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Reducing Risk Under the Emergency Medical Treatment and Active Labor Act (EMTALA)

by Ryan J. King, Esquire

Passed in 1986, the Emergency Medical Treatment and Active Labor Act (EMTALA) was intended to prevent emergency departments (EDs), and other emergency care providers, from denying treatment to patients based upon their insurance coverage (or lack thereof) or their inability to pay. While EMTALA serves an important role, it also presents many challenges for emergency care providers and administrators. The law imposes civil penalties for violations, and it gives patients who are denied care a private cause of action to sue. In certain circumstances, other healthcare providers that are harmed by EMTALA violations can sue violating emergency care providers as well.

What do you need to know? The following answers some key questions about EMTALA, and offers guidance for compliance.

5 Key Questions About EMTALA Answered

Which Healthcare Providers are Subject to EMTALA?

EMTALA applies to four primary types of healthcare providers:

• Medicare-participating hospitals that have EDs
• Other hospitals that provide emergent care on an urgent basis
• Hospital-owned offsite urgent care facilities, and
• Physicians (including on-call physicians) that work for any of the above

When Does EMTALA Apply?

In order for a patient to be covered under EMTALA, he or she must have an emergency medical condition (EMC). The statute defines this term to include any condition that will result in any of the following without immediate medical care:

  • Placing the patient or an unborn child’s health in serious risk
  • Serious impairment of a bodily function
  • Serious dysfunction of any organ or body part
  • Insufficient time to transfer a woman with contractions to another facility

When Does EMTALA Not Apply?

If none of the foregoing risks are present, then EMTALA does not apply. Of course, in many cases, it will not be possible to assess a patient’s risk effectively without conducting screening (for which the patient and/or its insurer would ordinarily be billed). This presents one of the main compliance challenges under EMTALA.

The courts have also made clear that EMTALA is not a medical malpractice statute, and it does not apply if the patient really has a “garden variety medical malpractice cause of action.” For example, in one case, the court denied EMTALA protection to a patient whose esophagus was perforated during an elective C-spine procedure. Even though the patient suffered permanent injuries as a result of not receiving necessary emergency care, the court ruled that EMTALA did not apply because his visit to the hospital originated as an elective inpatient procedure.

What Acts are Prohibited By EMTALA?

EMTALA prohibits emergency care providers from “dumping” patients who do not have health insurance or “parking” them for extended or indefinite periods of time without treatment. Additional prohibitions under the statute include:

  • Transferring, discharging or refusing treatment to patients with EMCs because they cannot afford to pay
  • Delaying treatment because of a patient’s actual or perceived inability to pay (including delaying treatment while questioning a patient about his or her ability to pay)
  • Providing lesser care to a patient because of an actual or perceived inability to pay, and
  • Failing to stabilize, treat or transfer a patient with an EMC (or delaying stabilization, treatment or transfer) based on an actual or perceived inability to pay

What are the Costs of Non-Compliance?

In civil litigation under EMTALA, patients can seek a full recovery of their losses resulting from improper treatment, transfer delays and denials. Additionally, in some instances, medical providers that treat patients who have been refused care can sue the offending entity for their financial losses. In EMTALA enforcement actions, potential penalties include:

  • Hospitals with more than 100 beds – Up to $106,965 per violation
  • Hospitals with less than 100 beds – Up to $53,484 per violation
  • Physicians – Up to $53,484 per violation
  • Flagrant or repeat violations – Medicare exclusion

10 Tips for Complying with EMTALA

With all of the above in mind, hospitals, offsite urgent care facilities, and physicians need to be aware of their obligations under EMTALA, and they must take affirmative steps to comply. Some examples of necessary compliance efforts include:

  • Providing EMTALA training to relevant personnel
  • Ensuring that all relevant personnel are familiar with the facility’s screening protocols and know where to find the facility’s policies and procedures
  • Ensuring that all patients are screened by qualified personnel
  • Providing uniform quality screenings for all patients within the facility’s capabilities
  • Avoiding consideration of a patient’s ability to pay (actual or perceived) when performing triage
  • Avoiding any delays in screening while assessing a patient’s insurance coverage or ability to pay
  • Charting all patient screenings thoroughly
  • Treating (or stabilizing and transferring) all patients diagnosed with EMCs promptly
  • Providing uniform quality treatment for all patients, regardless of their actual or perceived ability to pay
  • Providing treatment at a level consistent with the capabilities of the facility and its staff

If you have questions about your hospital’s or urgent care facility’s obligations under EMTALA, we invite you to speak with Ryan King, Esquire in our Healthcare and Long-Term Care Practice Group.