Emergency Medical Treatment & Labor Act
In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.
The Basic Concept
Hospitals that participate in the Medicare program must provide a medical screening exam to determine if the patient is in an emergency medical condition (EMC) and if so must be provided stabilizing treatment or transfer
- Provided to any person who comes to the ED requesting emergency services
- Passed to prohibit hospitals from denying care to women in labor
How it All Started: The First Case
January 28, 1985 • Eugene Barnes, 32 year old male presented to Brookside Hospital Emergency Department in California • Mr. Barnes had a penetrating stab wound to scalp and the on-call Neurosurgeon refused to come to the hospital • ED physician called 3 other hospitals who also refused to take Mr. Barnes • SF General accepted the transfer 4 hours after initial presentation • Mr. Barnes died.
- Hospital must maintain a list of physicians who are on-call
- The hospital has to keep the list of physicians who are on-call to provide necessary treatment to stabilize a patient with an Emergency Medical Condition
- This on-call requirement applies to hospitals without an ED if they have specialized capabilities (Ortho Hospital)
- Staff must be aware of who is on-call including specialists and sub-specialists
- The on-call list must be composed of physicians who are members of the medical staff and who have hospital privileges
- ED physician can call the on-call physician for consultation and oncall physician does not have to show up if not requested
- The hospital has direct liability (not vicarious liability) if harm comes to a patient due to a failure of the on-call system to work
- Physicians who are on call are not representing their office practice when they are on call, they are representing the hospital
- The on-call physician must immediately be required to notify the ED or hospital promptly if he or she becomes unable to respond when on call
- CMS does not have a specific requirement regarding how frequent physicians have to be on call
- CMS uses the “relevant factor test”
- This would include number of physicians on the medical staff, other demands of physicians, number of times requiring stabilizing services of the on-call physician, vacations, and conferences –
- Hospital does a significant number of cardiac catheterization and holds itself out as a center of excellence so CMS would expect 24 hour coverage
CMS Recommends to Hospitals
- Have an On-Call policy
- Clearly delineate the responsibilities of the on-call physician to respond, exam, and treat
- Address the steps to follow if on-call physician can not respond due to circumstances beyond their control
- Clarify that if on-call physician is requested to come to the ED and refuses, it is a violation against both the physician and the hospital
- Clarify that it is a violation if the physician refused to come within a reasonable time
Community Shared Call
- If hospital participated in community call must include the names of the physicians pursuant to this plan
- Hospitals need to provide sufficient on-call physicians to meet the needs of the community
- The plan for community call must clearly articulate which on-call services will be provided and when
- Sending hospital must still conduct a medical screening examination and stabilize within its capability and capacity if the patient has an emergency medical condition
- Hospitals participating in community call plan must still accept appropriate transfers from hospitals not participating in the plan
- All Medicare participating hospitals must fulfill their EMTALA obligation whether participating in a community call plan or not
- EMTALA does not apply to pre-hospital setting or paramedics in the field but good to educate them on this
- Updates to the community call plan must be communicated to EMS providers so they include the information in their protocols
- Hospitals can permit physicians if they want to be on call at two or more facilities
- Hospitals have to be aware and agree to this
- Hospitals must have a policy and procedure on this • Staff will follow the written policy and procedure if on-call is not available when called to another hospital
- Back up plan might be to transfer the patient to the next appropriate hospital
Scheduled Elective Surgery
- Hospital can decide if they will allow on-call physician to do elective surgery or elective procedures
- Hospitals need to have policy and procedure on this
- Hospital must have back up plan in case on-call physician is not available
Medical Staff Exemptions
- No requirement that all the physicians on the MS must take call
- For example, a hospital may exempt a senior physician (over 60) or physicians who have been on the staff for over 20 years
- However, can not permit physicians to selectively take call
- Hospital needs to ensure adequate call schedule
- Who decides if the on-call specialist has to come in to see a patient? The Emergency Room physician who has eyes on the patient EMTALA places the decision power with the physician with eyes on the patient. Response is not negotiable or debatable.
