In the early 1980s, reports of widespread "patient dumping" began to appear in the press and the medical literature (4,5,6). Schiff and associates (7) estimated that 250,000 inappropriate transfers of medically unstable patients occurred in 1986, resulting in increased patient morbidity and mortality. Hospitals were under increasing financial pressure to control health care costs. In response to inflationary health care expenditures, private insurers created health maintenance organizations, Medicare developed diagnosis-related groups, and Medicaid tightened eligibility requirements. Less money from these insured patient groups was available to "cost-shift" to pay for indigent care (5). Treating nonpaying patients became increasingly financially burdensome. As a result, it was believed, many private hospitals were transferring patients to the streets or dumping them on public hospitals before they had adequately diagnosed or stabilized these patients' emergency medical condition. Schiff and associates (7) documented the transfer of unstable patients with emergency conditions such as delirium tremens, confusion after falling from a third story, an acute cerebrovascular accident with stuporous mental status, abdominal trauma with syncope and falling hematocrit level, and head trauma with unequal pupillary reaction.
In response to this patient dumping, Congress enacted the Consolidated Omnibus Budget Reconciliation Act in 1985. EMTALA was created within the Medicare section of this large federal budget legislation. EMTALA outlines the legal responsibilities of all hospitals that receive Medicare reimbursement to adequately evaluate, stabilize, and appropriately transfer patients regardless of ability to pay (1).
EMTALA applies to patients suffering psychiatric emergencies or medical emergencies. According to the Centers for Medicare and Medicaid Services—formerly the Health Care Financing Administration (HCFA)—which manages the federal Medicare and Medicaid programs and investigates alleged EMTALA violations, "If a hospital offers services for medical, psychiatric, or substance abuse emergency conditions, it is obligated to comply with the anti-dumping provisions" (8). Psychiatrists, residents in training, and other mental health clinicians and administrators should be educated about this federal legislation in order to uphold legally and ethically acceptable standards of care. This is true whether they practice emergency psychiatry, take calls at a psychiatric hospital, or work in inpatient or outpatient psychiatric settings. Although EMTALA has broad clinical, legal, and economic implications for physicians and hospitals, we found only one article that addressed the specifics of this legislation in a psychiatric journal (9). The majority of articles that discuss the specifics of EMTALA have been published in hospital management, legal, and nursing journals and, rarely, in emergency medicine journals.
Since EMTALA was enacted in 1985, significant medical and legal controversy has ensued over the legal interpretation of the statute and the ability of CMS to enforce the statute consistently across the United States. To deal with this inconsistency, CMS convened a broad-based task force in June 1996 to clarify the federal EMTALA requirements and CMS's enforcement procedures. The result was the publication of the 1998 HCFA Site Review Guidelines, State Operations Manual. The ten mandates of EMTALA (box) discussed in this paper derive from the federal EMTALA statute (1), the federal CMS regulations (10), and the CMS Site Review Guidelines (8).
CMS published proposed revisions to EMTALA regulations in the Federal Register on May 9, 2002. Comments on the proposed changes were accepted through July 1, and the final revisions are expected this fall.
The ten mandates of EMTALA
1. A medical screening examination must be performed for all patients who come to the emergency department.
2. The medical screening examination must not be delayed in order to determine payment.
3. The medical screening examination must be performed in a nondiscriminatory manner for all patients.
4. Using all available services, the hospital must stabilize the patient before transfer.
5. The referring hospital must transfer the patient appropriately.
6. The receiving hospital must accept the patient if it has special capabilities.
7. The patient has the right to refuse treatment and to refuse transfer.
8. The hospital must log and document the emergency evaluation and treatment of every patient.
9. The receiving hospital must report an EMTALA violation to CMS within 72 hours.
10. Whistleblower protection is provided.
Perform medical screening examination
Case 1. An elderly woman brings her 43-year-old son with schizophrenia to the hospital because "he is not doing well." The mother, who has brought her son to this same hospital many times before, enters a small waiting room and telephones the inpatient unit directly to say that her son needs to be admitted. Over the phone, the inpatient staff tells the mother that there are no inpatient beds available and instructs her to take her son to the hospital across town. The mother leaves with her son as directed (11).
