patient with ruptured membranes and ongoing contractions was not re-evaluated for 1 hour and 45 minutes between her initial evaluation and her transfer to a tertiary care facility.[xxxv]

Based on CMS advisory letters, CMS citations, and prior EMTALA litigation, one source[xxxvi] suggests that documentation of the following information be included with EMTALA medical screening examinations:

Triage record, ongoing documentation of vital signs, verbal history, physical exam of suspected or potentially affected organ systems, testing necessary to rule out the presence of emergency medical conditions, use of on-call physicians or other personnel to help diagnose and stabilize patient when needed, resolution of abnormal findings or test results by serial values or explanation of why they are not significant to the presentation, vital signs at time of discharge or transfer.

An apparently stable pregnancy can suddenly become unstable. Investigations of adverse outcomes related to previously straightforward labor may be distorted by retrospective bias, raising issues of whether a patient received “appropriate” screening required by EMTALA. To help standardize the EMTALA screening process, the American College of Obstetricians and Gynecologists Committee on Obstetric Practice has recommended implementing validated triage acuity tools in order to guide screening examinations for individuals presenting to hospital obstetric units.[xxxvii] One such tool is the Obstetric and Neonatal Nurses’ Maternal-Fetal Triage Index.[xxxviii] Another such tool is the Obstetrical Triage Acuity Scale (OTAS) which includes variables such as degree of labor, amount of bleeding, degree of hypertension, fetal assessments to create a five-level acuity scale with high inter-rater reliability.[xxxix] While triage alone is insufficient to fulfill EMTLA requirements, the variables addressed within these triage systems may help to improve patient flow and standardize determinations as to the stability of women presenting with pregnancy-related complaints.

With regard to pregnant women who may be in active labor, CMS interpretive guidelines state that the medical records should document “ongoing evaluation of fetal heart tones, regularity and duration of uterine contractions, fetal position and station, cervical dilation, and status of the membranes, i.e., ruptured, leaking, intact.” It would also be wise to include any monitoring strips that have been obtained. If, after a reasonable time of observation, it is determined that a patient is having Braxton Hicks contractions, that determination should be clearly documented in the patient’s medical record.[xl]

Non-discriminatory EMTALA Screening

In addition to being reasonably calculated to uncover potential emergency medical conditions, medical screening exams must also be carried out in a uniform fashion. For example, providing fetal monitoring and ultrasonography to an insured 38-week pregnant patient experiencing contractions while providing only a cursory pelvic exam to a similar patient without insurance would likely be deemed an EMTALA violation. Court opinions repeatedly note that non-discrimination is a key component of a medical screening exam. One representative opinion held that “an EMTALA ‘appropriate medical screening examination’ is not judged by its proficiency in accurately diagnosing the patient’s illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.”[xli] Because EMTALA is a federal law that trumps state laws, even minors who may not be able to consent to medical treatment under state law must still receive an appropriate and non-discriminatory screening exam  along with any necessary stabilizing treatment under this federal statute. In order for a plaintiff to succeed in an EMTALA claim against a hospital, the plaintiff must only show that the hospital did not follow a standard screening procedure that would have been provided to any other patient with similar symptoms. In other words, a plaintiff would not need to show malicious intent or even an injury behind allegations of disparate treatment – only that the disparate treatment occurred. In Owens v. Nacogdoches County Hosp. Dist.[xlii], an uninsured pregnant patient experiencing contractions was briefly monitored, deemed stable, then referred to a county hospital 200 miles away to deliver her child. Ultimately, she delivered a healthy child four days later. Although the court did find evidence of bad intent with the decision to refer the patient to a county hospital, neither the mother nor the unborn child suffered any physical injuries (although the mother did claim mental anguish). Nevertheless, because it had provided disparate care to the patient, the court found the initial hospital violated EMTALA and awarded the patient damages and attorney’s fees.

Who May perform an EMTALA Medical Screening Exam?

EMTALA regulations do not specify the type of practitioner who must perform a medical screening exam, only that the examination be performed by an individual “who is determined qualified by hospital bylaws or rules and regulations” and who is supervised by a qualified member of the medical staff.[xliii] Note that CMS requires hospitals to formally designate those capable of performing screening exams in the rules and regulations of the medical staff. Informal determinations regarding who may perform medical screening examinations (such as an unwritten policy by created by a department director) are not sufficient to satisfy this requirement. Whether nurses may perform medical screening examinations is not settled. Obstetrical screening evaluations by nursing personnel are commonplace and, in many cases, obstetrical nurses have more experience than emergency physicians in determining whether second and third trimester obstetrical patients are suffering from a pregnancy-related emergency medical condition. Two cases have held that hospital policies allowing nurses to perform medical screening exams on selected patients does not violate EMTALA screening requirements.[xliv] If hospital policies require that a physician perform obstetrical medical screening examinations, courts have held that a hospital’s failure to follow its own policy is evidence that it is providing disparate care. Therefore, if nurses are performing obstetrical screening exams, written hospital procedures should specifically state that this is an acceptable practice. Although EMTALA does not exclude nurses as individuals “qualified” to perform medical screening exams, CMS has in some cases cited hospitals for EMTALA violations when physicians have not performed EMTALA screening examinations. In early 2018, one such citation was filed against a Tennessee hospital system that allowed obstetrical nurses to perform medical screening exams on pregnant patients.

Misdiagnosis – EMTALA vs. malpractice

Courts consistently rule that EMTALA screening requirements are not intended as a proxy for patients to obtain redress for medical malpractice in federal court. One opinion noted that a medical screening exam was not intended to address misdiagnosis, but was “merely an entitlement to receive the same treatment that is accorded to others similarly situated.”[xlv] If patient receives a standard screening exam that is provided to all other patients with similar complaints, the hospital has satisfied EMTALA’s screening requirements — even if the patient is ultimately misdiagnosed. In other words, absent a “wholly inadequate” exam,[xlvi] EMTALA screening requirements focus on uniformity rather than negligence. One court opinion held that questions regarding misdiagnosis and inappropriate treatment of a patient’s condition “are best resolved under existing and developing state negligence and medical malpractice theories of recovery.”[xlvii] Although federal courts do not impose civil liability upon misdiagnosis with respect to EMTALA, CMS is not bound by legal precedent. CMS has cited hospitals for negligent misdiagnosis of emergency medical conditions in the emergency department.

Discussion of specific EMTALA issues related to pregnancy

There is no standard approach to evaluation of every pregnant patient. While pregnant patients may present with unique issues that are sometimes diagnostically challenging, appropriate workups don’t change due to EMTALA regulations. In fact, an appropriate EMTALA screening exam does not even require a correct diagnosis, only a uniform screening of patients presenting with similar symptoms. Despite this general rule, EMTALA does impose several requirements on management of certain issues related to pregnancy.

