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American Academy of Emergency Medicine

The Effect of EMTALA on Provider-Based Entities: Frequently Asked Questions

by Ralph L. Glover II, JD LLM

Ralph L. Glover II, JD LLM, is an attorney with Chuhak & Tecson, P.C. located in Chicago, IL. His practice focuses on provider regulation, reimbursement, licensure, and certification, as well as fraud, abuse, and Stark and EMTALA compliance. For further information, please contact him at (312) 855-4626 or rglover@chuhak.com

The Emergency Medical Treatment and Active Labor Act (EMTALA) was included in the COBRA legislation of 1986. It was promulgated to combat the discriminatory practice of some hospitals transferring, discharging, or refusing to treat indigent patients coming to the emergency department because of the high cost associated with diagnosing and treating these patients with emergency medical conditions. While the Act applies to all Medicare participating hospitals, it protects anyone coming to a hospital seeking emergency medical services, not just Medicare beneficiaries. EMTALA imposes strict penalties including fines and exclusion from the Medicare program for violations of the Act. The Act imposes three primary requirements on Medicare participating hospitals that provide emergency medical services.

  1. The hospital must provide an appropriate medical screening exam to anyone coming to the ED seeking medical care;
  2. For anyone that comes to the hospital and the hospital determines that the individual has an emergency medical condition, the hospital must treat and stabilize the emergency medical condition, or the hospital must transfer the individual; and
  3. A hospital must not transfer an individual with an emergency medical condition that has not been stabilized unless several conditions are met that includes effecting an appropriate transfer.
Frequently Asked Questions about EMTALA

Q:
When has an individual "come to the hospital?"

A:
Pursuant to the statute and regulations, an individual has come to the hospital if they arrive at the hospital and are on the premises including the parking lot, sidewalk, and driveway, and requests emergency care. In addition, any individual who is in an ambulance or helicopter owned and operated by the hospital, even if the ambulance is not on hospital grounds, and requests medical services, is considered to have come to the emergency room.

Q:
Will the definition of "comes to the hospital" be expanded by the government?

A:
The September 8, 1998, proposed rules for Hospital Outpatient Prospective Payment System include proposed changes to EMTALA. The proposed regulations would expand the definition of hospital property. In addition to the above, hospital property will include any facility or organization determined to be a provider-based department of the hospital that is located off the main campus of the hospital.

Q:
If an individual presents to the hospital seeking emergency medical care, can the hospital transfer the individual to a hospital-based urgent care facility located off-campus?

A:
If an individual presents to any contiguous or on-campus facility of a hospital that has one or more hospital-owned non-contiguous or off-campus facilities, the emergency medical screening examination must be performed within the contiguous or on-campus facilities of the hospital. In this situation, it would not be appropriate for the hospital to move the patient to an off-campus facility for a medical screening examination.

Q:
What is a "fast track" facility?

A:
In an effort to reduce the number of non-emergent cases that plague hospital EDs, hospitals are developing "fast track" or other urgent care departments either on the hospital's campus or at a separate off-campus location. These facilities are usually either hospital-owned or physician-owned. If the hospital owns the facility and is billing under the hospital's provider number as an outpatient department of the hospital, then EMTALA applies to that facility.

Q:
How does EMTALA apply to "fast track" or other outpatient facilities on the same campus as the hospital?

A:
Some hospitals put "fast track" facilities within the hospital, usually adjacent to the ED. In this case, EMTALA still requires that a screening exam be provided to anyone who comes to the emergency department or anyone coming to the hospital "fast track" seeking emergency medical care.

Q:
Can patients be sent to the "fast track" for treatment based on an initial triage without having to provide an emergency medical screening exam?

A:
It is not appropriate to simply triage a patient coming to the ED and send them to "fast track" without providing an "appropriate" medical screening exam. This would be a clear violation of the screening requirement. However, it may be appropriate to send patients with conditions of low acuity to the "fast track" for an appropriate medical screening exam as long as all patients with the same signs and symptoms are sent to the "fast track." In addition, the screening in the "fast track" would also have to be conducted by a physician or other appropriate medical staff member described in the hospital's medical staff bylaws as being appropriate for conducting emergency medical screening exams.

Q:
Does EMTALA apply when a person presents to the "fast track," instead of the emergency department, seeking medical treatment?

A:
Should a person present to the "fast track" seeking emergency medical care, that person must be provided an emergency medical screening exam either in the emergency department or the "fast track" department. As long as the "fast track" is billing under and is operated by the hospital, EMTALA applies to any situation when an individual "comes to the hospital" seeking emergency medical care.

Q:
For the movement of patients from the emergency department to the "fast track," do the transfer requirements of EMTALA apply?

A:
Movement of a patient within the hospital is not considered a "transfer." The interpretive guidelines provide, however, that as long as the "fast track" is on the same campus or on contiguous property, there should be no violation of the stabilization and transfer provisions if the person is moved from the "fast track" to the emergency department as long as the following three requirements are satisfied:

1. All individuals with the same medical condition are moved in such circumstances, regardless of their ability to pay for medical treatment;
2. There is a bona fide medical reason to move the patient; and
3. Qualified medical personnel accompany the patient.

