Transferring Patients: EMTALA Rule to Apply to Those Needing More Care
Transferring Patients: EMTALA Rule to Apply to Those Needing More Care
Change would determine whether hospitals with specialized services must accept appropriate transfers
By Robert A. Bitterman, MD JD FACEP, Contributing Editor
In April of this year the Centers for Medicare and Medicaid Services (CMS) proposed changes to the Emergency Medical Treatment and Active Labor Act (EMTALA) regulations that would once again significantly impact EMTALA's patient transfer rules.1
Historical Perspective
Back in 2003, in its EMTALA "final rule," CMS took the position that a hospital's obligation under EMTALA ended when that hospital admitted an individual with an unstable emergency medical condition, in good faith, as an inpatient to that hospital.
CMS acknowledged that other patient safeguards protected inpatients, such as the Medicare conditions of participation and State malpractice laws, but many questions remained regarding the applicability of the EMTALA requirements to inpatients.
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Proposed Changes to EMTALA CMS's proposed EMTALA changes also would alter the physician on-call requirements. Most notably, CMS would allow "community call" programs to be established by groups of hospitals in self-designated referral areas to help address the shortage of on-call specialists serving on hospital ED call panels. A community system could be set up to address a specific medical service, such as hand surgery, and/or a specific time frame, such as just on the weekends. The involved hospitals would need to establish a formal written plan, but no advanced approval from CMS would be required. Each community program would need to, however, meet a list of minimum criteria provided by CMS, and each hospital in the program would still be required to medically screen, stabilize, and arrange an appropriate transfer when sending selected patients to the "community call" facility. The on-call changes will be covered in a future ED Legal Letter article. |
One question, in particular, persisted. In the 2003 final rule, CMS did not directly address the question of whether EMTALA's "specialized care" transfer acceptance requirements applied to inpatients.2
Wording of Patient Transfer Law. This transfer acceptance section of the law is referred to as the "non-discrimination" clause or "section (g)" of the law and it states that:
"A Medicare 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 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."3
This is broad language and does not specify whether hospitals with specialized services must accept appropriate transfers just from the emergency departments of other hospitals, or whether they must also accept appropriate inpatient transfers from other hospitals.
Many attorneys and hospitals (particularly tertiary/academic medical centers) believe that since EMTALA ends once the patient is admitted, no other hospital has any EMTALA obligations to that patient.
Others, including this writer, believe that the non-discrimination section imposes an independent duty upon accepting hospitals, and that their duty to accept transfers is not derivative or dependent upon the EMTALA duties of the other hospital. In other words, just because EMTALA ends for one hospital when it admits the patient does not mean the law does not apply to a different hospital when it is asked to accept an appropriate transfer of a patient who needs further emergency care.
No Differentiation of In-patients vs. ED Patients. The language of section (g) does not differentiate inpatients from ED patients, nor, incidentally, does it differentiate stable patients from unstable patients.
Section (g) should be interpreted to mean that if the patient has an emergency medical condition (EMC) that the current hospital can't manage, then a receiving hospital with the capability and capacity to care for the EMC must accept the patient in transfer, regardless of the location of the patient in the sending hospital and regardless of whether the patient is currently stable or unstable.
To interpret the law otherwise would lead to the absurd behavior of physicians and hospitals refusing to admit patients from the ED if a transfer seemed potentially indicated, or accepting hospitals refusing to accept critically ill or injured inpatients because of their insurance status. They also might refuse to treat major trauma patients from small town EDs because a patient was temporarily "stable" under the law, but clearly would deteriorate or die if he or she was not transferred in a timely manner to a facility that was capable of managing the patient's emergent injuries.
Such behavior already occurs regularly with psychiatric patients. Hospitals with inpatient psychiatric facilities and capabilities routinely refuse to accept suicidal or overtly psychotic patients in transfer (patients who clearly meet EMTALA's legal definition of an EMC) because of insurance reasons, claiming that they do not have to accept stable patients in transfer. (Hospitals can legally stabilize psychiatric patients with EMCs, particularly patients with suicidal ideation or intent, by preventing them from harming themselves or others via restraints, pharmacological agents, or seclusion even when they are totally incapable of treating their suicidal ideation.)
