Patient Transfers: Stable Versus Unstable
Not all transfers between hospitals are subject to EMTALA. In fact, only patients who have an unstable EMC fall under the rules. Although the CMS interpretive guidelines and court decisions have confirmed that EMTALA does not apply to a patient in stable condition, surveyors of an EMTALA complaint may not understand the differences.
In addition, a professional review organization may be asked by the survey agency to determine whether the patient was in stable condition at the time of the transfer. Some states may have rules applicable to the transfer of patients in stable condition. For good patient care and medicolegal purposes, it is reasonable to follow the same guidelines for all transfer patients.For EMTALA purposes, a patient is considered in stable condition when the EMC that resulted in ED admission has resolved; however, the underlying medical condition may persist. The determination of the stability of a patient's condition is based on the reasonable clinical confidence of the treating physician or practitioner that the EMC no longer exists and there is no material risk of deterioration in the condition. The example for this given by CMS is a patient with an asthma exacerbation. Although the patient's acute attack is controlled (stabilized EMC), the underlying asthma still exists.
In psychiatric emergencies, CMS interpretive guidelines state that any patient expressing suicidal or homicidal thoughts or gestures or determined dangerous to self or others would be considered to have an EMC. Psychiatric patients would be considered in stable condition when they are protected and prevented from injuring or harming themselves or others. The use of chemical or physical restraints to affect a transfer may stabilize the psychiatric patient for a time and remove the immediate EMC, even though the underlying medical condition may persist.
Patients in unstable condition may be transferred because of medical need or the patient's (or surrogate's) request. A transfer for medical need is indicated when the hospital no longer has the capacity to perform the MSE (additional specialized equipment is needed) or stabilize an EMC (provide a higher level of care). Capacity includes staff, resources, and physician expertise. Higher level of care includes facilities with specialized units, staff and equipment (eg, pediatric intensive care unit, cardiac bypass, and neurosurgeon). A patient may request a transfer for any reason. Patients in unstable condition who request a transfer for economic reasons (eg, managed care plan) do so at their own risk.
The referring hospital is responsible for coordinating the transfer. EMTALA requires the transferring physician to certify in writing that at the time of the transfer:
1. the benefits of the transfer outweigh the risks;
2. the patient (or surrogate) has given informed consent for the transfer; and
3. an appropriate transfer has been arranged.
If a physician is not physically present in the ED at the time of the transfer, the certification may be signed by hospital-designated qualified medical personnel after consultation with the physician. The physician then will need to countersign the certification.
In documenting the benefits and risks, the physician should be as thorough as possible. Terms such as “Needs level I trauma care,” “No orthopedic services available,” or “High-risk L&D [labor and delivery] services required” clearly show specific medical needs. Description of risk should also be straightforward (eg, “Risk of deterioration or death) but more detailed than simply “Risk of ambulance ride.”
Informed consent should be obtained from the patient. If the patient is not capable of providing consent and no surrogate is available, the transfer may proceed under implied consent. Refusal to an appropriate transfer by the patient (or surrogate) should clearly be documented in the medical record.
Documentation should include details about the risks and benefits of the transfer that were explained to the patient (or surrogate) and an assessment of the patient's competency to make the decision. In this situation, the hospital's EMTALA obligation is complete.EMTALA does not require the transporting service to obtain a separate consent. Services should discuss with their legal counsel the advisability of having a separate transfer consent form. A separate form may be particularly useful for air transport services to affirmatively document that the patient or family is aware of the specific risks associated with air transport.
A separate certification form should be used. The form should include the following:
1. Description of the patient's diagnosis and condition
• No EMC
• Stable EMC (no material risk of deterioration during transfer)
• Unstable EMC (material risk of deterioration during transfer)
2. Reason for transfer (medical need, patient request, refusal or failure of on-call consultant to respond within a reasonable time)
3. Mode and method of and care during transport
4. Name, time, and date that accepting physician and/or authorized receiving hospital personnel agreed to the transfer
5. List of documentation being sent with patient
6. Vital signs before transfer
7. Signed informed consent for transfer
An appropriate transfer occurs when the:
1. transferring hospital has provided medical care within its capacity to minimize risk to the patient's health (or to the unborn child of a woman in labor),
2. receiving hospital has agreed to accept the patient and has the space and resources available for treatment,
3. transferring hospital sends available medical records with the patient, and
4. transfer is effected by qualified personnel and transportation equipment.
Care within capacity (see the definition earlier in this section) is different for each patient. Performing an MSE that determines that other services are needed may be the only service within a hospital's capacity for certain conditions.
Other care to minimize the risk to the patient's health can range from stabilizing airway, breathing, and circulation to the administration of medications and fluids.The transferring hospital must determine whether the potential receiving hospital has the resources available to care for the patient. For example, it would not be appropriate to transfer a patient with a severe head injury from a rural hospital ED without a computed tomography (CT) scanner or neurosurgeon to another hospital similarly situated. Hospitals with specialized services are required to accept transfers for patient's requiring those services if they have the capacity. Having the capacity has come to mean that if the hospital could care for a similar patient in its ED, it would have to accept the transfer.
A patient in unstable condition cannot be transferred to a particular hospital simply for economic reasons, whether insured or not. A health care plan cannot require a patient be transferred to a contracted or in-network facility during the MSE or if the treating facility is capable of stabilizing the EMC. Nor can the plan require the patient be transferred to a facility with less capability than medically needed by the patient. If there are 2 hospitals of equal capabilities and transport time and one is a plan in-network facility, the patient may choose based on the insurance. Lack of or delay in obtaining health care plan authorization cannot defer a transfer to an appropriate receiving hospital.
EMTALA does not require a physician to be the accepting party for the receiving hospital. In fact, it is up to the hospital to determine who can accept patients on its behalf (eg, physician, nurse, or admission clerk). For good patient care and other medicolegal reasons, it is prudent for the transferring physician to discuss the patient's condition with the receiving physician or health care team member.
At a minimum, a copy of the medical record including triage note, physician record, patient care staff notes; records of treatments, test results, and radiographs; and transfer certification and consent must be sent with the patient.
In situations in which the physician was not present at the time of the transfer, the record must include the name and address of the on-call physician who authorized the transfer. Some states may have additional requirements. A patient's transfer should never be delayed because of paperwork. Paper or electronic records may be faxed or sent by e-mail, and hard copy items (eg, radiographs) may be sent by courier. However, a record of the patient's most recent vital signs and status at the time of the transfer should be available to go with the patient.Transport teams should check that they have the appropriate documentation before loading the patient or be able to inform the receiving hospital about how the records will be delivered. Delivery of the records should be documented by written receipt from the receiving staff or at least by notation in the transport record. Specific transport documentation is not required by EMTALA, but a copy of the transport record should be given to the receiving hospital.
The term qualified personnel and transportation equipment is not defined by EMTALA. The level of training and mode of transport should be consistent with the needs of the patient. The referring physician and hospital may be held liable for using inappropriate transport services. In Burditt v U.S. Department of Health and Human Services (934 F2d 1362 [5th Cir 1991]), the court ruled that an obstetrician as well as a fetal monitor was required to transport a hypertensive pregnant patient to a receiving hospital 170 miles away. Although transferring a patient by private vehicle per se is not an EMTALA violation, it would be difficult to defend as an appropriate mode of transport for a patient in unstable condition.
It is important to remember that it is ultimately the referring physician’s responsibility to determine the scope of the MSE, the existence and/or stabilization of an EMC, and the appropriate receiving facility and level and mode of transport for the patient.