Before you dive into post below, here is a short EMTALA reference card for those accepting or sending transfers. My hope is that you will find it to be a useful rapid reference: EMTALA Pocket Card Download
EMTALA related issues are complex. Not only do we have the original law, but we have subsequent case law that adds additional interpretations. In addition, the practice of medicine has changed since the inception of the original EMTALA law. We have numerous alternatives to a traditional hospital based emergency department ranging from free standing emergency departments to urgent care centers. All of these facilities treat various levels of injuries and their capabilities vary depending on their location. In some states, free standing emergency departments can be licensed without having to be open 24 hours a day and without having to meet the same standards as hospital based emergency departments. In others, highly equipped facilities are labeled as urgent care centers and can not use the free standing ED label. In addition, there continues to be an increase in the number of hospital owned practices and urgent care centers leading to further interpretation regarding the EMTALA burdens of these facilities. So where are we today and what are some of the common EMTALA issues you are likely to face?
1)Let’s begin with an area that has a little more clarity: Transfers.
The sending facility must document the following:
- Reason for transfer (service is not available or patient request)
- Has the emergency medical condition been stabilized? (no is an acceptable answer if the necessary service is not available)
- Has the patient consented to the transfer and/or has a physician certified the need?
- Has an accepting facility with the necessary services been located?
The receiving facility must document the following:
- Reason for transfer (specialty service or patient request)
- Is the necessary specialty service available ?
- Is there capacity ?
A few well known caveats apply here that we should highlight:
- If the transfer is due to a patient’s request, EMTALA does not apply.
- If the patient has been admitted (inpatient not OBS), then EMTALA does not apply. The observation status is not considered and admission by CMS therefore current interpretation is that EMTALA still applies to these patients.
- If the receiving facility has no capacity then a refusal is acceptable. However, if there is a history of making exceptions and creating space, then it is expected that a receiving facility will do so again.
2) When it comes to accepting transfers, who should be the decision maker?
This is a little less clear. The hospital has the burden to accept or refuse and is responsible for appointing the person to make that decision. Although a non-physician can make the determination regarding capacity (bed space, etc), it is more difficult for a non-physician to determine if the hospital has the necessary medical/surgical services. It has become common practice for the conversation to have two elements: a physician determining “medical necessity and capability” and a secondary conversation with a non-physician regarding capacity. Often, busy facilities will accept a patient based on medical need and hold transfer until there is capacity.
3) Which physician should make the decision regarding capability?
Is it appropriate for the ED physician to make that decision? Should the specialist be consulted or have the decision making authority ? Do the medical staff involved have a good comprehension of EMTALA law and the basis on which the decision should be made? This is another area of great variability. Some centers have the ED physician take all calls and make all decisions regarding capability. This is certainly acceptable as the ED physician is most likely to understand the capabilities of all the services available. It is a natural consequence of working in the ED. However, there will be subtleties of the disease processes that change the required treatment. These nuances can result in patients being accepted by an ED physician then rejected by a specialist based on the need for a sub-specialist.Take for example a facial fracture. Though you may have plastic surgery available, facial fractures involving the mandible are often handled by physicians with oral surgery training. The plastic surgeon may not have the expertise to address the fracture but the ED physician may not be aware of the differentiation. The same can be said of endovascualr neurosurgery vs general neurosurgery, or complex pelvic fractures vs general orthopedic fractures. Each specialty has reasons for referring to sub-specialists and they are important when it comes to accepting transfers.
One method for addressing this issue has been to train staff in a transfer center and set up protocols that are specialty specific. Certain patients are referred to the ED physician first while others are referred to the specialty surgeon then directed to the ED physician for final acceptance. Though this approach tends to lengthen the acceptance process, it results in more appropriate transfers and less errors. However, it also requires robust education processes for the specialists as temptation will be to turn away transfers based on criteria not allowable by EMTALA guidelines.
4) Urgent Care Centers
This is currently an area of interpretation. In the links below you will note two varying opinions from the American College of Emergency Physicians and the American Academy of Emergency Medicine, and yet another interpretation from the American Hospital Association. The short answer to this question is this: You should obtain a specific legal opinion regarding the urgent care or off-campus center the hospital owns in order to determine if there is an EMTALA burden and how far it extends. There are differing opinions surround the definition of the facility as stated in the law. The original law references an emergency department where a patient would present for care. However, subsequent case law has interpreted this to mean any facility that is hospital owned that would be perceived as providing emergency care by a lay person, regardless of location (even if away from the main hospital campus). How is one then to make a decision regarding this obligation? Ask a few questions:
- Is the facility (free standing ED, urgent care center, etc) hospital owned? If yes, proceed to the next question.
- Is the facility advertised as providing walk-in urgent or emergent treatment? if yes, proceed. If no, be sure there is a clear distinction drawn in all advertising and signage that the facility is for “urgent” and “non-emergent” care. (See Recent court decision)
- If you are unclear about about the answers to the questions above, review these three definitions of an “emergency department” contained in the law:
- Any department or facility of a hospital that either:
- is licensed by the state as an emergency department
- is held out to the public as providing treatment for emergency medical conditions
- in the preceding calendar year actually provided treatment for emergency medical conditions on an urgent basis on one-third of the visits to the department.
- Any department or facility of a hospital that either:
It is important to note that the medicare state operations manual states:
Hospitals that may meet this one-third criterion may be specialty hospitals(such as psychiatric hospitals), hospitals without “traditional” emergencydepartments, and urgent care centers. In addition, it is not relevant if the entity that meets the definition of a dedicated ED is not located on the campus of the main hospital. CMS link
Given the complexities and interpretations of these rules, it is prudent to consult your own healthcare attorney for a formal opinion. Then, your own internal hospitals policies and procedures should be structured to match. That way there is internal conflict or disagreement regarding the purpose of the urgent care and what is expected of staff when an “emergency” presents itself.