How EMTALA applies to active labor/false labor/delivery

Pregnant individuals having contractions are deemed to have an emergency medical condition if there is “inadequate time to effect a safe transfer to another hospital before delivery” or if such a transfer “may pose a threat to the health or safety of the woman or the unborn child.”[xlviii] Both of these definitions are subjective and subject to hindsight bias. If a pregnant patient with contractions is transferred to another hospital but delivers the child en route, the transferring practitioner may be accused of mismanaging the patient and violating EMTALA. Similarly, if a pregnant patient or the unborn child suffers any bad outcome, in retrospect, the practitioner may also be accused of an EMTALA violation.

An important first step in evaluating a pregnant individual with contractions is to determine whether those contractions are a manifestation of active labor, whether the contractions are Braxton Hicks contractions, or whether the patient’s perception of uterine contractions are instead an entirely different process (such as bladder spasms or intestinal cramps). If a pregnant individual is having contractions, EMTALA’s stabilization requirements apply in two circumstances:  there is inadequate time to effect a safe transfer to another hospital before delivery, or transfer may pose a threat to the health or safety of the woman or the unborn child[xlix] However, CMS may also allege that an individual in “active labor” also requires stabilizing treatment. In such cases, CMS may allege that a patient is not “stabilized’ until either the patient has delivered (including the placenta) or the individual with contractions is determined to be in “false labor.” However, the diagnosis of false labor can only be made after a patient has been observed for “a reasonable time” and a qualified medical provider certifies that the woman is in “false labor.” As with the definition of “appropriate” screening exam, what constitutes a “reasonable time” of observation is left undefined. Alternatively, a pregnant patient’s perception of contractions may sometimes be entirely unrelated to the patient’s pregnancy. If a practitioner makes the determination that a patient is not in active labor, either by diagnosis of false labor or by diagnosis of an alternative reason for the patient’s symptoms, the reasons for that decision should be clearly noted in the patient’s medical record.

How EMTALA applies to threatened/actual miscarriage

Miscarriages present an additional layer of complexity in complying with EMTALA mandates. If a pregnant individual seeks evaluation of “contractions” at any gestational age, EMTALA requires the same assessment and treatment as a full-term pregnancy. A determination that the patient is not having “contractions” or that the patient is in “false” labor may obviate  the need for delivery, but does not end the EMTALA analysis.  A practitioner is still responsible for stabilizing any other emergency medical condition related to the contractions. For example, abdominal contractions related to a bowel obstruction or appendicitis may not be ignored just because active labor has been ruled out. In addition, with pregnant individuals having ongoing contractions, a determination must be made that both criteria for “stabilization” under EMTALA have been met. If a patient requires transfer, the hospital must determine that there is adequate time to effect a safe transfer to another hospital before delivery. The hospital must also determine that any transfer (or discharge) does not pose a threat to the health and safety of the woman or the unborn child.[l] If either of these criteria is not met, the only way that a pregnant patient with contractions can be “stabilized” under EMTALA is to “deliver (including the placenta).”[li]

Miscarriages raise even further technical issues. If fetal demise is present, there can be no risk to the unborn child since the child is already dead. Therefore there can be no threat to the health of the fetus to create a potential emergency medical condition under EMTALA. Another technical issue is that individuals carrying a dead fetus, by definition, are not considered “pregnant” since pregnancy is defined as carrying a developing embryo or fetus. Because a dead fetus is no longer “developing,” a woman carrying a dead fetus cannot be considered pregnant and therefore the additional stabilization considerations for pregnant patients with contractions should not apply. Even these technical arguments may not avoid liability for an EMTALA-related lawsuit.

Consider the case of Morin v. Eastern Maine Medical Center.[lii] In this case, a patient with a 16-week high risk pregnancy went to the emergency department for evaluation of “suprapubic cramps 10 minutes apart.” Her cervix was neither dilated nor effaced. An ultrasound revealed a nonviable fetus. The patient requested admission and delivery of the nonviable fetus. After evaluation by an obstetrician, who noted that the patient was still “having some contractions,” but that her cervix was “not ready for delivery,” the patient was sent home with instructions to see her obstetrician the following day. Later that evening, the patient delivered the dead fetus at home. She then sued the hospital for violating EMTALA’s stabilization requirements. While the hospital argued that EMTALA was not intended to apply to patients experiencing miscarriages, the court noted that the plain language of EMTALA required stabilization of pregnant patients experiencing contractions and that the hospital “cannot avoid EMTALA by assigning her a different diagnosis.” In addition, the court noted that the hospital’s interpretation of EMTALA would result in the “disquieting notion” that EMTALA allows hospitals “to treat women who do not deliver a live infant differently than women who do.” The patient was awarded $50,000 in damages and $150,000 in punitive damages. The Morin opinion also cited other court opinions ruling that EMTALA’s stabilization requirements may apply to patients experiencing miscarriages.[liii]

When pregnant individuals of any gestational age request evaluation for abdominal complaints, a clear notation of the absence of “contractions” or, after a reasonable period of observation, the presence of “false” contractions may help to avoid liability for claims of failure to stabilize a pregnancy-related emergency medical condition under EMTALA. Although case law is still unsettled on the topic and rulings on the issue have been criticized, some courts have considered outpatient management of second trimester inevitable abortions as a potential threat to the health and safety of the mother. Keep in mind the potential legal risks associated in discharging patients with a diagnosis of inevitable abortion or complete abortion under such circumstances.

How EMTALA applies to sexual assault

EMTALA imposes screening requirements on hospitals when an individual “comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition.”[liv] Strictly forensic examinations such as obtaining evidence for prosecution of sexual assault or obtaining alcohol levels for prosecution of impaired drivers are not considered “medical conditions” and therefore are not mandated under EMTALA. If an individual requests evaluation for a complaint or injury related to the forensic examination or if a reasonable person would consider that the individual would warrant evaluation for an emergency medical condition, then EMTALA would be triggered and standard screening examination and stabilizing treatment would need to be performed. Even if an individual’s presentation does not trigger EMTALA’s screening or stabilization requirements, state law may impose additional evaluation and treatment requirements upon medical providers. For example, Illinois’ Sexual Assault Survivors Emergency Treatment Act[lv] requires that sexual assault victims receive not only an examination, but also any appropriate laboratory testing, oral and written information regarding possibilities of sexually transmitted diseases and pregnancy, contraceptive medications and HIV prophylaxis when indicated, and referral for appropriate counseling. It is therefore important to be familiar with requirements of both state and federal laws when evaluating victims of sexual assault.