The staff has given this distraught mother legally and clinically problematic instructions. EMTALA requires that all patients who come to a hospital and request emergency treatment receive a medical screening examination to determine whether an emergency medical condition exists. Clearly this patient did not receive a medical screening examination to determine whether he had an emergency medical condition before he was instructed to go to another hospital
Neither the federal EMTALA statute nor the CMS regulations state exactly what a medical screening examination should include. However, CMS does define this screening examination as "the process required to reach with reasonable clinical confidence the point at which it can be determined whether a medical emergency does or does not exist" (4,8). An appropriate examination will vary with the patient's presenting symptoms and with the capabilities of the health care facility. A screening examination may range "from a simple process involving only a brief history and physical examination, to a complex process that also involves performing ancillary studies and procedures such as … lumbar puncture, lab tests, CT scan, and/or other diagnostic tests and procedures" (4). In case 1, the inpatient staff should have directed the patient to the emergency department of the same hospital for the appropriate medical screening examination as required by EMTALA.
EMTALA does not specifically require that a physician perform the medical screening examination. However, CMS dictates that the bylaws of the hospital's governing body must authorize the specific nonphysician clinicians that may perform the examination under the supervision of a physician (12). Further triage is not equivalent to a medical screening examination. The purpose of triage is to determine, on the basis of the severity of patients' medical or psychiatric conditions, the order in which patients will be evaluated and treated. Triage is not sufficient to determine the presence or absence of an emergency medical condition (4).
In addition to mandating a medical screening process for all patients seeking emergency treatment, EMTALA provides a fairly expansive definition of coming to the emergency department. In case 1, although the mother did not bring her son directly to the emergency department, she brought him to the hospital. EMTALA defines "coming to the emergency department" as coming to hospital property. Legal interpretation of EMTALA stipulates that such property includes the parking lot, the hospital grounds, a hospital parking structure, all off-site clinics that operate under the hospital's Medicare provider number, and ambulances owned and operated by the hospital, even if they are not on hospital grounds. Thus even off-site satellite clinics that do not routinely offer or provide emergency care are mandated to provide a medical screening examination and stabilizing care within their capabilities (4,13).
In 1998 CMS threatened a Chicago hospital with loss of Medicare reimbursement after a 15-year-old shooting victim died in the hospital's parking lot. Employees refused to leave the building to assist the boy, because they thought they would be violating hospital policy. The chief executive officer acknowledged that the ambulance was slow in arriving and said that because the facility was not a trauma center, hospital staff did not believe they were equipped to handle the case. The patient was admitted to the hospital, but soon afterward he suffered a cardiac arrest, and cardiopulmonary resuscitation was not able to revive him. The medical examiner later stated that the patient would have required an immediate operation to repair his aorta to survive. According to EMTALA, the hospital should have acted within its capabilities to medically screen and stabilize the patient until an appropriate transfer was arranged (14).
Recommended components of a psychiatric screening examination
Check for abnormal vital signs
Suicidal ideation, homicidal ideation
Delusions, hallucinations, impaired reality testing
Grave passive neglect or "grave disability"
Substance intoxication or withdrawal
Severe decompensation of any psychiatric disorder
Decreased consciousness suggestive of drug overdose or head injury
Lacerations or other self-inflicted injury
Refer to a medical emergency department for:
Any other serious medical problem or complaint
Do not delay medical screening
Case 2. A mother brings her 14-year-old daughter to the psychiatric emergency service because she is worried about her daughter's increasing depression and talk of suicide. The mother is informed that her insurance plan requires a $100 copayment for emergency services. The registration clerk insists that unless the mother pays the $100, the clinical staff will not be able to evaluate her daughter. Unable to afford the copayment, the mother leaves without having her daughter evaluated.
