Physicians in private practice, or office-based physicians, are subject to the Emergency Medical Treatment and Labor Act, known as EMTALA, if they have privileges or are on-call for a Medicare-participating hospital with an emergency department. EMTALA was enacted by Congress in 1986 to prevent individuals seeking emergency care from being turned away because of an inability to pay. EMTALA requires all Medicare-participating hospitals with an emergency department to provide individuals seeking emergency services with a medical screening exam (MSE) to identify any emergency medical conditions (EMC), which includes active labor. The hospital must then stabilize any EMC identified before it may transfer the individual to another facility for care. A hospital that does not have the capability to stabilize an identified EMC may transfer the individual to another facility without violating EMTALA as long as it follows the Act’s rules for un-stabilized transfers (see below).
EMTALA defines an emergency medical condition as a condition that manifests itself by acute severe symptoms, including severe pain, such that the absence of immediate medical attention could reasonably be expected to:
In the case of a pregnant woman who is having contractions, an emergency medical condition exists if there is inadequate time to safely transfer her to another hospital before delivery, or if the transfer poses a threat to the health or safety of the woman or her unborn child.
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The hospital must provide individuals seeking emergency care with an appropriate MSE within the capability of the hospital’s emergency department. The MSE must be performed without delay to inquire about business issues such as method of payment or insurance pre-authorizations. EMTALA also dictates that the MSE to determine if an EMC exists must be performed by a qualified medical person. Who is considered qualified medical personnel is left up to the hospital’s discretion, and can include non-physician practitioners. However, it is important to note that triage of the individual seeking emergency care does not satisfy the EMTALA requirements for an MSE, and that the Act ultimately holds physicians accountable for medical screening exams given to individuals seeking emergency care. EMTALA requires the hospital to designate which health care providers are qualified to perform an MSE in its bylaws, or in the rules and regulations that govern medical personnel that are approved by the hospital’s governing body.
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If the individual has an EMC, EMTALA requires the individual be stabilized before he or she is transferred to another facility for care. Stabilized under the Act means that the individual must be provided with medical treatment for the EMC so that no material deterioration of the condition is likely to result from, or occur during, the individual’s transfer to another facility. For pregnant women in active labor, stabilized means that the woman has delivered both the baby and the placenta.
Once the EMC of an individual seeking emergency care has been stabilized, EMTALA has been satisfied, and he or she may be transferred to another facility for care.
The transfer of an unstabilized individual can occur if the individual, or a legally responsible person acting on the individual’s behalf, requests the transfer in writing after he or she is informed of both the risks of the transfer and the hospital’s obligation to provide additional examination and treatment.
An unstabilized person may also be transferred if a physician certifies in writing that the medical benefits of the transfer outweigh the risks. An unstabilized person may not be transferred in a manner, or to a facility, that does not satisfy EMTALA’s additional requirements for an appropriate transfer (see below).
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EMTALA considers an appropriate transfer to have occurred when:
A physician will not violate EMTALA if he or she offers an individual treatment, or offers to transfer an individual to another facility for appropriate treatment, but the individual refuses treatment or refuses to consent to the transfer. The physician must be sure to explain the risks and benefits of the treatment or transfer to the individual refusing either care or transfer to another facility. The physician should also document the individual’s refusal to consent to treatment or transfer, including having the individual sign a formal statement memorializing the refusal.
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In addition to the penalties under EMTALA for hospitals that violate the Act’s provisions, a physician who violates the Act is subject to a civil monetary penalty up to $50,000 for each violation. Note, per violation means per violation of the Act’s provision, not per individual seeking emergency medical treatment. Multiple violations of the Act can result from a single individual who presents to the emergency department seeking treatment. A physician’s failure to provide an individual with a medical screening exam, stabilizing treatment (when possible), or an appropriate transfer may result in several violations. It is also important to note that an individual does not have to experience an adverse medical outcome for a violation of EMTALA to have occurred.
A physician may be excluded from participation in federal healthcare programs if he or she participates in an action that grossly or flagrantly violates EMTALA. Gross or flagrant violations include signing a certification alleging that the medical benefits of a transfer to another facility outweigh the risks associated with that transfer when the physician knows, or should have known, that the benefits did not outweigh the risks. Misrepresenting an individual’s condition when transferring him or her to another facility for care is also considered a gross or flagrant violation under the Act.
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