Referral Hospitals and Patient Acceptance. Additionally, remember that the non-discrimination section was not part of EMTALA originally. It was later added as an amendment because referral hospitals were refusing to accept patients in transfer from other hospitals because of their insurance status and the patients were dying in the ED and dying in the inpatient settings. Congress' intent when it passed section (g) was to prohibit our more capable hospitals from refusing for economic reasons transfers of patients with emergency conditions that the original hospital couldn't handle. Hence the title of the section: "non-discrimination."
The plain language of the non-discrimination section does not condition the acceptance of such patients on their location in the transferring hospital, whether their EMC is stable or unstable at the time of transfer, whether they entered the hospital via the ED, or whether the law still applies to the transferring hospital at that time the transfer is medically necessary.
Unfortunately, patients once again are at risk of death, just like before EMTALA was passed, because referral hospitals are now refusing transfers of individuals with emergency conditions on account of their insurance status "because EMTALA ended upon admission." The issue is certain to be litigated, as unquestionably inpatients with emergencies that their hospital can't handle will suffer morbidity and mortality when referral hospitals refuse to accept them in transfer and treat the emergency. To my knowledge, however, the courts have not yet addressed this issue in civil cases brought under EMTALA.
CMS and the EMTALA Technical Advisory Group
CMS Enforcement. CMS presently only enforces the transfer acceptance section against hospitals that refuse medically indicated transfers from an ED, not if they refuse transfers from the inpatient setting. However, that may be about to change.
Recently, an EMTALA Technical Advisory Group (TAG), established by Congress through the Medicare Prescription Drug, Improvement, and Modernization Act to review the EMTALA regulations and advise CMS on their application to hospitals and physicians, recommended that CMS finally answer the question of whether section (g) applies to inpatients.4
The TAG expressly asked CMS to address the situation of an individual who:
1) presents to a hospital that has a dedicated emergency department and is determined to have an unstabilized emergency medical condition;
2) is admitted to the hospital as an inpatient; and
3) is subsequently determined by the hospital to have an emergency medical condition (EMC) that needs stabilizing and that requires specialized care only available at another hospital.
CMS Response: EMTALA Obligations of Other Hospital's Intact. CMS responded by first stating that EMTALA's section (g) does indeed require hospitals to accept appropriate transfers regardless of whether the patient is in the ED or the inpatient setting. It agrees that once the individual is admitted, admission only impacts on the EMTALA obligation of the hospital where the individual first presented, not the EMTALA obligations of other hospitals.1
However, it qualified its interpretation to apply only to inpatients who were originally EMTALA patients determined to have an unstabilized EMC and that after admission the hospital subsequently determines that stabilizing the patient's EMC requires specialized care only available at another hospital.1
Therefore, the elements of CMS's new proposed requirement that hospitals must accept appropriate transfers of inpatients include the following:
1. The individual must have presented to the hospital under EMTALA;
2. The hospital must determine that the individual has an EMC that is unstabilized;
3. The individual must be admitted to the hospital;
4. The individual's EMC must have remained unstable since the time of admission;
5. The hospital must be unable to stabilize the EMC; and
6. The receiving facility has the capacity and capability to treat the patient's EMC.
Caveats to the Proposed Requirements. There are a number of sticky caveats to CMS's criteria. First, this does not mean the patient must have initially presented to the hospital's dedicated emergency department. EMTALA attaches to patients presenting to the hospital in other ways, such as to labor and delivery or psychiatric intake centers; to patients presenting "on hospital property" with what appears to be an emergency condition; and to patients entering a hospital via owned and operated ambulance or helicopter.
Second, this proposed rule excludes patients who were electively admitted or directly admitted to the hospital and who subsequently develop an emergency condition while in the hospital that the hospital can't stabilize. For example, assume a person was directly admitted to a hospital cardiac unit from a physician's office with atrial fibrillation. This patient is anticoagulated, bumps his head, and sustains an expanding epidural hematoma that requires immediate neurosurgical intervention. The hospital has no neurosurgeon on staff, so it attempts to transfer the patient to a hospital that does have neurosurgical services. Since the patient didn't "present to the hospital under EMTALA," the accepting facility has no legal duty under EMTALA to accept the patient in transfer. If it so chooses, it can accept the insured patient and reject the uninsured patient with no legal ramifications under the law.
