The University of New Mexico Office of University Counsel

Emergency Medical Emergency Medical Treatment and Labor Act Treatment and Labor Act

(EMTALA)(EMTALA)July 27, 2006July 27, 2006

Vicki J. Hunt, JD, MPHVicki J. Hunt, JD, MPHAssociate University CounselAssociate University Counsel

Emergency Medical Treatment and Labor Act (“EMTALA”)• Applies to Medicare participating hospitals with Applies to Medicare participating hospitals with

emergency departmentsemergency departments• Purpose to prevent hospitals from rejecting, Purpose to prevent hospitals from rejecting,

refusing to treat, or transferring individuals to refusing to treat, or transferring individuals to other hospitals based on lack of ability to pay or other hospitals based on lack of ability to pay or insurance status (i.e. Medicare or Medicaid)insurance status (i.e. Medicare or Medicaid)

• Regulates when and how individual may be Regulates when and how individual may be (1) refused treatment, or (2) transferred from one (1) refused treatment, or (2) transferred from one hospital to another when they have “emergency hospital to another when they have “emergency medical condition” that is not “stabilized”medical condition” that is not “stabilized”

When do Hospital’s obligations under EMTALA arise?• Two prongs to trigger EMTALA:Two prongs to trigger EMTALA:

• Individual “comes to the hospital’s Individual “comes to the hospital’s emergency department (ED); andemergency department (ED); and

• Requests examination or treatment for a Requests examination or treatment for a “medical condition”“medical condition”

What are Hospital’s obligations under EMTALA?

• Two duties arise if EMTALA is triggered:Two duties arise if EMTALA is triggered:• Duty of hospital to provide “appropriate Duty of hospital to provide “appropriate

medical screening examination” (MSE) medical screening examination” (MSE) “within capability of hospital’s ED”; and“within capability of hospital’s ED”; and

• If patient determined to have “emergency If patient determined to have “emergency medical condition” (EMC), duty to medical condition” (EMC), duty to provide “necessary stabilizing treatment” provide “necessary stabilizing treatment” or provide “appropriate transfer” to or provide “appropriate transfer” to another hospitalanother hospital

Important Definitions:

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

More Definitions:• ““Comes to Hospital’s ED” (cont’d) Comes to Hospital’s ED” (cont’d)

• Individual Individual hashas “come to hospital’s ED” if: “come to hospital’s ED” if:• in hospital “owned/operated” ambulance in hospital “owned/operated” ambulance

on or off hospital property on or off hospital property • in non-hospital “owned/operated” in non-hospital “owned/operated”

ambulance on hospital propertyambulance on hospital property• in non-hospital “owned/operated” in non-hospital “owned/operated”

ambulance that arrives on hospital ambulance that arrives on hospital property after hospital in “diversionary property after hospital in “diversionary status” denies access status” denies access

More Definitions:

• ““Comes to Hospital’s ED” (cont’d)Comes to Hospital’s ED” (cont’d)• Individual Individual hashas notnot “come to hospital’s “come to hospital’s

ED” if:ED” if:• in hospital “owned/operated” in hospital “owned/operated”

ambulance directed to another hospital ambulance directed to another hospital by communitywide EMS protocolby communitywide EMS protocol

• in non-hospital “owned/operated” in non-hospital “owned/operated” ambulance not on hospital property, ambulance not on hospital property, even if en route calls made to hospital even if en route calls made to hospital ((untiluntil arrives on hospital property) arrives on hospital property)

More Definitions:• ““Dedicated Emergency Department” (DED) means Dedicated Emergency Department” (DED) means

any department or facility of hospital thatany department or facility of hospital that

(1)(1) is licensed by State as ED; is licensed by State as ED;

(2) held out to public as providing treatment (2) held out to public as providing treatment

for emergency medical conditions; orfor emergency medical conditions; or

(3) 1/3 of visits in preceding calendar year (3) 1/3 of visits in preceding calendar year

for treatment of emergency conditions on for treatment of emergency conditions on

urgent basis without scheduledurgent basis without scheduled

appointment.appointment.

More Definitions:• ““Request for examination or treatment of medical Request for examination or treatment of medical

condition” means a request made by the individual condition” means a request made by the individual or on individual’s behalf or, in absence of a or on individual’s behalf or, in absence of a request, one will be considered to exist if prudent request, one will be considered to exist if prudent layperson observer would believe, based on layperson observer would believe, based on individual’s appearance or behavior, that individual’s appearance or behavior, that individual needs examination or treatment for individual needs examination or treatment for medical conditionmedical condition• Note: “Medical condition” does not need to be Note: “Medical condition” does not need to be

“emergency medical condition”; hospital “emergency medical condition”; hospital obligated to conduct “appropriate” MSE to obligated to conduct “appropriate” MSE to determine if EMC exists and, if so, to provide determine if EMC exists and, if so, to provide further examination and treatment of EMCfurther examination and treatment of EMC

More Definitions:

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

More Definitions:

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

More Definitions:

• ““Emergency Medical Condition” (EMC) means a Emergency Medical Condition” (EMC) means a medical condition manifested by acute symptoms medical condition manifested by acute symptoms of sufficient severity (including severe pain) such of sufficient severity (including severe pain) such that the absence of immediate medical attention that the absence of immediate medical attention could reasonably be expected to result in:could reasonably be expected to result in:• placing health of individual (or of pregnant placing health of individual (or of pregnant

woman and unborn child) in serious jeopardy; woman and unborn child) in serious jeopardy; • serious impairment to bodily functions; orserious impairment to bodily functions; or• serious dysfunction of any bodily organ or part.serious dysfunction of any bodily organ or part.