EMTALA requires that all patients requesting emergency treatment receive a medical screening examination. EMTALA states: "A participating hospital may not delay provision of an appropriate MedSE [medical screening examination] … or further medical examination and treatment … in order to inquire about the individual's method of payment or insurance status" (15). In essence, the hospital cannot delay the screening examination in order to inquire about payment, copayment, insurance coverage, or prior authorization, even if the patient's managed care plan requires prior authorization for payment (16,17,18). On this issue, CMS states: "Hospitals may follow a reasonable registration process for individuals requesting emergency treatment and request insurance information as long as it does not delay screening or treatment" (17,19).
EMTALA does not specify the exact protocol or language that staff should use in addressing a patient's or a family member's question about insurance coverage or payment, except that such discussions cannot be given greater priority than the hospital's obligation to perform the screening and stabilization of the patient (4). The courts have viewed "discussions between a hospital staff member and a patient regarding potential prior authorization requirements and their financial consequences that have the effect of delaying a MedSE as violations of the anti-dumping statute" (4). Only an individual who is well trained in answering these questions and knowledgeable about the hospital's obligation under EMTALA should answer a patient's inquiries about financial liability (18). Ultimately, if a patient requests emergency care, personnel should not be concerned about payment issues (5). In case 2, the girl should have received a medical examination to determine the presence of an emergency medical condition before the clerical staff demanded the $100 copayment.
Perform nondiscriminatory screening
Case 3. A 43-year-old homeless woman with alcoholism presents intoxicated, with a blood alcohol level of .325. She tells the clerical staff that she feels suicidal and plans to drink herself to death. The psychiatric nurse hears the patient's chief complaint and immediately consults with the psychiatrist on call by telephone to refer this woman out. The nurse reports, "She's clearly not going to drink herself to death tonight. I've seen hundreds of these patients and they're never suicidal when they sober up." The on-call psychiatrist agrees and responds, "If we admit her, she will just relapse to drinking on discharge." The woman is referred out, wanders across the parking lot, and is injured by a passing car.
In case 3, neither the physician nor the nurse performed an adequate medical screening to determine whether this woman had an emergency medical condition. With a blood alcohol level above the legal limit, the patient is a potential danger to herself. The clerical staff noted her vague complaint of wanting to drink herself to death, but an adequate psychiatric screening was not performed by an authorized clinician. Even though the woman's blood alcohol level was high, staff did not perform a screening for medical emergencies, including alcohol withdrawal seizures, delirium tremens, overdose, physical injuries, additional suicidal plans, and access to lethal means of self-harm.
The EMTALA regulations define an emergency medical condition as "a condition manifested by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in (a) placing the health of the individual in serious jeopardy; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part" (20,21). The CMS Site Review Guidelines also state: "Psychiatric hospitals that provide emergency services are obligated under these regulations to respond within the limits of their capabilities. Some intoxicated individuals may meet the definition of 'emergency medical condition' because the absence of medical treatment may place their health in serious jeopardy…. Further, it is not unusual for intoxicated individuals to have unrecognized trauma. Likewise, an individual expressing suicidal or homicidal thoughts or gestures, if determined dangerous to self or others, would be considered to have an emergency medical condition" (22).
The screening examination performed by a psychiatric emergency service will differ from that performed by a medical emergency service because of the different specialized capabilities specific to each service. (See the box on the previous page for a list of recommended components of a psychiatric screening examination to determine the presence of a psychiatric emergency condition.)
If an adequate screening examination reveals no emergency medical condition, then EMTALA provisions have been adequately addressed (5). For example, if the patient denies suicidal or homicidal ideation, is not psychotic, and is managing his or her daily affairs and no medical emergency is present, EMTALA likely does not apply.