Third, it also excludes any patient who enjoys a period of stability after admission to the hospital but who subsequently becomes unstable again, even if the hospital is no longer capable of stabilizing the patient and needs to transfer the patient to a higher level facility. One example of this issue is the trauma case cited above. However, there are numerous medical, surgical, and traumatic scenarios in which patients with EMCs are stable when admitted but may quickly become unstable and require transfer to another more capable hospital. For example, a child with a closed head injury but a negative initial CT scan who is admitted to a hospital that does not have a neurosurgeon who later decompensates. Another possibility would be a patient with uncontrolled pain from a 5 mm obstructing ureter stone that is expected pass spontaneously with time who is admitted to an internist in a hospital without urology coverage. This patient might later develop an infection behind the obstruction and need acute urological intervention. Hospitals will stop admitting these type of patients in the first place if they can't get them transferred later should the patient's condition deteriorate.
Provider Input Sought by CMS Before It Issues a Final Rule
CMS recognizes some of the problematic issues with its proposed expanded interpretation of the transfer acceptance mandate of EMTALA. It is, therefore, seeking public comments on its proposed new regulation. It is seeking input about whether, with respect to the EMTALA obligation on the hospital with specialized capabilities, it should or should not matter if an individual who currently has an unstabilized emergency medical condition (which is beyond the capability of the admitting hospital):
1) remained unstable after coming to the hospital emergency department or;
2) subsequently had a period of stability after coming to the hospital emergency department.1
Conclusion/Comments
However, it shouldn't matter how the patient presented to the hospital, where the patient is located in the hospital, or whether the patient is unstable or temporarily stable at the time of transfer. If the patient has an EMC, and the hospital is unable to treat that emergency condition and it is medically indicated that the patient be transferred to another hospital to treat the EMC, then EMTALA's non-discrimination section should require the receiving hospital to accept the patient in transfer whenever it is capable of treating the emergency.5,6
Section (g) uses the word "appropriate" transfer in its ordinary meaning sense; it is not used in any sense defined by the statute, as "an appropriate transfer" is for the transfer of unstable patients. Therefore, it should mean, as Congress intended, that higher level facilities should accept medically indicated transfers of patients with emergency conditions when they can do so, and on a non-discriminatory basis.
Any other interpretation will lead to warped practices by hospitals and physicians to game the system, substantial confusion over which patients are covered by EMTALA, disparate and discriminatory treatment of patients with the same emergency condition depending upon how they happened to enter the hospital, and still more regulatory and civil grief and liability for hospitals under the law.
References
1. Centers for Medicare & Medicaid Services (CMS) Proposed Changes to the Hospital Inpatient Prospective Payment Systems. Included in the 1,205-page document are a number of proposed changes to EMTALA. The document is available at: http://edocket.access.gpo.gov/2008/pdf/08-1135.pdf. Accessed on 5/9/08.
2. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003); 42 CFR 489.24. The EMTALA regulations effective Nov. 10, 2003. The EMTALA rules can be found though the Federal Register Online GPO Access under "Separate parts in this issue" toward the bottom of the link at: http://www.access.gpo.gov/su_docs/ fedreg/a030909c.html. Accessed 5/9/08.
3. 42 USC 1395dd(g).
4. The final EMTALA TAG reports and recommendations are available at: http://www.cms.hhs.gov/FACA/07_emtalatag.asp. Accessed 5/9/08.
5. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Pub. L. 108-173, 117 Stat. 2066, Section 945.
6. Bitterman RA. EMTALA and the ethical delivery of hospital emergency services. Emerg Med Clin North Am 2006;24:557-577.
In April of this year the Centers for Medicare and Medicaid Services (CMS) proposed changes to the Emergency Medical Treatment and Active Labor Act (EMTALA) regulations that would once again significantly impact EMTALA's patient transfer rules.Subscribe Now for Access
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