EMTALA Stabilization

A determination whether a patient has been “stabilized” is important. While EMTALA requires that a hospital utilize all of its resources to stabilize an identified emergency medical condition, once that condition is stabilized, EMTALA no longer applies. Similarly, EMTALA does not apply if a screening examination does not identify an emergency medical condition (i.e. the patient was deemed “stable” at presentation). It is important to note that EMTALA’s mandates hinge on whether an emergency medical condition is identified using an appropriate medical screening exam, not on whether an emergency medical condition ultimately existed. If no emergency medical condition is identified, EMTALA does not apply. In Urban v. King[lvi], a woman with twins and a high-risk pregnancy was sent to a labor and delivery department for a fetal stress test. That test was non-reactive, but demonstrated fetal heart tones for each twin. The patient was discharged home and instructed to follow up the following day for a repeat stress test. That stress test was also abnormal. A biophysical profile showed no movement in either fetus and absence of a fetal heart rate in one fetus. Both babies were delivered by Caesarian section later that day. One was stillborn, the other had brain damage. The parents sued for failure to provide stabilizing treatment during the first visit. The court dismissed the case, noting that the hospital had not diagnosed an emergency medical condition and that in order to succeed under a “failure to stabilize” claim, a plaintiff “must prove the hospital had actual knowledge of the individual’s unstabilized emergency medical condition.” Similarly, in Summers v. Baptist Medical Center Arkadelphia[lvii], the court held that the stabilization requirements in EMTALA apply “only if the hospital determines that the individual has an emergency medical condition.” Even though one may escape EMTALA liability for failing to identify an emergency medical condition, patients who suffer harms may still pursue medical negligence claims against providers who fail to diagnose emergency medical conditions.

EMTALA Stabilizing Treatment

If an emergency medical condition is identified, a hospital must either provide stabilizing treatment or, if the hospital lacks the capability to stabilize the emergency medical condition, it must arrange for an appropriate transfer of the patient to another facility with the capability to provide stabilizing treatment.[lviii]

EMTALA defines stabilization in non-pregnant patients or in pregnant patients without contractions as treatment assuring “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 a facility.” If a pregnant patient with contractions has an emergency medical condition, stability is defined as delivery of the child, including the placenta.[lix]

The determination as to whether a patient is stabilized is a subjective decision made by the physician treating the patient. As with the term “appropriate,” there is no clear definition as to when a patient should be considered “stable.” From a patient care perspective, if the treating physician decides that there is no significant probability that the patient may deteriorate, then the patient is deemed “stabilized” under the law. However, if the patient later suffers a bad outcome, both CMS and courts may review the case to determine whether the physician’s decision was appropriate. Notation of normal vital signs, improving symptoms, and any other positive response to treatment will help to objectively show that a patient is improving and not deteriorating and that the determination of “stability” was appropriate.

EMTALA’s Requirements for On Call Lists

EMTALA does not require physicians to be “on-call.” Instead, EMTALA requires hospitals 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.”[lx] The list must contain the names of specific physicians, not a list of “groups” that share call. For example, “Empire Obstetrics” would be considered unacceptable for identifying a responsible on-call physician. No specialist is required to be “on-call” 24 hours, 7 days per week. If smaller hospitals have only one or two specialists in a given specialty, that hospital may have partial coverage for that specialty without violating EMTALA’s requirements. On the days that the specialists are not on call, the hospital would be considered as having no specialty coverage for that specialty for purposes of EMTALA.

Once a physician agrees to accept on-call duties, the physician must be reasonably available to provide evaluation and stabilizing treatment of patients that may be suffering from an emergency medical condition. EMTALA imposes the possibility of significant monetary penalties on on-call physicians who fail to respond to requests to evaluate and treat emergency medical conditions. Even though the likelihood of receiving such a penalty is small, on-call physicians have received a majority of such penalties. Of eight recorded civil monetary penalties imposed on physicians, six of those penalties were imposed on specialists who failed to respond to a request to evaluate and treat patients in the emergency department (including one obstetrician).[lxi]

EMTALA’s Requirements for Patient Transfer

A “transfer” is defined as movement of a patient outside the hospital’s facilities by the direction of someone acting on behalf of the hospital.[lxii] In this regard, transfers include patient discharges and movement of patients from emergency department to off-campus physician offices for further evaluation (CMS discourages transfer to off-campus physician offices unless there is a genuine medical reason for doing so – transfer for physician convenience is considered unacceptable). In some cases, a hospital may not have resources available to stabilize an emergency medical condition. Patients with unstablized emergency medical conditions usually need to be transferred to a different hospital that has more resources available. Consider, for example, a patient who presents to a hospital with no obstetrical services available and who is in active labor with a prolapsed umbilical cord. Transfer of stabilized patients is not governed by EMTALA. Unstable patients may be transferred under EMTALA provided that the benefits of transfer outweigh the risks of transfer and the hospital has attempted to stabilize the patient to the best of its ability within its capabilities of the full resources of the hospital.  If a patient is unable to be stabilized after the hospital has used all of its available resources, the patient must be “appropriately” transferred to a facility that has the resources available to stabilize the patient.[lxiii]

EMTALA has multiple requirements that must be met in order for a transfer to be considered “appropriate.” Fortunately, most hospital transfer forms incorporate these requirements, so complying with EMTALA’s “appropriate transfer” mandate is often aided simply by completing proper documentation.

Transfer Certification under EMTALA

The initial portion of transfer documentation requires a certification which can be completed by either an individual or a physician. If the individual completes the certification, the individual must request the transfer, must acknowledge the hospital’s EMTALA obligations, must acknowledge the risks and benefits of transfer, and must indicate the reasons that the individual has requested transfer. If a physician completes the certification it must state that, based upon the information available at the time of transfer, the benefits reasonably expected from transfer to another facility outweigh the risks of transfer. The certification must contain a summary of the risks and benefits upon which it is based.[lxiv] A summary of risks and benefits must specifically state what services can be provided at a receiving hospital that are not provided at the transferring hospital. Generic checkbox statements such as “higher level of care” or “needs specialist” have been cited by CMS as being inadequate. Statements such as “high risk pregnancy requiring evaluation by perinatologist” or “multiple trauma patient requiring evaluation by high-risk obstetrician and trauma surgeon” would better reflect the specific need for transfer. One of the sources of personal liability for physicians under EMTALA is misrepresenting that benefits of transfer outweigh risks of transfer if the physician knew or should have known otherwise.[lxv] If a potential risk of transfer is death or permanent disability, those risks should be listed. Most transports involve risk of traffic accidents or of increased pain due to movement during ambulance transport. Worsening symptoms (specifically based on the patient’s medical condition) are also a potential risk which could be noted. For example, if a woman in active labor is being transported, condition-specific risks such as abrupt delivery, uterine hemorrhage, and dystocia (obstructed labor) may be listed if the physician deems that they should be considered by the patient. If no physician is available at the time of transfer to sign the certification, the qualified provider may sign the certification after consultation with a physician, but the physician must later countersign the certification for it to be valid.[lxvi]

The “Appropriate Transfer” under EMTALA

Once the certification has been completed, the transfer must be “appropriate.” An appropriate transfer requires the transferring hospital to:[lxvii]

