Section 2 Emergency Medical Treatment and Active Labor Act

• Library: Mental Health 2006

If a patient presents to a hospital with an emergency department or to a hospital that offers emergency services for medical, psychiatric, or substance abuse emergency conditions, such as a psychiatric hospital, the patient must be examined and treated in accordance with the Emergency Medical Treatment and Active Labor Act (EMTALA). Congress passed EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82, which became effective August 1, 1986. Pub. L. No. 99-272, § 9121, 100 Stat. 164-67 (1986) (codified at 42 U.S.C. § 1395dd); see also 42 C.F.R. § 489.24. EMTALA was enacted in response to reports of a widespread practice of “patient dumping.” EMTALA imposes two fundamental requirements on hospitals with regard to patients requesting emergency care.

First, the hospital must conduct an appropriate medical screening examination to determine if an emergency medical condition exists. 42 C.F.R. § 489.24(a). “[E]mergency medical condition” means a condition requiring acute care hospitalization because the patient has acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in:

1. Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy
2. Serious impairment to bodily functions; or
3. Serious dysfunction of any bodily organ or part; or

2. With respect to a pregnant woman who is having contractions—

(i) That there is inadequate time to effect a safe transfer to another hospital before delivery; or

(ii) That transfer may pose a threat to the health or safety of the woman or the unborn child.

42 C.F.R. § 489.24(b).

Emergency medical condition includes:

• the lack of a diagnosis
• severe pain
• acute substance abuse
• suicidal and homicidal ideations; and
• physical, sexual, and emotional abuse.

Second, if the hospital determines that an emergency medical condition exists, it must either provide the treatment necessary to resolve the emergency medical condition or appropriately transfer the patient. If the patient’s emergency medical condition cannot be treated at the hospital, arrangements must be made for the transfer of the patient to a hospital that has the capabilities needed by the patient and available space. An “appropriate transfer” as defined under EMTALA includes the following:

• The transferring hospital provides the medical treatment within its capacity that minimizes the risks to the patient’s health.

• The receiving facility has available space and qualified personnel for the treatment of the patient and has agreed to accept transfer of the patient and to provide appropriate medical treatment.

• The transferring hospital sends to the receiving facility copies of all medical records related to the emergency medical condition for which the patient has presented, available at the time of the transfer, which includes the name and address of any on-call physician who, when requested, has refused or failed to appear within a reasonable time to provide an examination or stabilizing treatment.

• The transfer is effected through qualified personnel and transportation equipment, including the use of necessary and medically appropriate life support measures during the transfer.

42 C.F.R. § 489.24(e)(2).

EMTALA further provides that a hospital may not delay the provision of an appropriate medical screening examination or treatment of an emergency medical condition to inquire about a patient’s method of payment. 42 C.F.R. § 489.24(d)(4). Any delay because of attempting to obtain pre-authorization to examine or treat a patient is a violation of EMTALA.

If a hospital or physician does not fulfill EMTALA’s requirements, the Centers for Medicare & Medicaid Services (CMS), formerly known as the Health Care Financing Administration, has the authority to terminate a hospital’s Medicare and Medicaid provider agreements, while the United States Department of Health and Human Services, Office of the Inspector General (OIG) has the authority to exclude physicians from participation in the Medicare and Medicaid programs. Additionally, the OIG may impose civil monetary penalties on both hospitals and physicians. 42 U.S.C. § 1395dd(d)(1). The maximum penalty for physicians and hospitals with 100 beds or more is $50,000 for each violation, with a maximum penalty of $25,000 per violation for hospitals with fewer than 100 beds. Additionally, an individual who suffers harm as a result of an EMTALA violation may sue the hospital for damages. 42 U.S.C. § 1395dd(d)(2). Therefore, hospital employees, medical staff members, and independent contractors must be very familiar with EMTALA and with the policies and procedures within the hospital that implement the requirements of EMTALA.

The responsibilities under EMTALA are in addition to any state responsibilities, such as for involuntary commitments. If a patient presents to a hospital and is determined to meet the criteria for a civil detention and the hospital does not have the mental health services that are needed by the patient, the patient must be transferred in accordance with EMTALA requirements. For example, although under Missouri law, if the mental health coordinator or a mental health professional initiates the involuntary commitment, public mental health facilities are obligated to accept the transfer of the patient, under EMTALA, the facility must be contacted in advance of the patient leaving the hospital and specifically agree to accept the transfer. Thus, even if the police arrive to transport a patient, the transfer must be made meeting all EMTALA requirements, including:

• completion of the necessary documents;
• prior agreement of the receiving hospital to accept the patient;
• appropriate medical records sent with the patient; and
• verification that transport by the police is appropriate based on the patient’s condition.

There is also a duty imposed on hospitals that have specialized capabilities or facilities to not refuse to accept the transfer of a patient who requires these services. 42 C.F.R. § 489.24(f). This provision has been very broadly interpreted by CMS to include on-call physicians in a specialty that is not available at the transferring hospital. A hospital with such specialized services that refuses to accept a patient transfer is also subject to the potential fines and penalties as any other hospital for noncompliance with EMTALA.

EMTALA requires a hospital to report to CMS if it receives a patient with an emergency medical condition who has been inappropriately transferred from another hospital. 42 C.F.R. § 489.20(m). An inappropriate transfer means the failure to meet any of the following requirements:

• Written consent of the patient to the transfer if the patient has requested transfer after being informed of the potential risks of the transfer, or a signed certification of transfer that includes a summary of the risks and benefits, and that the medical benefits reasonably expected from the provision of medical treatment at the receiving hospital outweigh the risks

• The agreement of a person on behalf of the receiving hospital to accept the transfer before the transfer occurred

• Verification that the receiving hospital has available space and qualified personnel for treatment of the patient

• Copies of all medical records available at the time of transfer related to the emergency medical condition sent with the patient

• As soon as practicable, copies of all other pertinent medical records concerning the patient sent to the hospital

• Transfer with qualified personnel and transportation, including life support measures

42 C.F.R. § 489.24(e).

(§5.3) Nondiscrimination

All persons within Missouri are “entitled to the full and equal use and enjoyment . . . of any place of public accommodation . . . without discrimination or segregation on the grounds of race, color, religion, national origin, sex, ancestry, or disability.” Section 213.065.1, RSMo 2000. “Places of public accommodation” include “[a]ny public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds.” Section 213.010(15)(e), RSMo 2000. Hospitals would, therefore, be considered “places of public accommodation.” More specifically:

[N]o mental health facility or mental health program in which people may be civilly detained . . ., and no residential facility, day program or specialized service operated, funded or licensed by the department [of Health] shall deny admission or other services to any person because of his race, sex, creed, marital status, national origin, disability or age.

Section 630.200, RSMo 2000.

Under Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “Program” and “activity” are broadly defined such that if a corporation provides health care services and receives federal financial assistance, the entire corporation is covered by the Civil Rights Act of 1964, not just the division receiving federal funds. Most hospitals and other health-related institutions are the recipients of federal financial assistance through the Hospital Survey and Construction Act (Hill-Burton Act), 60 Stat. 1040, and the Medicare and Medicaid programs, and thus are required to comply with the anti-discrimination provisions of Title VI.

Two other federal laws, § 504 (29 U.S.C. § 794) of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, and the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327, prohibit...