Rebecca Kornas, MD, FACEP
President CO ACEP
Getting a Handle on EMTALA in a Post Roe World
Congress enacted and President Ronald Reagan signed into law the Emergency Medical Treatment & Labor Act (EMTALA) on April 7, 1986. EMTALA, the anti-dumping law, is still an unfunded federal mandate for universal access to all, regardless of ability to pay, citizenship, or legal status, with no designated means to cover all the “safety net” care that EMTALA ensures, which shifts the cost of this care to the hospitals instead of the patients. The expansion of Medicaid, under the Affordable Care Act has increased coverage, but a significant portion of the cost is absorbed by individual hospitals and health care systems, as well as taxpayers. A basic assumption within EMTALA was that private hospitals would continue to have open beds to accept these patients.
Interestingly, the number of inpatient beds in the U.S. peaked in 1965 at 1.7 million [1] as hospitals began targeting higher occupancy rates (rather than high occupancy), focusing resources on efficient bed usage in their systems and financial success. By its nature as an anti-dumping law, EMTALA assumed that private hospitals with capacity and beds to accept these patients would continue to exist to care for these patients. In recent years, overcrowding at hospitals has tested this assumption, leaving hospitals at capacity more frequently and “closed” to transfers and admissions. This trend only intensified with the COVID-19 pandemic, subsequent great resignation and staffing difficulties which have ensued. Suddenly, not only did individual hospitals not have capacity, but sometimes entire cities, states, and even regions did not. As a result, there was flexibility added to EMTALA through blanket waivers, which by and large we have retired, after the COVID-19 related federal Public Health Emergency expired on May 11, 2023.
Outside of Colorado, in the United States, after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization Supreme Court there are threats of liability and potentially criminal charges that may ensue for physicians providing care to pregnant women. In 2022, then ACEP President, Gillian Schmitz, MD, FACEP, expressed deep concerns about the medical and legal implications of judicial overreach into the practice of medicine and stated that “politics should never compromise an emergency physician’s ability to have an honest discussion with a patient about their health or to evaluate all treatment options.” This year, Colorado voters are currently evaluating ballot measure 89 to determine whether to enshrine the right to legal abortion in the state constitution. I am grateful to practice in a state where women and their physicians still have the ability to make the safest and most appropriate choices for themselves, without legislative and regulatory constraints we see in other states. There continue to be terrible cases involving pregnant women having life threatening delays in care touching our colleagues and their patients in other states. ACEP National continues to partner with local state chapters to advocate for the safety of our patients and our medical practice in these uncertain times.
Scenario to consider:
What if you just sent a patient having an occlusive myocardial infarction to the catheterization lab and EMS calls you and states that they are en route to your emergency department at Hospital A with another STEMI patient. Click. Conversation over.
If EMS has called and stating they are coming to your facility, you as the emergency department physician are obligated to:
- Perform a Medical Screening Exam (MSE) to determine if the patient if an emergency medical condition exists and if the patient is stable.
- You contact your cardiologist and there is only one cardiologist and cath lab team at your facility. You do not have capacity to treat the patient and thus, now, must determine “appropriate” transfer to another hospital with an available cardiologist/cath lab, obtain consent to transfer the patient from an accepting physician (cardiology/EM).
- Then you must transfer the patient (likely utilizing the same crew that brought him/her to your facility) to transfer to hospital B.
If an ambulance informs your facility that it is bound for your doors, the emergency department physician MUST perform an MSE, and if you are not able to stabilize the patient (in this instance with cath lab intervention on STEMI), you must find a facility with the capacity to do so to accept the patient for transfer.
Interestingly, EMTALA does not apply to Veterans Affairs hospitals because they are considered “non-participating” hospitals. However, the VA does have policies to ensure safe patient transfer in compliance with EMTALA.
As I was attempting to process and synthesize information on the ins and outs and whys of EMTALA, I came across this fact sheet from ACEP. It contained much of the background and explainer information, which I felt would be helpful for our physicians in Colorado ACEP to have access to, thus instead of getting creative with ChatGPT or a thesaurus, I opted to share with you the entirety of “Understanding EMTALA” from the great minds at National ACEP Ethics & Legal.
Please see below:
Understanding EMTALA
Emergency Physicians’ Duty to Care for Anyone, Anytime
A patient is typically required to provide insurance and payment information before seeing a doctor. But emergency departments are unique—anyone who has an emergency must be treated or stabilized, regardless of their insurance status or ability to pay. The patient protection that makes this possible is a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA).
Emergency physicians are firmly committed to providing care for everyone who needs it, otherwise many patients would go without treatment.
But a large portion of the care provided by emergency physicians goes uncompensated and under-compensated, frequently leaving the doctors with unrecouped losses that add layers of complexity and resource constraints to an already difficult job.
EMTALA and Reproductive Health
The overturning of Roe v. Wade creates worrisome ambiguity around physicians’ duty to patients under EMTALA. New state laws that restrict access to reproductive health care or services could directly conflict with existing federal EMTALA obligations to provide care, which could put emergency physicians in an impossible position where they must choose between their patient’s health or their own exposure to liability, which in some states could be criminal charges.
Emergency physicians are working to untangle and assess the vast implications and worrisome ambiguity resulting from the Supreme Court’s decision.