• Provide treatment within its capacity to minimize the risks to the individual and, when applicable, the unborn child.
• Determine that the receiving facility has necessary space and qualified personnel to treat the individual’s emergency medical condition and has agreed to accept the transfer. Transporting a patient to a facility that has no beds available or whose needed specialist is unavailable would be of little benefit to the patient and would delay definitive care.
• Send to the receiving hospital copies of all medical records related to the emergency medical condition which are available at the time of transfer. A list of documents is contained within this section of the law and includes history, observations of signs and symptoms, preliminary diagnoses, results of tests and diagnostic studies, treatment provided, and the consents/certifications required for transfer. If applicable files are not available at the time of transfer, they must be sent as soon as practicable after the transfer. This requirement improves continuity of care and helps the receiving facility focus on what steps must be taken to stabilize the individual.
• Send to the receiving facility the name and address of any on-call physician who has refused to come to the emergency department to assist in rendering necessary stabilizing treatment. This requirement allows the receiving hospital to report the on-call physician so that CMS can investigate the matter.
• Arrange for qualified personnel and transportation equipment during the transfer — including the use of appropriate life support measures. This requirement helps to assure that the individual does not deteriorate during transport. Time-sensitive emergencies may require helicopter transport. High risk pregnancies may require transport by an obstetrical nurse. Premature newborn infants may require a pediatric critical care transport team. When in doubt, consider a higher level of personnel and equipment for transport. If an individual suffers an adverse outcome during transport, it is the responsibility of the sending hospital – which then may be cited for failing to arrange an “appropriate” transfer. If the physician’s preferred method of transport is unavailable (for example, air transport is not available due to adverse weather), it is good practice to document why an alternate form of transportation was chosen. One may not remember the weather situation six months later during an investigation for an “inappropriate” transfer.

CMS regularly cites hospitals for what it considers to be inappropriate transfers. For example, in one case[lxviii], a 36-week pregnant patient presented to a Georgia hospital after her water had broken and told a nurse that she wanted to see her obstetrician at another Georgia hospital. She received no examination and was instead escorted to her car and told to call 911. EMS brought her to her desired hospital where she delivered a healthy child less than an hour later. The hospital was fined $25,000 for failing to provide the patient with a screening examination and for an inappropriate transfer.

Duties of Receiving Hospitals Under EMTALA

Hospitals with specialized capabilities or facilities may not refuse to accept an appropriate transfer of an individual requiring such capabilities if the receiving hospital has the capacity to treat the individual.[lxix] A receiving hospital may refuse requests for “lateral transfers” – where the same stabilizing services are available at both the sending and receiving hospitals. If a hospital has “specialized capabilities” and the capacity to treat the individual with an emergency medical condition, with a few exceptions, it is required to accept appropriate transfers of unstable individuals from other facilities.

Whether a receiving hospital has the capacity to accept a transfer is determined by the services required. If a receiving hospital’s specialized unit is full, if it does not have the staff necessary to treat a patient or if it does not have the equipment available to treat the patient, it may be able to refuse an appropriate transfer.[lxx] However, before refusing transfer based on lack of capacity, CMS expects a hospital to take its customary steps to accommodate patients in excess of its occupancy limits (such as moving patients to other units, calling in additional staff, or borrowing equipment from other facilities).[lxxi] Receiving hospitals are not obligated to accept transfer of patients from sending hospitals if the sole reason for transfer is lack of capacity at the sending hospital.[lxxii].

EMTALA gives multiple examples of “specialized capabilities” that may subject receiving hospitals to patient transfers, including burn units, trauma units, neonatal intensive care units, or, with respect to rural areas, regional referral centers.[lxxiii] Much to the chagrin of tertiary care centers, in practice, “specialized capabilities” may constitute any services provided at the receiving hospital that are not available at the sending hospital. If a patient is either unstable or the patient’s stability cannot be determined at the sending hospital and the receiving hospital has the capacity to provide services to the patient which are not available at the sending hospital, the receiving hospital must accept the transfer. For example, if no obstetrical services are available at the sending hospital, a receiving hospital with obstetrical services cannot refuse the transfer. If the sending hospital has obstetrical services, but no high risk obstetrical services and the patient is deemed “high risk,” then a receiving hospital that provides high risk obstetrical services cannot refuse transfer. If the sending hospital generally provides obstetrical services but has no obstetrician on call for a given day, the receiving hospital providing obstetrical services cannot refuse transfer of an obstetrical patient because, for that day, the receiving hospital has specialized services not available to the sending hospital. While these requirements may ultimately make some specialists “on-call for the region,” EMTALA does not allow on-call specialists to refuse transfer for patients from other geographic areas (except in cases where the transferring hospital is outside the US). Even if a hospital closer to the transferring provides needed specialty care, a receiving hospital cannot refuse an appropriate transfer under EMTALA.

“Reverse Dumping” under EMTALA

Refusing to accept an appropriate transfer under EMTALA is termed “reverse dumping” and may give rise to additional EMTALA-related penalties.

There are few exceptions to the rule that a hospital with “specialized capabilities” must accept an appropriate transfer under EMTALA. Receiving hospitals may refuse “lateral transfers” – where the same services are provided at both facilities. Receiving hospitals may refuse transfers if they do not have the capacity to accept the transfer. Receiving hospitals may refuse to accept admitted patients. Once a patient has been admitted, EMTALA duties end. Patients who are sent to a medical floor but who remain in “observation status” are not considered admitted and are still protected by EMTALA’s mandates – even though they may occupy a hospital bed. Finally, a hospital may refuse a transfer if the transfer is not “appropriate” as defined by EMTALA.

There are several excuses that receiving hospitals may attempt to use to refuse transfer including rejecting a patient that is not from their county or “catchment” area, rejecting patients due to network affiliations or insurance coverage, and rejecting patients because other hospitals may be in closer proximity to the transferring hospital. None of these is a valid reason to refuse appropriate transfer from another facility. Relying on these excuses will most certainly result in a citation if a case is investigated. At least one civil monetary penalty has been imposed against an individual physician for failing to accept an appropriate transfer.

There are many instances in which hospitals have been cited for failing to accept appropriate transfers. In St. Anthony Hosp. v. US Department of Health and Human Services[lxxiv], a trauma patient was brought to a small rural hospital. The emergency physician contacted the regional trauma center for transfer and was informed that their trauma team was already in the middle of two emergency surgeries and did not have the capacity to accept the patient in transfer. The emergency physician then called another hospital capable of accepting the transfer and was told that the surgeon “wasn’t interested” in the case and that the patient was “University Hospital’s problem.” The second hospital was fined $35,000 for “reverse dumping”. That decision was upheld on appeal. Note that in this case, no penalty was imposed on the first hospital for refusing transfer because it did not have the capacity to treat the patient – which is a valid reason for refusing a transfer.

In a March 2018 case [lxxv], a Florida hospital settled accusations that it failed to accept a patient with a 6-week intrauterine pregnancy and a ruptured left ectopic mass. The receiving facility first refused to take an “ED to ED transfer” and referred the calls to the on-call obstetrician. When the on-call obstetrician learned that the patient was “out of county,” he also refused the transfer. The hospital agreed to a $42,500 monetary settlement. In this case, the on-call obstetrician was fortunate to avoid an additional individual civil monetary penalty for his actions.

