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by Ralph L. Glover II, JD LLM
A reoccurring issue among hospital emergency services providers involves the obligation of a hospital to accept transfers under the nondiscrimination provision of EMTALA. Under the nondiscrimination provision, hospitals with specialized capabilities (burn units, trauma designation, NICU, etc.) must accept an appropriate transfer of an individual who requires such specialized capabilities if the hospital has the capacity to treat the individual.
Misinterpretation of this requirement can overburden hospitals with specialized capabilities. In addition, transferring hospitals can transfer indigent or non-insured individuals to hospitals with specialized capabilities even though the transfer was motivated by the individual's ability to pay and not any special needs of the individual.
There are two components to the non-discrimination provision whereby a hospital with specialized capabilities must accept an appropriate transfer of an unstabilized individual:
1. The individual must require the specialized capabilities of the receiving hospital, and
2. The receiving hospital must have the capacity to treat the individual.
Specialized Services Element
The non-discrimination provision does not require that a trauma center accept every trauma patient or that a hospital with an NICU accept every woman in labor. If a transferring hospital has an individual with an emergency medical condition, and the individual does not require any treatment beyond the capabilities or facilities available at the transferring hospital, the receiving hospital is under no obligation to accept the transfer.
Example: Hospital A has a fully staffed and equipped emergency department with specialty on-call physicians available. Hospital B is a Level 1 trauma center. Hospital A receives two individuals who were in a motor vehicle accident and who both require the services of a thoracic surgeon due to internal injuries. Hospital A has thoracic surgeons on-call and has the capability within its own emergency department to treat the individuals. The individuals, however, are uninsured and Hospital A contacts Hospital B to initiate an appropriate transfer claiming that the patients require the specialized capabilities of a Level 1 trauma center.
Analysis: The motivating factor behind Hospital A's wish to transfer the individuals is their ability to pay, not their medical needs. Hospital A has the staff and capability to treat and stabilize the individuals. Hospital B, therefore, has no obligation to accept the transfer even if it has the capacity to do so.
The other consideration on whether a hospital with specialized capabilities must accept a transfer of an unstabilized individual is whether the hospital has the capacity to treat the individual. Capacity is not only determined by the hospital's current number of patients in a specialized unit, number of staff, or available equipment. If the hospital, is able to, or has in the past, addressed occupancy issues by moving patients within the hospital, calling in additional staff, and borrowing additional equipment from other facilities, then the hospital may be able to provide services to patients in excess of its specialized occupancy limit.
Example: Hospital A has a 10 bassinet neonatal intensive care unit that is currently full. In the past, Hospital A has accommodated a capacity of 15 neonates by relocating ventilators and other equipment to its children's medical floor and providing additional staff to monitor the bassinets. Hospital B had a woman in labor present to the hospital, however, Hospital B does not have an obstetrical department, however, it does have the capability to deliver a baby. Once the baby and placenta are delivered, it is determined that the baby is in distress and requires that specialized services of a hospital with an NICU. Hospital B contacts Hospital A to initiate an appropriate transfer.
Analysis: In this situation, Hospital A is required to accept the transfer because the infant requires the specialized services of Hospital A and Hospital A has demonstrated in the past its ability to provide services beyond the capacity of its NICU.
While it would be difficult for the ED staff of a hospital with specialized capabilities to know the capabilities of all of the hospitals responsible for incoming patient transfers, especially in a large urban area, it would be a good idea to know the capabilities of the hospitals responsible for the most incoming transfers. In addition, ED staff should be educated as to the responsibilities of both facilities involved in the transfer of unstable emergency medical conditions. The receiving hospital is obligated to accept the transfer only if the patient requires the specialized services provided by the hospital and if the hospital has the capacity to treat the individual.
Ralph L. Glover II, JD LLM, is an attorney with the Chuhak and Tecson law firm in Chicago, IL. His practice focuses on provider and supplier regulation, reimbursement, licensure, and certification in addition to EMTALA, Stark, and fraud and abuse compliance. For further information, please contact Chuhak and Tecson at (312) 444-9300 or contact him via email at firstname.lastname@example.org.