Use all available services
Case 4. A 63-year-old woman with morbid obesity and a long history of chronic paranoid schizophrenia has been noncompliant with her haloperidol regimen. She has refused to eat or drink all week because she believes she is being poisoned. Her desperate husband brings her to the emergency department. The emergency department physician treats her with 2 mg of haloperidol and 1.5 liters of intravenous fluids and calls the psychiatric hospital to transfer her. Concerned that the patient is not medically stable, the psychiatrist on call advises the emergency department physician that the psychiatric hospital has no intravenous capabilities and that the patient must be stable enough for outpatient medical care before the hospital can accept her in transfer. The emergency department physician assures the psychiatrist on call that the patient is medically stable. When the patient arrives at the psychiatric hospital, the psychiatrist reviews the laboratory test results and learns that the patient is dehydrated and has a high sodium level, her kidneys are not functioning properly, she is severely psychotic, and she continues to refuse oral fluids.
Given the patient's severe psychosis, her laboratory test values— which indicate significant dehydration—and her unwillingness to ingest fluids orally and the psychiatric ward's lack of intravenous capability, this patient is not medically stable for transfer to this inpatient psychiatric unit. CMS's definition of stabilize is "to provide such medical treatment necessary to assure, within a reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer." CMS further states that in an appropriate transfer, "The treating physician reasonably believes the receiving facility has the capability to manage the patient's medical condition and any reasonably foreseeable complication of that condition" (4,13).
EMTALA mandates not only that hospitals stabilize patients before transferring them, but also that they use "all available hospital services" necessary for stabilization. Such services extend to calling in specialists and increasing staff if indicated and customary for a hospital to do so. Hospitals must implement these measures when needed to stabilize a patient, regardless of the patient's ability to pay. In case 4, the emergency department physician did not represent the patient's condition accurately and did not reasonably ensure that the patient's condition would not deteriorate as a result of the transfer. Given the patient's severe psychosis, she needed further medical observation and continued intravenous fluids and antipsychotic treatment until she was rehydrated and able to ingest fluids.
If an on-call specialist does not respond to an emergency call after a reasonable period, the emergency department physician will not be liable under EMTALA if he or she transfers a patient after deciding that the benefits of transfer outweigh the risks of treating the patient in the absence of the specialist's expertise. In case 4, both the on-call specialist who failed to respond and the hospital could be held liable under EMTALA (20).
Requirements for an appropriate transfer
The transferring physician must contact the receiving physician before the transfer.
The transferring physician must accurately relate the patient's medical status.
The patient or the patient's representative must consent to the transfer.
If the patient or the patient's representative refuses transfer, the transferring physician must document that the benefits of transfer outweigh the risks.
The transferring physician believes that no further harm will occur during transport.
The transferring physician believes that the receiving hospital can manage the patient.
The receiving physician must accept transfer of the patient.
The transferring hospital must provide appropriate transport.
The transferring hospital must send all necessary medical records to the receiving hospital.
The transferring hospital must provide the name of any on-call physician who failed to appear.
Transfer the patient appropriately
EMTALA was not enacted to prevent patient transfers but to protect indigent patients from dangerous transfers by requiring that they be stabilized before being transferred. A hospital may transfer unstable patients provided that it has done all that it can within its capabilities to stabilize the patient and has met the requirements for an appropriate transfer (6,23). A psychiatric emergency department may need to transfer a patient with an acute psychiatric condition because no hospital bed is available for the patient. A rural hospital or clinic that lacks necessary inpatient psychiatric beds or expertise may need to transfer a patient. A small rural medical hospital may need to transfer a medically unstable patient to an urban hospital with special capabilities.
EMTALA allows a facility to transfer an unstable patient "if a physician (or other 'qualified' medical personnel when a physician is unavailable) has signed a certification that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual … in effecting the transfer" (6). However, EMTALA dictates that the transfer must be "medically appropriate." An "appropriate transfer" means that the transferring hospital provides treatment to minimize risks to the patient, the receiving hospital has available space and qualified personnel and has agreed to accept the patient, the transferring hospital sends all relevant records to the receiving hospital, and qualified medical personnel and equipment are used (24). For purposes of transferring a patient with a psychiatric condition to another facility, a patient who is protected and prevented from injuring himself or herself or others is considered to be stable.
