Emergency Medical Treatment and Active Labor Act

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Emergency Medical Treatment and Active Labor Act

Legislation

By: United States Congress

Date: 1986

Source: United States Congress. "Emergency Medical Treatment and Active Labor Act." United States Code, 1986.

About the Author: The United States Congress enacted the Emergency Medical Treatment and Active Labor Act in 1986.

INTRODUCTION

Under the Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals are required to treat patients who are having a medical emergency, including childbirth, regardless of whether or not they have the ability to pay for the services. EMTALA outlines both patient rights and the responsibilities of medical personnel and facilities when such an emergency arises. The act is designed to ensure that hospitals do not dump patients—transfer those who are unable to pay for medical treatment to public hospitals, or to facilities known to serve lower-income patients covered by medical insurance. EMTALA governs when and how patients may be transferred from one hospital to another, and when or how a patient may be refused treatment.

EMTALA is part of the Consolidated Omnibus Budget Reconciliation Act (COBRA), which encompasses several other laws, including the regulations concerning medical insurance benefits after employment termination. It applies to all hospitals that agree to receive reimbursements for treating Medicare patients (Medicare provides medical insurance for people over age 65, and for others with certain disabilities and conditions). Most hospitals in the United States receive such payments; exceptions include many military hospitals and the Shriners Hospitals for Crippled Children, which run entirely from donations. At qualifying hospitals, EMTALA applies to all patients, not just those covered by the Medicare program.

The Department of Health and Human Services (HHS) regional offices investigate alleged EMTALA violations. If violations are confirmed, the HHS Office of Inspector General (OIG) may issue civil monetary fines without criminal implications. Maximum fines are $25,000 for hospitals with fewer than 100 beds, and up to $50,000 for larger facilities. For severe violations the OIG may also revoke a hospital's Medicare reimbursement agreements—a harsher penalty than a monetary fine, as most hospitals rely heavily on such payments. The OIG has investigated approximately 200 EMTALA violations since the act's passage, but reimbursement agreements are rarely terminated. Citations are typically given for not providing appropriate medical screening exams, not providing stabilizing treatments, not keeping proper patient logs, and inappropriate transfer of patients. Although physicians can be held liable for violating EMTALA regulations, violations are typically settled through a hospital, who may seek reimbursement of penalties from individual doctors who work in the hospital.

PRIMARY SOURCE

§†1395dd. Examination and treatment for emergency medical conditions and women in labor

  1. Medical screening requirement

    In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

  2. Necessary stabilizing treatment for emergency medical conditions and labor
    1. In general

      If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—

      1. within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
      2. for transfer of the individual to another medical facility in accordance with subsection (c) of this section.
    2. Refusal to consent to treatment

      A hospital is deemed to meet the requirement of paragraph (1)(A) with respect to an individual if the hospital offers the individual the further medical examination and treatment described in that paragraph and informs the individual (or a person acting on the individual's behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individual's behalf) refuses to consent to the examination and treatment. The hospital shall take all reasonable steps to secure the individual's (or person's) written informed consent to refuse such examination and treatment.

    3. Refusal to consent to transfer

      A hospital is deemed to meet the requirement of paragraph (1) with respect to an individual if the hospital offers to transfer the individual to another medical facility in accordance with subsection (c) of this section and informs the individual (or a person acting on the individual's behalf) of the risks and benefits to the individual of such transfer, but the individual (or a person acting on the individual's behalf) refuses to consent to the transfer. The hospital shall take all reasonable steps to secure the individual's (or person's) written informed consent to refuse such transfer.

  3. Restricting transfers until individual stabilized
    1. Rule

      If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless—

        1. the individual (or a legally responsible person acting on the individual's behalf) after being informed of the hospital's obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility,
        2. a physician (within the meaning of section 1395x (r)(1) of this title) has signed a certification that†[1] based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or
        3. if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause after a physician (as defined in section 1395x (r)(1) of this title), in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and
      1. the transfer is an appropriate transfer (within the meaning of paragraph (2) to that facility.

