Emergency Medical Treatment and Labor Act ^87

In 1986, Congress first enacted legal requirements specifying how Medicare­participating hospitals with emergency services must handle individuals with emergency medical conditions or women who are in labor.

Requirements for an Appropriate Medical Screening Examination

Federal law requires that all Medicare-participating hospitals with emer­gency services must provide an “appropriate medical screening examina­tion” for any individual who requests an examination or treatment for an emergency medical condition anywhere on the hospital property. This examination must be made within the capability of the hospital’s emer­gency department, including ancillary services routinely available to the emergency department. For example, “[i]f a hospital has a department of obstetrics and gynecology, the hospital is responsible for adopting proce­dures under which the staff and resources of that department are available to treat a woman in labor who comes to its emergency department.”

Medical screening examinations also must “...be conducted by indi­viduals determined qualified by hospital by-laws or rules and regulations.” Thus, it is up to a hospital to designate who is a “qualified medical person” to provide an appropriate medical screening examination. The law does not require that physicians perform all screening examinations. Therefore, a hospital can determine under what circumstances a physician is required to provide medical screening and when screening can be done by a non­physician.

Determining Whether a Patient Has an Emergency Medical Condition

The legal definition of emergency medical condition is not the same as the medical one.

“A medical condition manifesting itself by acute symptoms of suf­ficient severity (including severe pain, psychiatric disturbances and/ or symptoms of substance abuse) such that the absence of immediate attention could reasonably be expected to result in—

• 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;

• Serious impairment to bodily functions; or

• Serious dysfunction of any bodily organ or part.”

It is important to note that with pregnant women, the health of the fetus also must be considered in determining whether an emergency medical condition exists.

Special Determination of Emergency Medical Condition for Pregnant Women

The definition of emergency medical condition also makes specific refer­ence to a pregnant woman having contractions. It provides that an emer­gency medical condition exists if a pregnant woman is having contractions and “...there is inadequate time to effect a safe transfer to another hospital before delivery; or that transfer may pose a threat to the health or safety of the woman or the unborn child.” An emergency medical condition does not exist even when a woman is having contractions as long as there is adequate time to effect a safe transfer before delivery and the transfer will not pose a threat to the health or safety of the mother or fetus.

The Centers for Medicare & Medicaid Services (formerly, the Health Care Financing Administration) has interpreted the definition of labor as “the process of childbirth beginning with the latent phase of labor or early phase of labor and continuing through delivery of the placenta.” A woman experiencing contractions is in true labor unless a physician, certified nurse-midwife, or other qualified medical person acting within his or her scope of practice as defined in hospital medical staff bylaws and state laws certifies after a reasonable time of observation that the woman is in false labor.

Patients With Emergency Medical Conditions

Once a patient comes to an emergency department, is appropriately screened, and is determined to have an emergency medical condition, the physician has two choices as to how to proceed:

1. Treat the patient and stabilize her condition.

2. Transfer the patient to another medical facility in accordance with specific procedures outlined in a later section.

In situations in which the woman is experiencing contractions and meets the other aforementioned outlined criteria for an emergency medical con­dition, the only way to stabilize the patient is to deliver the child and the placenta.

Patients Can Refuse to Consent to Treatment

If a patient refuses to consent to treatment, the hospital has fulfilled its obligations under the law. If a patient refuses to consent to treatment, however, the following three steps must be taken:

1. The patient must be informed of the risks and benefits of the exami­nation, treatment, or both.

2. The medical record must contain a description of the examination and treatment that was refused by the patient.

3. The hospital must take all reasonable steps to secure the patient’s written informed refusal. The written document must indicate that the person has been informed of the risks and benefits of the exami­nation, treatment, or both.

Procedures to Follow for Transferring a Patient to Another Medical Facility

In general, a patient who meets the criteria for an emergency medical condition may not be transferred until the patient is stabilized. There are, however, some exceptions to this prohibition.

The patient may request a transfer, in writing, after being informed of the hospital’s obligations under the law and the risks of transfer. The unsta­bilized patient’s written request for transfer must indicate the reasons for the request and that the patient is aware of the risks and benefits of transfer.

An unstabilized patient also may be transferred if a physician signs a written 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 or, in the case of a woman in labor, to the woman or the unborn child, from being transferred.

If a physician is not physically present in the emergency department at the time of the transfer of a patient, a qualified medical person can sign the certification described previously after consulting with a physician who authorizes the transfer. The physician must countersign the certification later.

Patients Can Refuse to Consent to Transfer

If the hospital offers to transfer a patient in accordance with the appropri­ate procedures and the patient refuses to consent to transfer, the hospital also has fulfilled its obligations under the law. When a patient refuses to consent to the transfer, the hospital must take the following three steps:

1. The patient must be informed of the risks and benefits of the transfer.

2. The medical record must contain a description of the proposed trans­fer that was refused by the patient.

3. The hospital must take all reasonable steps to secure the patient’s written informed refusal. The written document must indicate that the person has been informed of the risks and benefits of the transfer and the reasons for the patient’s refusal.

Additional Requirements of the Transferring and Receiving Hospitals

The transferring hospital must comply with the following three require­ments to ensure that the transfer was appropriate:

1. The receiving hospital must have space and qualified personnel to treat the patient and must have agreed to accept the transfer. A hos­pital with specialized capabilities, such as a neonatal intensive care unit, may not refuse to accept patients if space is available.

2. The transferring hospital must minimize the risks to the patient’s health, and the transfer must be executed through the use of qualified personnel and transportation equipment.

3. The transferring hospital must send to the receiving hospital all medi­cal records related to the emergency condition available at the time of transfer. These records include available history, records related to the emergency medical condition, observations of signs or symptoms, a preliminary diagnosis, results of diagnostic studies or telephone reports of the studies, reports of treatment provided, results of any tests and the informed written consent or certification, and the name of any on-call physician who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment.

General Requirements

The following seven general requirements should be met:

1. Medical records related to transfers must be retained by the transfer­ring and receiving hospitals for 5 years from the date of the transfer.

2. Hospitals are required to report to the Centers for Medicare & Medicaid Services or the state survey agency within 72 hours from the time of the transfer any time they have reason to believe they may have received a patient who was transferred in an unstable medical condition.

3. Hospitals are required to post signs in areas, such as entrances, admit­ting areas, reception areas, and emergency departments, with respect to their obligations under the patient screening and transfer law.

4. Hospitals also are required to post signs stating whether the hospital participates in the Medicaid program under a state-approved plan. This requirement applies to all hospitals, not only the ones that par­ticipate in Medicare.

5. Hospitals must keep a list of physicians who are on call after the ini­tial examination to provide treatment to stabilize a patient with an emergency medical condition.

6. Hospitals must keep a central log of all individuals who come to the emergency department seeking assistance and the result of each indi­vidual’s visit.

7. A hospital may not delay providing appropriate medical screening to inquire about payment method or insurance status.

Enforcement and Penalties

Physicians and hospitals violating these federal requirements for patient screening and transfer are subject to civil monetary penalties of up to $50,000 for each violation and to termination from the Medicare program. Hospitals are prohibited from penalizing physicians who report violations of the law or who refuse to transfer an individual with an unstabilized emergency medical condition.