EMTALA’s “Snitch Rule”

Hospitals offering specialty services are required to accept appropriate transfers under EMTALA, but federal regulations also impose a duty on receiving hospitals to report inappropriate transfers of unstable patients to CMS. [lxxvi] This requirement is sometimes called the “snitch rule.” Under CMS Interpretive Guidelines, a hospital having “reason to believe” that a violation occurred is required to report the suspected violation to CMS within 72 hours or risk fines of up to $50,000 per occurrence and/or termination of its Medicare provider agreement for failing to report the potential violation.

Unfortunately, this rule creates many dilemmas. A receiving hospital’s ability to determine whether a transfer was appropriate can be difficult or impossible without a thorough investigation of what occurred prior to transfer. Often, a receiving hospital won’t be able to obtain information sufficient to make such a determination. Obviously if a specialist fails to present to the emergency department at the sending facility, the receiving facility would be given notice of this issue and would be duty-bound to report it. However, a receiving facility is not going to be able to determine whether a specialist really was on call or whether a sending hospital could have managed a patient appropriately at its own facility. In addition, reporting a hospital that serves as a patient referral source would likely result in a rapid decrease in future referrals from that facility.

A more practical method of addressing potentially inappropriate transfers might be to have administrators from both facilities promptly discuss a potential case to review all of the facts before deciding whether to file a report. Discussions such as this would also serve to avoid similar situations in future transfers.

When do EMTALA duties end?

EMTALA duties end when no emergency medical condition is identified

EMTALA imposes a duty on hospitals to provide stabilizing treatment only when the hospital “determines that the individual has an emergency medical condition.”[lxxvii] Absent an emergency medical condition, no treatment is required by EMTALA. Even if a patient is later found to have had an emergency medical condition, if the patient received an appropriate and non-discriminatory screening examination, the hospital’s EMTALA duties end after the determination that no emergency medical condition exists. Lack of duty under EMTALA does not equate to lack of negligence. Even if there is no cause of action under EMTALA, failing to diagnose an emergency medical condition may still give rise to a medical malpractice case and may also incite a CMS investigation if a bad outcome ensues.

EMTALA duties end when an emergency medical condition is stabilized

EMTALA does not apply to stabilized patients. If a patient presents with an emergency medical condition, EMTALA ceases to apply once the hospital provides treatment to the point that “within reasonable medical probability” there will be “no material deterioration” in the individual’s condition upon transfer (including discharge) from the emergency department. For example, a patient with hyperemesis gravidarum may be tachycardic, hypotensive, dehydrated, and unable to tolerate oral intake. After receiving IV fluids and antiemetics, the patient feels better, her vital signs stabilize, and she is able to tolerate oral fluids. Lab testing shows no abnormalities. Despite entering the emergency department with an emergency medical condition, treatment has stabilized the emergency medical condition and EMTALA no longer applies. If the treating physician believes that the patient is capable of being discharged home, the patient may be discharged. If the physician believes the patient may need additional IV fluids and monitoring, the patient may also be admitted. In neither case would there be any additional EMTALA duties – even if the patient is admitted and later deteriorates (since EMTALA does not apply once a patient has been admitted). If a stabilized patient later decompensates, that decline in condition may draw into question the initial determination of the patient’s “stability.” Documenting ongoing monitoring, normalization of any abnormal vital signs, re-evaluation of the patient’s condition, and resolution of the patient’s symptoms will all help to bolster a physician’s determination that any emergency medical condition has stabilized.

Special consideration must be given to stabilization of pregnant women with abdominal contractions. If a pregnant patient is having contractions, she is considered to have an emergency medical condition if there is no time to effect a safe transfer to another facility before delivery or if transfer or discharge may pose a threat to the health and safety of the woman or unborn child. In either of these cases, stabilization of the emergency medical condition can only occur by delivery of the baby and placenta. If safe transfer could occur before delivery or if transfer/discharge would not pose a threat to the health and safety of the woman or unborn child, then there is no pregnancy-related emergency medical condition and (assuming no other non-pregnancy related emergency medical conditions exist) EMTALA does not apply. If a pregnant woman’s contractions resolve, then the woman’s emergency medical condition has stabilized and (again assuming no other non-pregnancy related emergency medical conditions), EMTALA no longer applies. For example, if a pregnant woman is experiencing contractions due to dehydration and those contractions resolve with intravenous fluids, the woman is no longer experiencing a pregnancy-related emergency medical condition as defined by EMTALA. A notation as to the presence, absence, or resolution of contractions is therefore an important point to document in the medical records of a pregnant patient with contractions when considering whether her emergency medical condition has been “stabilized” for purposes of EMTALA.

EMTALA duties end when a patient is admitted

Once a patient has been admitted to the hospital, EMTALA’s duties ostensibly end – even if an identified emergency medical condition has not been stabilized. However, the individual must be admitted “in good faith” and with the intent to stabilize whatever emergency medical condition has been stabilized.[lxxviii] The “good faith” requirement is included within this definition to prevent unscrupulous hospitals from attempting to circumvent EMTALA’s requirements by admitting and then quickly transferring uninsured or underinsured patients.

Despite clear language to the contrary, one federal circuit has ruled that EMTALA’s stabilization requirements continue to apply even after patients have been admitted to the hospital. In Moses v. Providence Hosp. and Medical Centers [lxxix], the Sixth Circuit Court of Appeals held that “EMTALA requires a hospital to treat a patient with an emergency condition in such a way that, upon the patient’s release, no further deterioration of the condition is likely.” It rejected the CMS interpretation of admission ending a hospital’s EMTALA duties, stating “it is unreasonable to believe that ‘treatment as may be required to stabilize’ [required in EMTALA’s statutory language] could mean simply admitting the patient and nothing further.”[lxxx]. Therefore, in Kentucky, Michigan, Ohio, and Tennessee (the states comprising the Sixth Circuit), there still may be a duty to provide stabilizing treatment to patients even after the patients have been admitted. CMS subsequently acknowledged the Moses decision but continued to affirm its previous stance that an admitting hospital’s obligations under EMTALA end upon inpatient admission to that hospital.[lxxxi] Therefore, even though CMS appears to have no intention on imposing administrative penalties for EMTALA violations on inpatients, civil liability from lawsuits related to EMTALA violations during evaluation and treatment of inpatients may still exist in some jurisdictions.