        A certification described in clause (ii) or (iii) of sub-paragraph (A) shall include a summary of the risks and benefits upon which the certification is based.

    2. Appropriate transfer

      An appropriate transfer to a medical facility is a transfer—

      1. in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health and, in the case of a woman in labor, the health of the unborn child;
      2. in which the receiving facility—
        1. has available space and qualified personnel for the treatment of the individual, and
        2. has agreed to accept transfer of the individual and to provide appropriate medical treatment;
      3. in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual's emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
      4. in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and
      5. which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred.…

[4](e)Definitions

In this section:

  1. The term "emergency medical condition" means—
    1. 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—
      1. 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,
      2. serious impairment to bodily functions, or
      3. serious dysfunction of any bodily organ or part; or
    2. with respect to a pregnant woman who is having contractions—
      1. that there is inadequate time to effect a safe transfer to another hospital before delivery, or
      2. that transfer may pose a threat to the health or safety of the woman or the unborn child.
  2. The term "participating hospital" means a hospital that has entered into a provider agreement under section 1395cc of this title.
    1. The term "to stabilize" means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, 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, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta).
    2. The term "stabilized" means, with respect to an emergency medical condition described in paragraph (1)(A), that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), that the woman has delivered (including the placenta).
  3. The term "transfer" means the movement (including the discharge) of an individual outside a hospital's facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital, but does not include such a movement of an individual who
    1. has been declared dead, or
    2. leaves the facility without the permission of any such person.
  4. The term "hospital" includes a critical access hospital (as defined in section 1395x (mm)(1) of this title).

Preemption

The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.

Nondiscrimination

A participating hospital that has specialized capabilities or facilities (such as burn units, shock–trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.

No delay in examination or treatment

A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) of this section or further medical examination and treatment required under subsection (b) of this section in order to inquire about the individual's method of payment or insurance status.

Whistleblower protections

A participating hospital may not penalize or take adverse action against a qualified medical person described in subsection (c)(1)(A)(iii) of this section or a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section.

SIGNIFICANCE

Many in the medical community believe that EMTALA enforcement and implementation increases costs and crowds emergency rooms, decreasing the efficiency of hospitals. To address this concern, the 2001 Consolidated Appropriations Act called for the United States General Accounting Office (GAO) to analyze EMTALA's effect on hospitals and physicians working in emergency units.

The analysis found that demand for nonurgent hospital services had indeed grown, but it was unclear whether this was a result of enforcing EMTALA or the growth of the uninsured population. Some hospitals also claimed that fewer physicians were willing to join their staffs because of the workload required to enforce EMTALA. For their part, the GAO found that technology allowed doctors to perform more procedures in clinics, outside of hospitals, which might explain why fewer specialists worked in hospitals. Hospital and physician representatives said that EMTALA has helped ensure better access to emergency services and less patient dumping; some hospitals, however, said they did not know the full extent of their obligations under EMTALA.

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 created a technical advisory group to monitor changes in EMTALA implementation. Health and Human Services (HHS) also simplified EMTALA enforcement, including the development of procedures and standards for more effective investigation and resolution of complaints.

FURTHER RESOURCES

Books

Bitterman, Robert A. Providing Emergency Care under Federal Law: EMTALA. Dallas, TX: American College of Emergency Physicians, 2000.

Gatewood, Joseph, Loren Johnson, and Ellen Arrington. A Practical Guide to EMTALA Compliance. Marblehead, MA: HCPro, Inc., 2004.

Williams, Abigail R. Outpatient department EMTALA handbook 2002. Gaithersburg, MD: Aspen Law & Business, 2002.

Periodicals

General Accounting Office. "Emergency Care: EMTALA Implementation and Enforcement Issues: Report to Congressional Committees." Washington, DC: United States General Accounting Office. June 2001.

Web sites

United States Department of Human Health and Services. "Centers for Medicare and Medicaid Services: EMTALA." April 17, 2006. <http://www.cms.hhs.gov/EMTALA/01_overview.asp> (accessed May 24, 2006).

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Emergency Medical Treatment and Active Labor Act

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