- If your Hospital has “specialized capabilities” does your Emergency Department have to accept a transfer from a hospital who does not have the capabilities? Yes, and depends. EMTALA requires any hospital with specialized capabilities greater than those of the sending hospital to accept all such patients in transfer, regardless of their means or ability to pay. The on-call physician is deemed to be within the capabilities of the hospital, and therefore, must accept unless there literally is not one more space to put the patient, or some other reason exists, such as non-functional equipment, that makes it impossible to deliver the needed service.
- Can you put a “group or practice” name on the call schedule to show who is on-call? EG: Cardiology: Smithfield Cardio Associates – No. CMS requires that individual physician names and direct contact information be available to specifically identify and provide contact information for the individual physician actually on call. Changes in the list must be updated PRIOR to a request for an on-call physician is placed.
- Can your “admitting” department talk to the patient about if they have insurance or have a co-payment before being seen by an Emergency Room Physician? No. EMTALA requires services to be rendered regardless of means or ability to pay. Where evaluation or stabilizing care, including surgery, is not complete, EMTALA prohibits seeking advance approval from insurance companies or plans. This rule, however, does not require the payer to make payment for the services. Hospital cannot request payment or co-pays until after an appropriate medical screening exam (MSE) is done and the emergency medical condition (EMC) is stabilized.
- Can you evaluate an emergent patient who is under the age of 18 without consent? Yes. A medical screening examination and any medical care necessary and likely to prevent imminent and significant harm to the pediatric patient with an emergency medical condition should not be withheld or delayed because of problems obtaining consent.
- Can you tell a patient in the parking lot of your hospital that is suspected to have EBOLA that they must go to an EBOLA approved treatment facility before being evaluated? No. Every hospital, including Critical Access Hospitals, with a dedicated emergency department, must conduct an appropriate medical screening examination on all patients coming to the ED. This includes patients suspected of having been exposed to Ebola. All EDs are expected to be able to apply appropriate Ebola screening. And if necessary to isolate and notify state agency.
- Can you use Telemedicine to evaluate an Emergent patient? Depends. The Center for Medicare & Medicaid Services welcomes use of Telemedicine by Critical Access Hospitals: Telemedicine has great potential to expand availability of specialty care services, including emergency medicine services, to rural populations. However, misconceptions about Critical Access Hospitals Condition of Participation and EMTALA requirements may cause unnecessary concerns about, or create barriers to, using telemedicine. The Critical Access Hospitals Emergency Services Condition of Participation does not require a physician to appear on-site whenever an individual comes to the emergency department.
- If your Emergency Department is on diversion for Neurology, and a patient shows up at your facility with a possible Stroke can you immediately transport them without an evaluation to another facility? No. EMTALA requires physicians to render care within their privileges, not their scope of usual practice. The physician specialist must come in and justify in writing any transfers and effect the transfer. If beyond the privileges of the physician, CMS expects the physician to come in, evaluate, and arrange transfer if appropriate services are not available.
- If you are the on-call physician do you have to evaluate an emergent patient that you have a restraining order against? Yes. I am aware of at least one case where a patient had assaulted several hospital personnel and the hospital obtained a restraining order against the patient. However, because federal law supersedes state law and despite the restraining order, this patient had to receive care anytime he presented to the ED. So, whether they are discharged from your practice or a patient who owes you thousands of dollars, they are still entitled to your services when you are on-call for the ED.
- If you are on-call at two hospitals can you ask that the patient be transferred to the facility that you are currently working at? No. EMTALA requires all care to be rendered in the hospital where the patient presents. The only circumstances where the request to transfer would be valid would be if the needs of the patient could not be met in timely fashion where the patient presented, and the requested transfer would allow more timely intervention for patient safety and response of the on-call physician was not possible (i.e. currently involved in surgery).