Emergency physicians are currently analyzing medical liability, medical record and personal health data security, and other areas of uncertainty to develop recommendations to help address gaps in regulations or statutes that could create clinical and legal barriers to how emergency physicians practice emergency medicine.
Find more resources here.
What is EMTALA?
EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd).
EMTALA was designed to prevent hospitals from transferring uninsured or Medicaid patients to public hospitals without, at a minimum, providing a medical screening examination to ensure they were stable for transfer.
This law requires Medicare-participating hospitals with emergency departments to screen and treat the emergency medical conditions of patients in a non-discriminatory manner to anyone, regardless of their ability to pay, insurance status, national origin, race, creed or color.
How does EMTALA define an emergency?
An emergency medical condition is defined as “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.”
What is EMTALA’s scope?
- According to the law, EMTALA applies when an individual “comes to the emergency department.”
- CMS defines a dedicated emergency department as “a specially equipped and staffed area of the hospital used a significant portion of the time for initial evaluation and treatment of outpatients for emergency medical conditions.” This means, for example, that hospital-based outpatient clinics not equipped to handle medical emergencies are not obligated under EMTALA and can simply refer patients to a nearby emergency department for care.
What are the provisions of EMTALA?
Physicians can get penalized for refusing to provide necessary stabilizing care for an individual presenting with an emergency medical condition or facilitating an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition.
Hospitals have three main obligations under EMTALA:
- Any individual who comes and requests must receive a medical screening examination to determine whether an emergency medical condition exists. Examination and treatment cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments also must post signs that notify patients and visitors of their rights to a medical screening examination and treatment. Signage that could deter patients from seeking emergency care could be an EMTALA violation.
- If an emergency medical condition exists, treatment must be provided until the emergency medical condition is resolved or stabilized. If the hospital does not have the capability to treat the emergency medical condition, an “appropriate” transfer of the patient to another hospital must be done in accordance with the EMTALA provisions.
- Hospitals with specialized capabilities are obligated to accept transfers from hospitals who lack the capability to treat unstable emergency medical conditions.
A hospital must report to CMS or the state survey agency any time it has reason to believe it may have received an individual who has been transferred in an unstable emergency medical condition from another hospital in violation of EMTALA
What are the requirements for transferring patients under EMTALA?
- EMTALA governs how patients are transferred from one hospital to another. Under the law, a patient is considered stable for transfer if the treating physician determines that no material deterioration will occur during the transfer between facilities.
- EMTALA does not apply to the transfer of stable patients; however, if the patient is unstable, then the hospital may not transfer the patient unless:
- A physician certifies the medical benefits expected from the transfer outweigh the risks OR
- A patient makes a transfer request in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.
- In addition, the transfer of unstable patients must be “appropriate” under the law, such that (1) the transferring hospital must provide ongoing care within it capability until transfer to minimize transfer risks, (2) provide copies of medical records, (3) must confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and (4) the transfer must be made with qualified personnel and appropriate medical equipment.
How common is uncompensated care?
Uncompensated care should be recognized as a legitimate practice expense for emergency physicians:
- Approximately 95.2% of emergency physicians provide some EMTALA-mandated care in a typical week and more than one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week.
- According to the Centers for Medicare & Medicaid Services, 55% of an emergency physician’s time is spent providing uncompensated care.
- Despite comprising just 4% of all US physicians, emergency physicians provide two-thirds of all acute care for the uninsured and half of it for Medicaid patients.
- Medicaid care is severely underfunded, and reimbursement rates often do not cover overhead costs of providing care, much less the physician’s time.
- Medicare coverage also falls short. Adjusted for inflation in practice costs, physician reimbursement has actually declined 19 percent from 2001 to 2018.
What are the penalties for violating EMTALA?
- The Centers for Medicare and Medicaid Services (CMS) has a web portal for patients, health care workers or others to file an EMTALA complaint.
- The Department of Health and Human Services (HHS) Office of the Inspector General (OIG), may impose a civil monetary penalty on a hospital ($119,942 for hospitals with over 100 beds, $59,973 for hospitals under 100 beds/per violation) or physician ($119,942/violation) pursuant to 42 CFR §1003.500 for refusing to provide either any necessary stabilizing care for an individual presenting with an emergency medical condition that requires such stabilizing treatment, or an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition.
- Under this same authority, HHS OIG may also exclude physicians from participation in Medicare and State health care programs. CMS may also penalize a hospital by terminating its provider agreement.
- Additionally, private citizens who are harmed by a physician’s or hospital’s failure to provide stabilizing treatment may file a civil suit against the hospital to obtain damages available under the personal injury laws of that state in which the hospital is located, in addition to recouping any equitable relief as is appropriate. 42 U.S.C. § 1395dd(d)(2)(A)
ACEP has fantastic resources, like the one I shared above, for a multitude of other emergency medicine adjacent subjects. On a slow shift, I suggest that you peruse the ACEP website. If you want to learn more about EMTALA (or anything that touches advocacy in EM historically) you should check out the EMRA Advocacy Handbook.
If you have any questions, comments or concerns about EMTALA in our state or issues that the Colorado ACEP team should be aware of and working on, please reach out to our executive director, Suzanne Hamilton, via EngagED.
Keep fighting the good fight.
- Hermer LD. The Scapegoat: EMTALA and emergency department overcrowding. J Law Policy. 2006;14(695):
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