Hospital's Duty To Accept Transfers under EMTALA
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
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
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
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.