Case 1, in which a woman brought her 43-year-old son with schizophrenia to the hospital for admission, illustrates two EMTALA violations with which we are now familiar. In addition to not performing a medical examination as required before referring the patient to another hospital, the clinical staff at the referring hospital made no effort to contact the receiving hospital to determine whether it could accept the patient or to relay the patient's condition. These two potential violations could result in a fine of up to $50,000 per violation. (The box on this page lists EMTALA requirements for an appropriate transfer.)
In addition to the requirements listed in the box, a transfer certificate clearly documenting the risks and benefits on which the physician based the decision to transfer must accompany the patient (20). If a physician is not present to sign the transfer certificate, an authorized nonphysician clinician who has evaluated the patient may sign it, but only after consultation with the physician who made the transfer decision. The physician who authorized the transfer must later countersign the certificate.
Accept the patient if special capabilities exist
Case 5. A brain injury rehabilitation center calls the psychiatric hospital because one of its young patients with a head injury has set his bed on fire, assaulted staff, and wrapped the cord from the window blinds around his neck. A medical workup for the cause of this violent decompensation has been performed, but no significant change in the patient's medical status has been found. Lacking skills in the management of dangerous behavior, the rehabilitation staff requests emergency psychiatric hospitalization for this out-of-control patient. The psychiatrist on call refuses to accept the patient because the rehabilitation facility has "locked units, a consulting psychiatrist, behavioral psychologists, and high staffing ratios." The psychiatrist on call does not believe the acute-care psychiatric hospital has any additional services to offer the patient.
EMTALA requires hospitals with specialized facilities, such as burn units, neonatal intensive care units, and acute psychiatric units, to accept transfer of patients needing specialized care regardless of the patient's ability to pay. The CMS Site Review Guidelines state that "Recipient hospitals only have to accept the patient if the patient requires the specialized capabilities of the hospital in accordance with EMTALA. If the transferring hospital wants to transfer a patient because it has no beds or is overcrowded, but the patient does not require 'specialized' capabilities, the receiving hospital is not obligated to accept the patient. If the patient required the specialized capability of the intended receiving hospital and the hospital had the capability and capacity to accept the patient but refuses, EMTALA has been violated" (25). Clearly, the staff of this brain injury rehabilitation center does not have special expertise or "capability" to provide treatment for acutely suicidal and homicidal patients. Although the center has a consulting psychiatrist for scheduled evaluations, this patient needed the structure and expertise of an inpatient psychiatric unit to stabilize an emergency psychiatric condition.
Uphold the patient's right of refusal
Patients or their legal representatives have the right to refuse treatment or transfer. If a patient refuses screening, examination, and treatment, the hospital is not in violation of EMTALA if it respects the patient's wishes. However, the physician must inform the patient or the patient's representative of the risks and benefits of examination and treatment and take "all reasonable steps" to secure written informed consent for refusal of treatment (5,26). Similarly, a hospital is in compliance with EMTALA if it offers to transfer a patient and the patient refuses the transfer, as long as the hospital has explained the risks and benefits and has taken reasonable steps to obtain written informed consent of the patient's refusal (5,26). Of course, a patient may refuse examination, treatment, or transfer only if assessment demonstrates adequate decision-making capacity to provide informed consent (5).
In case 2, the woman concerned about her 14-year-old daughter's depression and suicidal ideation leaves without an evaluation because she cannot afford the requested copayment. In this case, the hospital violated EMTALA because it did not inform the mother of the risks and benefits of the evaluation. It further violated EMTALA because the clinical staff did not take all reasonable steps to obtain a signed consent of treatment refusal from the mother. This is in addition to the hospital's previous violation committed when it demanded the $100 copayment and delayed the screening examination. The hospital and the physician are potentially responsible for three EMTALA violations in this case, for a possible total of $150,000 in fines to each party.