Additionally, even the definition of when a patient has been “admitted” is sometimes confusing. EMTALA defines an “inpatient” as an individual who is admitted for purposes of receiving inpatient hospital services … with the expectation that he or she will remain at least overnight.”[lxxxii] Emergency department patients and patients being observed in the labor and delivery department – even if they remain overnight – are not considered “admitted” under EMTALA. Similarly, patients kept in a hospital under “observation” status may remain overnight in a hospital bed but are still not considered “admitted” for purposes of EMTALA. CMS clarified this issue in its 2009 Interpretive Guidelines stating that “placement in an observation status of an individual … does not terminate the EMTALA obligations of that hospital or a recipient.”[lxxxiii] Court opinions reinforce this determination.[lxxxiv]

EMTALA duties end when a patient refuses screening exam or stabilizing treatment

Patients have a right to refuse evaluation, treatment, and transfer. If a hospital offers to provide a patient with medical examination and/or stabilizing treatment or offers to transfer the patient to another medical facility but the patient refuses, the hospital has met its EMTALA obligations.[lxxxv] However, the statutory language makes it clear that the patient or someone acting on the patient’s behalf must be given the information necessary to make an informed decision about such a refusal, requiring that the hospital disclose the risks and benefits involved in the proposed evaluation, treatment, or transfer. The medical record must contain a description of the examination, treatment, or both if applicable, that was refused by or on behalf of the individual.[lxxxvi] In addition, if a patient refuses any stabilizing treatment mandated under EMTALA, the hospital is required to “take all reasonable steps” to obtain written refusal of such treatment.[lxxxvii]

An informed refusal of EMTALA screening should be considered equivalent to other informed refusals of care. Documentation of the refusal should ideally reflect that the patient or the patient’s representative has good decisionmaking capacity, should note what evaluation or treatment was refused, should describe what potential benefits could be expected by consenting to treatment, should also note what reasonable risks could be associated with refusing care, and should describe why the patient is refusing treatment. Simply documenting a risk that “you could die” is insufficient since it does not provide a patient with sufficient information regarding why the patient’s condition could be life-threatening. To illustrate the point, consider the difference in effectiveness between a sign stating “do not walk on the grass” and a sign stating “do not walk on the grass because there are landmines buried in this area.”

An informed refusal of EMTALA screening in a patient with lower abdominal pain and a positive pregnancy test who is refusing ultrasound of her abdomen might reflect the following:

You are refusing an ultrasound of your abdomen.

An ultrasound of your abdomen may be able to tell us if your pain is being caused by an ovarian cyst, ovarian torsion, infection, appendicitis, kidney stone, or other potentially dangerous etiology. In addition, the ultrasound may be able to tell us that your pregnancy is in your uterus rather than in one of your fallopian tubes (an ectopic pregnancy). Many of these problems could be medical emergencies.

By refusing the ultrasound, you are making it more difficult to determine what is causing your abdominal pain. If a potentially dangerous diagnosis is missed, it could result in many problems including (but not limited to) worsening pain, abdominal bleeding, abdominal infections, loss of fertility, need for emergency surgery, prolonged recovery, permanent disability, and even death.

By signing this form, you are acknowledging that you understand these risks and wish to refuse treatment.

Not all patients will agree to sign a form documenting refusal of care. In many instances, refusal of care occurs when patients disagree with a medical provider’s recommendations or when patients become upset with lengthy perceived wait times for evaluation and/or treatment. The resulting anger or resentment may create ill will toward medical providers and an unwillingness to abide by a medical provider’s requests. In other cases, patients may be wary of incurring liability by signing refusal of care forms. If a patient declines an EMTALA screening or stabilizing treatment but refuses to sign written refusal of care, the provider should thoroughly note the interaction in the patient’s chart and should also consider including the completed but unsigned refusal as part of the patient’s medical records. Witness signatures on the form noting that the patient refused to sign the form and any reasoning for the refusal would help to demonstrate that “all reasonable attempts” were made to procure the patient’s signature

EMTALA penalties

Civil Monetary Penalties Under EMTALA

Civil Monetary Penalties are imposed by the federal government for EMTALA violations. Section 1395dd(d) of EMTALA caps civil monetary penalties against hospitals for EMTALA noncompliance at $50,000 per violation.[lxxxviii] EMTALA also limits civil monetary penalties against hospitals with less than 100 beds to $25,000 per violation. Physicians are subject to civil monetary penalties of up to $50,000 for more specific EMTALA violations. Monetary penalties can be imposed if the physician knowingly misrepresents that benefits of transfer outweigh the risks of transfer on a transfer certification or if the physician misrepresents a patient’s condition “or other information.”[lxxxix] On-call physicians can also be subject to civil monetary penalties if they refuse or fail to come to the emergency department within a reasonable period of time after being requested by the emergency physician.[xc] No EMTALA penalties are imposed based simply on consultations with on-call physicians. If an on-call physician fails to come to the emergency department when requested and the hospital is forced to transfer the patient to another facility because the on-call physician is unavailable, EMTALA requires that the transferring hospital send to the receiving facility “the name and address of any on-call physician … who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment.”[xci] The purpose of this requirement is presumably so that the receiving facility may then report the physician to CMS.

In November 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (part of the Bipartisan Budget Act of 2015) which requires federal agencies to annually adjust their civil monetary penalties for inflation. In addition, the Act imposed a “catch up” provision to adjust the penalties for prior inflation. As a result, the maximum EMTALA civil monetary penalties for each violation increased from $50,000 to $104,826 in 2016 and will continue rising each year.[xcii] CMS often alleges several violations per incident (such as failure to screen, failure to stabilize, failure to appropriately transfer), which has the potential to compound monetary penalties. Additionally, CMS may now consider “mitigating” and “aggravating” circumstances in determining the amount of civil monetary penalties.[xciii] Any civil monetary penalty may be lessened if a hospital takes corrective action and self-reports a violation to CMS before another entity reports the violation to CMS. Civil monetary penalties for EMTALA violations may be increased for any of several aggravating factors including requests for payment information being made before an emergency medical condition was stabilized, presence of actual or potential patient harm from an incident, or a retrospective determination that an individual’s initial presentation constituted an “emergency medical condition” as defined in EMTALA. The Bitterman article noted one case in which CMS sought maximum penalties against a hospital for failing to provide an appropriate medical screening exam to a pregnant woman with possible pre-eclampsia because there was a potential risk for harm to the woman and unborn child.

Exclusion from Medicare for EMTALA violations

Although there are few reported instances of such penalty being imposed, violations of EMTALA may also result in termination from participation in the Medicare and other federal health care programs. Exclusion from participation in federal health care programs would financially ruin most hospitals and the mere threat of this penalty is often enough to gain large concessions from hospitals accused of wrongdoing. Physicians may also be subject to exclusion from Medicare for “gross and flagrant” or “repeated” EMTALA violations.[xciv] On-call physicians may be excluded from Medicare and state health care programs for failing to appear in a reasonable period of time when a request is made for assistance.[xcv] In either case, exclusion from participation in federal health programs would also financially ruin most practitioners since it would prevent the physician from billing the federal government for any medical services and would prevent the physician from practicing in any facility that participates in the Medicare program. Fortunately, there are no reports of such penalties being imposed on physicians.

Civil cases alleging EMTALA violations

In addition to penalties imposed by CMS, hospitals may also be liable for civil damages if a patient suffers damages due to an EMTALA violation.[xcvi] EMTALA does not provide potential plaintiffs with a right to sue individual physicians. In other words, physicians may be sued in court for medical malpractice, but they may not be sued in court for EMTALA violations.