More Definitions:

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

More Definitions:

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

More Definitions:• ““Necessary stabilizing treatment” of EMC Necessary stabilizing treatment” of EMC

means further medical examination and means further medical examination and treatment as required to treatment as required to stabilizestabilize EMC, EMC, within capabilities of staff and facilities within capabilities of staff and facilities available available

• To “stabilize” an EMC means to provide To “stabilize” an EMC means to provide such medical treatment of EMC necessary to such medical treatment of EMC necessary to assure, within reasonable medical assure, within reasonable medical probability, that no material deterioration of probability, that no material deterioration of the condition is likely to result from or occur the condition is likely to result from or occur during transfer of individual (for pregnant during transfer of individual (for pregnant woman, delivery of child and placenta)woman, delivery of child and placenta)

More Definitions:

• ““Stabilized emergency psychiatric condition Stabilized emergency psychiatric condition for transfer” means when individual is for transfer” means when individual is protected and prevented from injuring or protected and prevented from injuring or harming self or others. harming self or others.

• ““Stabilized emergency psychiatric condition Stabilized emergency psychiatric condition for discharge” means when individual is no for discharge” means when individual is no longer threat or danger to self or otherslonger threat or danger to self or others

More Definitions:

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

More Definitions:

• ““Appropriate transfer” – 4 requirements:Appropriate transfer” – 4 requirements:

(1) Transferring hospital (TH) provides (1) Transferring hospital (TH) provides treatment of individual’s EMC within treatment of individual’s EMC within its capabilities and capacity that its capabilities and capacity that minimizes risks to individual’s health; minimizes risks to individual’s health; ANDAND

(2)(2) Receiving hospital (RH) accepts Receiving hospital (RH) accepts transfer and has capabilities and transfer and has capabilities and capacity to treat individual’s EMC; capacity to treat individual’s EMC; ANDAND

More Definitions:

(3)(3) TH sends to RH copies of all records TH sends to RH copies of all records related to patient’s EMC available at related to patient’s EMC available at time of transfer, time of transfer, ANDAND provides written provides written consent from patient or patient’s consent from patient or patient’s representative representative OR OR certification from certification from physician and name and address of any physician and name and address of any TH on-call physician who refused or TH on-call physician who refused or failed to provide necessary stabilizing failed to provide necessary stabilizing treatment of patient’s EMC; treatment of patient’s EMC; ANDAND

(4)(4) Transfer effectuated via qualified Transfer effectuated via qualified personnel and transportation equipment.personnel and transportation equipment.

More Definitions:• ““Appropriate transfer” of patient with EMC Appropriate transfer” of patient with EMC

that that hashas notnot been “stabilized” can only be been “stabilized” can only be made if all above four requirements met made if all above four requirements met ANDAND, , as to requirement (3):as to requirement (3):• Individual (or legally responsible person) Individual (or legally responsible person)

requests transfer in writing, after being requests transfer in writing, after being informed of TH’s obligations and risks of informed of TH’s obligations and risks of transfer, and acknowledging reasons for transfer, and acknowledging reasons for request and awareness of risks and request and awareness of risks and benefits of transfer; benefits of transfer; OROR

More Definitions:• Certification signed by physician at TH Certification signed by physician at TH

that medical benefits of transfer to RH that medical benefits of transfer to RH for treatment outweigh risks of transfer for treatment outweigh risks of transfer (must contain summary of risks and (must contain summary of risks and benefits upon which certificate based); benefits upon which certificate based); OROR

• If physician not physically present in If physician not physically present in TH’s ED, a certificate signed by TH’s ED, a certificate signed by “qualified medical person” after “qualified medical person” after consulting with physician who agrees and consulting with physician who agrees and subsequently countersigns certification.subsequently countersigns certification.