Document all evaluations and treatments
CMS regulations on the interpretation of the EMTALA statute require that hospitals maintain a central log of all individuals who come to the emergency department for assistance (27). Furthermore, CMS and good medical practice demand that the screening, treatment, disposition, and decision making regarding stabilization and transfer of every patient be accurately and legibly documented in the medical record. The documentation must demonstrate that an adequate medical screening was performed to determine the presence of an emergency medical condition. The documentation must also demonstrate that all usual hospital services were used to stabilize the patient before a necessary and appropriate transfer, including the use of on-call specialists and increased staffing if that is customary to increase capacity to treat. Importantly, the key to successful EMTALA compliance is evidence that the hospital and all the health care providers apply the same screening, evaluation, and stabilization standards to all patients requesting emergency care, regardless of ability to pay.
Report an EMTALA violation within 72 hours
Case 6. A private hospital clinician calls the local public hospital to find out whether it has any available beds. The receptionist at the public hospital informs the clinician that beds are available and then asks the clinician if he would like to speak with the psychiatrist on call about referring a patient. The private clinician abruptly hangs up the phone. Within 30 minutes, a law enforcement officer arrives at the public hospital with an indigent psychotic patient who is threatening to kill her sister. The officer presents paperwork from the private hospital that contains discharge instructions for the patient to go to the public hospital.
As discussed, this transfer clearly violates the EMTALA transfer requirements. Receiving hospitals are obligated to report any suspected inappropriate transfers to CMS regional offices within 72 hours or risk termination of their Medicare provider agreements. In case 6, the public hospital has 72 hours to report this inappropriate transfer to CMS or risk termination of its authorization to receive Medicare reimbursement (4,28).
The Department of Health and Human Services bears overall responsibility for enforcing EMTALA. This supervisory duty is divided between two Department of Health and Human Services agencies. As indicated above, CMS is responsible for investigating alleged EMTALA violations. The Office of Inspector General is responsible for levying the fines after reviewing the CMS report of an alleged EMTALA violation.
When one of CMS's ten regional offices receives an EMTALA complaint judged worthy of investigation, the office refers the complaint to the respective state hospital-licensing agency, which forms a survey team to conduct the investigation. The team makes an unannounced investigation of the hospital (5), conducts a clinical review to determine whether the patient had an emergency medical condition that was not stabilized, and reviews the hospital's screening and stabilization procedures (4). CMS has adopted the position that the "clinical outcome of an individual's condition is not proper basis for determining whether an appropriate screening was provided or whether a person transferred was stabilized" (4).
CMS must provide the accused physician and hospital with a written report of its review, an opportunity to discuss the case, and an opportunity to offer additional information. CMS provides copies of the final report to the Office of Inspector General, the physician, and the hospital involved. The Office of Inspector General may impose monetary penalties on hospitals or physicians, including on-call physicians, of up to $50,000 for each determined violation. If the courts find that the violation is "gross and flagrant" or is repeated, CMS may terminate the physician's and the hospital's participation in Medicare (4).
Uphold EMTALA's whistleblower protection
Case 7. An ambulance pulls up to the curb of a public psychiatric hospital. Angered that her hospital has become the "final dumping ground," the attending psychiatrist instructs the psychiatric nurse to run out and tell the ambulance to go to another hospital. Aware that the ambulance has brought a patient to "hospital property," the nurse refuses to obey these instructions. The paramedics subsequently enter the hospital with the patient on the gurney. The attending psychiatrist then directs the clerical staff to determine whether or not the patient has a private doctor. The attending psychiatrist's directions are that if the patient has a private doctor, the staff is to send the patient to the hospital where that doctor has admitting privileges. The clerical staff inquires, "Aren't we obligated to provide a screening examination first?" The attending psychiatrist attempts to get both the nurse and the clerical staff fired the next day because of insubordination.
EMTALA protects "whistleblowers," or hospital employees who report an EMTALA violation: "A participating hospital may not penalize or take adverse action against a qualified medical person or a physician because the person or physician refuses to authorize the transfer of an individual with an [emergency medical condition] that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section" (5,29). EMTALA requires that the nurse and the clerical staff in case 7 be protected from recrimination by the hospital for disobeying the attending psychiatrist's illegal instructions and for reporting these instructions to their supervisors (29).