Including an EMTALA violation in a lawsuit against a hospital may provide several advantages. An EMTALA claim provides another avenue of recourse against a hospital, and statutory violations may be easier to prove than medical negligence. An EMTALA claim involves a federal statute, so litigation over a federal statute allows a case to be filed in federal court. Some litigants may prefer federal courts over state courts. Federal courts in general have less of a case load than state courts and federal judges may therefore have more time to analyze pleadings. Federal judges must go through at nomination and vetting process while state court judges are usually elected by voters. Some people therefore consider federal judges to be “better” than state court judges. Transfer to a federal court may also affect the amount of recovery for plaintiffs. EMTALA allows an individual who suffers harm from an EMTALA violation to recover “those damages available for personal injury under the law of the State in which the hospital is located.” In states with state-imposed medical malpractice caps, because federal law pre-empts state law, courts may rule that the malpractice caps do not apply to damages related to federal EMTALA claims. Case law on this topic is still unsettled.[xcvii]

Key Points

• EMTALA was promulgated to create a right of examination and stabilizing treatment to individuals seeking emergency medical care.
• EMTALA does not create a right of ongoing treatment once it has been determined that an individual has no emergency medical condition or once an individual’s emergency medical condition has been stabilized.
• EMTALA applies not only to hospital emergency departments, but also to other areas of hospitals that provide care for emergency medical conditions on an urgent, nonappointment basis (including labor and delivery departments). EMTALA does not apply to individual physicians or to typical outpatient physician offices/clinics.
• Under EMTALA, individuals are entitled to a screening examination that is reasonably likely to determine whether the individual has an emergency medical condition. If no emergency medical condition is identified, EMTALA imposes no further duties on the medical provider or hospital.
• If an individual is determined to have an emergency medical condition, the hospital must provide stabilizing treatment within its capabilities.
• If a hospital lacks the capability to stabilize the emergency medical condition, it must transfer the patient to another facility that has the ability to provide stabilizing treatment.
• If an unstable patient requires transfer to another facility, an appropriate certification must be completed and the transfer must be “appropriate” as defined under EMTALA
• With few exceptions, hospitals that have “specialized capabilities” must accept a patient in transfer. Transfer of a patient with an unstabilized emergency medical condition cannot be refused because a patient lacks appropriate insurance, because a patient is outside of a hospital’s catchment area, because a different hospital provides similar services, or because of specialist preference. Hospitals and specialists have been cited and fined for failing to accept transfers based on these excuses.
• EMTALA does not apply when a patient is determined not to have an emergency medical condition, when that emergency medical condition has been stabilized, when the patient is admitted to the hospital (hospitalizing a patient in “observation” status does NOT satisfy this requirement), or when the patient refuses screening or stabilizing treatment.
• Civil monetary penalties for EMTALA violations were increased as part of the Bipartisan Budget Act of 2015 to keep up with inflation. Penalties for a single violation may now be in excess of $100,000 and will continue to increase annually. CMS does not have to prove harm to a patient to impose civil monetary penalties.
• EMTALA claims may be added to medical malpractice case as a means to transfer cases to federal court and possibly negate state medical malpractice caps.
• When in doubt, doing what is in the patient’s best interests is always a good rule of practice that will enhance patient care and that will minimize administrative and civil liability.

Many thanks to Robert Bitterman, MD JD for his input and expertise in reviewing this chapter.