More Definitions:• ““Specialized capabilities” means that Specialized capabilities” means that

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

More Definitions:• ““Capacity” to render care is not merely Capacity” to render care is not merely

reflected by the number of persons occupying a reflected by the number of persons occupying a specialized unit, the number of staff on duty, or specialized unit, the number of staff on duty, or the amount of equipment on the hospital’s the amount of equipment on the hospital’s premises, but also includes whatever a hospital premises, but also includes whatever a hospital customarily does to accommodate patients in customarily does to accommodate patients in excess of its occupancy limits. Thus, if a excess of its occupancy limits. Thus, if a hospital customarily accommodates patients in hospital customarily accommodates patients in excess of its occupancy limits by whatever excess of its occupancy limits by whatever means (i.e. moving patients to other units, means (i.e. moving patients to other units, calling in additional staff, borrowing equipment calling in additional staff, borrowing equipment from other facilities) it has demonstrated the from other facilities) it has demonstrated the ability to provide services to patients in excess ability to provide services to patients in excess of its occupancy limits.of its occupancy limits.

No Delays in Conducting MSE or Treatment of EMC

• Delays in conducting MSE or providing Delays in conducting MSE or providing treatment of EMC treatment of EMC prohibitedprohibited for purposes of for purposes of routine registration, questions regarding routine registration, questions regarding payment source or insurance status, seeking payment source or insurance status, seeking authorizations from third-party payers, authorizations from third-party payers, obtaining individual’s medical history from obtaining individual’s medical history from health plan or PCP, obtaining parental consent health plan or PCP, obtaining parental consent for minors, etc. for minors, etc.

• Activities are permissible if Activities are permissible if simultaneously simultaneously conducted and conducted and do not delaydo not delay MSE or treatment MSE or treatment of EMC.of EMC.

EMTALA does not apply:• If MSE reveals no EMCIf MSE reveals no EMC• If individual with EMC leaves ED before If individual with EMC leaves ED before

treatment treatment unlessunless individual leaves at individual leaves at “suggestion” of hospital personnel or “suggestion” of hospital personnel or hospital operating beyond capacity and did hospital operating beyond capacity and did not attempt to provide “appropriate not attempt to provide “appropriate transfer” of individual to another hospital transfer” of individual to another hospital

• If individual refuses treatment for EMC If individual refuses treatment for EMC after informed of risks/benefits of further after informed of risks/benefits of further examination and treatmentexamination and treatment

EMTALA does not apply:

• If EMC of individual “stabilized” before transfer If EMC of individual “stabilized” before transfer or dischargeor discharge

• If individual with “unstabilized” EMC refuses If individual with “unstabilized” EMC refuses transfer to another hospital after informed of transfer to another hospital after informed of risks/benefits of transferrisks/benefits of transfer

• If individual who comes to ED is admitted to If individual who comes to ED is admitted to hospital for inpatient services, whether or not hospital for inpatient services, whether or not patient has an EMC (inpatients subject to patient has an EMC (inpatients subject to standards and protections of Medicare Conditions standards and protections of Medicare Conditions of Participation) of Participation)

• If individual “boarded” in ED awaiting inpatient If individual “boarded” in ED awaiting inpatient bed if “good faith” intent to admit to hospital bed if “good faith” intent to admit to hospital (even if improves and discharged before bed (even if improves and discharged before bed available)available)

EMTALA does apply:

• To individual who “comes to hospital’s ED” and To individual who “comes to hospital’s ED” and “requests examination or treatment of medical “requests examination or treatment of medical condition” (as defined above)condition” (as defined above)

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

EMTALA does apply:• To transfer of individual from hospital that lacks To transfer of individual from hospital that lacks

“specialized capabilities” or “capacity” to render “specialized capabilities” or “capacity” to render “necessary stabilizing treatment” of EMC to “necessary stabilizing treatment” of EMC to hospital with “specialized capabilities” or hospital with “specialized capabilities” or “capacity” to render “necessary stabilizing “capacity” to render “necessary stabilizing treatment” of EMC treatment” of EMC

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

Some Additional Obligations:

• Adopt and enforce policies and procedures to Adopt and enforce policies and procedures to comply with requirements of EMTALA;comply with requirements of EMTALA;

• Post signs in DED specifying rights of individuals Post signs in DED specifying rights of individuals with EMC’s and women in labor who come to with EMC’s and women in labor who come to DED for health care services;DED for health care services;

• Maintain central log of individuals who come to Maintain central log of individuals who come to DED seeking treatment and indicate disposition DED seeking treatment and indicate disposition (refused treatment; denied treatment; were treated, (refused treatment; denied treatment; were treated, admitted, stabilized, and/or transferred or were admitted, stabilized, and/or transferred or were discharged;discharged;

Additional Obligations (cont’d):

• Maintain list of on-call providers who are Maintain list of on-call providers who are available to provide further evaluation and available to provide further evaluation and treatment necessary to stabilize an treatment necessary to stabilize an individuals EMC;individuals EMC;

• Maintain medical and other records related to Maintain medical and other records related to individuals transferred to and from hospital individuals transferred to and from hospital for period of 5 years from date of transfer; for period of 5 years from date of transfer; andand

Additional Obligations (cont’d):

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

QUESTIONS?

Direct by telephone call or email to Vicki J. Hunt

Associate University Counsel 272-8668

vhunt@salud.unm.edu