Q:
Do the regulations express a preference on the part of HCFA or the OIG as to where the medical screening exam should be performed?

A:
If a hospital does have an on-campus "fast track" facility, the hospital's policies and procedures should detail the responsibilities of the "fast track" vis-a-vis the emergency department. It would be cleaner operationally for the emergency department to conduct all the screening exams and to send the non-emergent patients to "fast track." There may be situations, however, where it would be more feasible for the "fast track" to conduct medical screening exams for lower acuity patients based on the triage. This may occur in busy emergency departments or in emergency departments that see a great deal of non-emergent patients.

Q:
Does EMTALA apply to off-campus urgent care or "fast track" facilities?

A:
When a hospital develops an urgent care or "fast track" facility off the main campus on non-contiguous property, the facility is traditionally organized as a provider-based outpatient department of the hospital that bills under the hospital's Medicare provider number. EMTALA applies to this type of facility even though it is not on the hospital's campus.

Q:
What are the responsibilities of off-campus "fast track" or urgent care facilities under EMTALA?

A:
If a patient were to come to the off-campus urgent care or "fast track" facility seeking emergency medical care, the facility would have to provide an emergency screening examination and stabilization within the best of its ability until the facility could arrange an appropriate transfer.

Q:
Will EMTALA apply to other off-campus hospital-based facilities?

A:
In addition to urgent care and "fast track" facilities, EMTALA is likely to apply to other off-campus hospital-owned clinics and outpatient facilities that bill for services using the hospital's provider number. These facilities may include primary care clinics, specialty care clinics, and outpatient therapy or surgical facilities that are structured as provider-based departments of the hospital. EMTALA would, therefore, require that these hospital-based facilities provide an emergency medical screening exam to anyone coming to the facility seeking emergency medical services and, if an emergency condition exists, the facility would have to treat the patient within the best of its capabilities. Depending on the type of facility, it is not likely that all off-campus clinics would have the appropriate diagnostic equipment and appropriate personnel to handle sophisticated emergency medical conditions. Therefore, the facility should not be held to the standard of the hospital's emergency department, however, it must perform the EMTALA requirements according to the abilities of the facility's staff and available equipment.

Q:
What are the EMTALA transfer requirements for patients with emergency medical conditions and do they apply to off-campus hospital-based clinics?

A:
By regulation, hospitals may not transfer an individual with an emergency medical condition unless the patient consents to the transfer in writing, the physician certifies that the benefits of transfer outweigh the risks, the receiving facility has both the available space and has agreed to accept the transfer, the patient's available medical record is sent to the receiving hospital, and the transfer is conducted through qualified personnel and transportation. Assuming that coming to the off-campus hospital-based facility is the same as coming to the parent hospital, under the EMTALA requirements, the hospital-based facility must comply with the transfer guidelines.

Q:
Can a hospital-based clinic simply dial 911 or the local EMS emergency number for individuals presenting to the clinic with emergency medical conditions?

A:
Based on the EMTALA transfer guidelines, it would not appear to be appropriate for the hospital-based facility to simply dial 911 and rely on EMS to assume responsibility of the patient. This action would seem to be a clear violation of the stabilization and transfer requirements. It is likely that the agencies will require that the hospital parent of the off-campus facility accept responsibility of the patient and transport the patient to the parent hospital for treatment unless it is in the best interest of the patient to be transferred to another hospital. The determination of where the patient should be taken for treatment of their emergency medical condition would likely be influenced by the following:

1. Proximity of the off-campus facility to the parent hospital and to other hospitals;
2. Acuity of the patient;
3. Whether parent hospital or the other possible receiving hospitals provide specialized services that are necessary for diagnosis or treatment of the patient's emergency medical condition;
4. Whether there is a regional EMS in place; and
5. Whether the parent hospital owns and operates its own ambulances or other form of emergency medical transport.

Q:
Will the transfer responsibility differ depending on whether the hospital owns and operates its own emergency medical transportation?

A:
If the parent hospital owns its own emergency medical transportation, there will be more of a responsibility, on the parent hospital, to transport the patient from its hospital-based facility to the parent hospital for diagnosis and treatment. For hospitals without their own emergency medical transportation, it may be more appropriate for local EMS, if any, to assume responsibility of the patient and transport the patient to a hospital according to the EMS standards. HCFA guidelines provide that, in some cases, compliance with local, state, or regionally-approved EMS protocols is usually deemed to indicate compliance with EMTALA. Even when EMS protocols are followed, the OIG and HCFA are likely to require that any available medical record be sent to the receiving hospital and that a physician certifies that the benefits of transfer outweigh the risks.

Conclusion

Until the OIG and HCFA address this issue, hospitals with off-campus facilities should ensure that the emergency department and off-campus staff form lines of communication concerning EMTALA compliance issues. The hospital should conduct inservice educational programs to ensure that the staff at all its off-site facilities are aware of their requirements proscribed by EMTALA and that it is the intent of HCFA and the OIG to impose EMTALA on off-campus provider based facilities. It would also seem prudent to make sure that each facility has a staff member trained in lifesaving skills. The hospital should develop policies and procedures for off-campus, provider-based clinics, "fast track" and urgent care facilities in keeping with all the EMTALA requirements, especially the screening and transfer requirements.