References

[i] Schiff R, et al, Transfers to a Public Hospital, N Engl J Med 1986; 314:552-557
[ii] Friedman E, The Law That Changed Everything—and It Isn’t the One You Think. Hospitals & Health Networks Daily, April 5, 2011. Accessed April 17, 2018 https://www.hhnmag.com/articles/5010-the-law-that-changed-everything-and-it-isn-t-the-one-you-think
[iii] 933 F.2d 1037 (D.C. Cir. 1991)
[iv] 95 F.3d 349 (4th Cir.1996)
[v] 42 F.3d 851 (4th Cir. 1994)
[vi] Emergency Care: EMTALA Implementation and Enforcement Issues. GAO-01-747: Jun 22, 2001
[vii] Zuabi et al., Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General Patient Dumping Settlements, Western Journal of Emergency Medicine, Vol 17, No 3, 245-251 (May 2016)
[viii] Meyer, Harris, Why patients still need EMTALA, Modern Healthcare pp 16-19, March 28, 2016.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Terp S, et al., Individual Physician Penalties Resulting From Violation of Emergency Medical Treatment and Labor Act: A Review of Office of the Inspector General Patient Dumping Settlements, 2002-2015. Acad Emerg Med. 2017 Apr;24(4):442-446.
[xiii] 42 CFR 489.24(b)
[xiv] Id. “Comes to the emergency department means, with respect to an individual who is not a patient (as defined in this section), the individual –
(1) Has presented at a hospital’s dedicated emergency department, as defined in this section, and requests examination or treatment for a medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual’s appearance or behavior, that the individual needs examination or treatment for a medical condition;
(2) Has presented on hospital property, as defined in this section, other than the dedicated emergency department, and requests examination or treatment for what may be an emergency medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual’s appearance or behavior, that the individual needs emergency examination or treatment;
(3) Is in a ground or air ambulance owned and operated by the hospital for purposes of examination and treatment for a medical condition at a hospital’s dedicated emergency department, even if the ambulance is not on hospital grounds. However, an individual in an ambulance owned and operated by the hospital is not considered to have “come to the hospital’s emergency department” if –
(i) The ambulance is operated under communitywide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance; for example, to the closest appropriate facility. In this case, the individual is considered to have come to the emergency department of the hospital to which the individual is transported, at the time the individual is brought onto hospital property;
(ii) The ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance; or
(4) Is in a ground or air nonhospital-owned ambulance on hospital property for presentation for examination and treatment for a medical condition at a hospital’s dedicated emergency department. However, an individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital’s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. The hospital may direct the ambulance to another facility if it is in “diversionary status,” that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital’s diversion instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department.”
[xv] 42 U.S. Code § 1395dd(e)(1)
[xvi] 42 U.S. Code § 1395dd(e)(1)(B)
[xvii] 42 C.F.R. § 489.24(b)
[xviii] 42 U.S.C § 1395dd (e)(1)(B)
[xix] 42 U.S.C § 1395dd (e)(3)
[xx] 42 C.F.R. § 489.24(b)
[xxi] Id.
[xxii] 42 U.S. Code § 1395dd(c)(2), 42 CFR §489.24(e)
[xxiii] King v. Ahrens, 16 F.3d 265 (1994)
[xxiv] 68 Fed Reg. 53229
[xxv] 68 Fed Reg. 53230
[xxvi] CMS State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases. Part II. Revised 07/16/2010. [Can be downloaded at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107ap_v_emerg.pdf]
[xxvii] 68 Fed Reg. 53234
[xxviii] Civil Monetary Penalties and Affirmative Exclusions [https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp. Accessed May 19, 2018.]
[xxix]  42 CFR 489.24 (a)(1)(i)
[xxx] 42 §489.24(a)(1)(i).
[xxxi] Correa v. Hospital San Francisco, 69 F. 3d 1184 (1st Circuit 1995)
[xxxii] Baker v. Adventist Health, Inc., 260 F. 3d 987 (9th Circuit 2001). See also, Battle v. Memorial Hosp. at Gulfport, 228 F. 3d 544 (5th Circuit 2000).
[xxxiii] Byrne v. Cleveland Clinic, 684 F. Supp. 2d 641 (E.D. Pa. 2010)
[xxxiv] CMS Manual System, Pub. 100-07 State Operations Provider Certification. Part II – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases. Appendix V, Tag A-404 (now A-2404/C-2404)(2008). Available for download at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCLetter08-15.pdf
[xxxv] Civil Monetary Penalties and Affirmative Exclusions [https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp. Accessed May 15, 2018.]
[xxxvi] http://www.medlaw.com/handout.htm. Accessed May 14, 2018
[xxxvii] https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Obstetric-Practice/Hospital-Based-Triage-of-Obstetric-Patients. Accessed May 16, 2018.
[xxxviii] Ruhl C, et al., Content Validity Testing of the Maternal Fetal Triage Index. J Obstet Gynecol Neonatal Nurs. 2015 Nov-Dec;44(6):701-9.
[xxxix] Smithson D, et al., Implementing an obstetric triage acuity scale: interrater reliability and patient flow analysis, American Journal of Obstetrics and Gynecology , Volume 209 (4) Oct 1, 2013.
[xl] CMS State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases. Appendix V. Task 3 – Record Review. Revised 07/16/2010. Can be downloaded at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107ap_v_emerg.pdf
[xli] Marshall v. East Carroll Parish Hosp., 134 F.3d 319 (1998)
[xlii] 741 F.Supp. 1269 (E.D. Texas, 1990)
[xliii] 42 CFR 489.24(a)(2).
[xliv] . Cunningham v. Fredonia Regional Hosp., 98 F. 3d 1349 (10th Cir. 1996), Repp v. Anadarko Mun. Hosp., 43 F.3d 519 (10th Cir. 1994)
[xlv] Deberry v. Sherman Hosp. Ass’n, 769 F.Supp. 1030 (N.D.Ill.1991)
[xlvi] Byrne v. Cleveland Clinic, 684 F. Supp. 2d 641 (E.D. Pa. 2010)
[xlvii] Baber v. Hospital Corp., 977 F.2d 872 (4th Cir. 1992)
[xlviii] 42 U.S. Code § 1395dd(e)(1)
[xlix] 42 U.S. Code § 1395dd(e)(1)
[l] 42 U.S.C § 1395dd (e)(1)(B)
[li] 42 U.S.C § 1395dd (e)(3)
[lii] 780 F. Supp. 2d 84 (D. Me. 2010)
[liii] Barrios v. Sherman Hosp., No. 06C2853 (N.D. Ill. Dec. 15, 2006), Thompson v. St. Anne’s Hosp., 716 F. Supp. 8, (N.D.Ill.1989)
[liv] 42 U.S. Code § 1395dd(a)
[lv]  410 ILCS 70/1 et seq.
[lvi] 43 F.3d 523 (10th Cir. 1994)
[lvii] 91 F3d 1132 (8th Cir. 1996)
[lviii] 42 U.S. Code § 1395dd(b)(1)
[lix] 42 CFR 489.24 (b)
[lx] 42 USC 1395cc(a)(1)(I)(iii)
[lxi] Terp S, et al., Individual Physician Penalties Resulting From Violation of Emergency Medical Treatment and Labor Act: A Review of Office of the Inspector General Patient Dumping Settlements, 2002-2015. Acad Emerg Med. 2017 Apr;24(4):442-446.
[lxii] 42 CFR 489.24 (b)
[lxiii] 42 CFR 489.24(d)(1)
[lxiv] 42 CFR 489.24(e)(1)(ii)
[lxv] 42 USC 1395dd(d)(1)(B)
[lxvi] CFR §489.24(e)(1)(ii)(c)
[lxvii] 42 CFR §489.24(e)
[lxviii] Civil Monetary Penalties and Affirmative Exclusions [https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp. Accessed May 19, 2018.
[lxix] 42 CFR 489.24 (f)
[lxx] 42 CFR 489.24 (b)
[lxxi] Center for Medicaid and State Operations/Survey and Certification Group: Hospital Capacity – EMTALA, Ref: S&C-02-06, November 29, 2001
[lxxii] Id.
[lxxiii] 42 CFR 489.24 (f)
[lxxiv] 309 F.3d 680 (10th Cir., 2002)
[lxxv] Civil Monetary Penalties and Affirmative Exclusions [https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp. Accessed May 16, 2018.
[lxxvi] 42 CFR 489.20(m)
[lxxvii] 42 U.S. Code § 1395dd(b)(1)
[lxxviii] 42 CFR 489.24(d)(2)(i) “If a hospital has screened an individual under paragraph (a) of this section and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual.”
[lxxix] 561 F.3d 573 (6th Cir., 2009)
[lxxx] Id.
[lxxxi] 77 Fed Reg 5213-5217 (2012)
[lxxxii] 42 CFR 489.24 (b)
[lxxxiii] Center for Medicaid and State Operations/Survey and Certification Group – Inpatient Prospective Payment System (IPPS) 2009 Final Rule Revisions to Emergency Medical Treatment and Labor Act (EMTALA) Regulations, Ref: S&C-09-26. March 6, 2009. Available for download at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/SCLetter09-26.pdf
[lxxxiv] See, e.g., Dicioccio v. Chung, 232 F.Supp.3d 681 (E.D. Pa., 2017) (“CMS regulations and guidance make clear that admission for observation does not end a hospital’s EMTALA obligations”)
[lxxxv] 42 U.S. Code 1395dd (b)(2)-(3)
[lxxxvi] 42 CFR 489.24(d)(3)
[lxxxvii] 42 U.S. Code § 1395dd (b)(2)-(3)
[lxxxviii] 42 U.S. Code § 1395dd (d)
[lxxxix] Id.
[xc] 42 U.S. Code § 1395dd (d)(D)(1)(c)
[xci] 42 CFR § 489.24(e)(2)(iii)
[xcii] Bitterman R, Feds Increase EMTALA Penalties against Physicians and Hospitals, EP Monthly, October 17, 2017
[xciii] 42 CFR 1003.520
[xciv] 42 USC § 1395dd(d)(1)(B)(ii)
[xcv] 42 USC § 1395dd(d)(1)(C)
[xcvi] 42 U.S. Code § 1395dd (d)(2). “Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.”
[xcvii] Do State Damage Caps Apply to EMTALA? ED Legal Letter, October 2017