By Shannon Britton
Hartsfield

The U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) have started a new effort to educate the public about the Emergency Medical Treatment and Labor Act (EMTALA), sometimes referred to as the “anti-dumping” law. Enacted in 1986, EMTALA was intended to prevent “patient dumping,” a colloquial term for the transfer of uninsured patients to other hospitals or healthcare facilities for strictly financial reasons.

EMTALA applies to all hospitals that receive any Medicare funding. The law gives all patients certain rights, regardless of whether they are Medicare beneficiaries or not. Specifically, these rights under EMTALA include:

Screening: If someone comes to a hospital emergency department asking for care, the hospital must determine whether an emergency exists by providing an appropriate medical screening exam (MSE) and maintaining a central log of those individuals seeking treatment. Hospitals may not delay an appropriate medical screening exam or further medical examination and treatment in order to ask about the individual’s insurance status or payment source.

Stabilization: For a patient with an emergency medical condition, the hospital must provide treatment as needed to stabilize the patient. If the hospital does not have the capacity to treat the patient and a transfer is appropriate, medically indicated and documented, the hospital must provide the care necessary to ensure, within a reasonable medical probability, that no material deterioration is likely to result from or occur during a transfer. Stabilization includes delivery of the baby and placenta for pregnant patients. There is litigation pending and a preliminary injunction in place challenging CMS statements that stabilization may include abortion services.

Necessary transfers: Patients with unstable emergency medical conditions cannot be transferred unless a physician or “qualified medical person” at the hospital decides that the risk of transfer is outweighed by the benefits of treatment at a hospital offering higher levels of care. Hospitals with specialized capabilities and sufficient capacity must accept transfers from hospitals that lack the capability to treat an emergency medical condition.

EMTALA violations can result in civil monetary penalties, civil enforcement, a hospital’s termination from Medicare or a physician’s exclusion from Medicare and Medicaid.

In addition to providing new educational resources to the public, HHS and CMS plan to provide hospitals and provider associations with EMTALA training materials and discuss best practices with these stakeholders. HHS also plans to establish a team of experts to support hospitals in complying with their EMTALA obligations.

CMS has a new webpage that provides individuals with an explanation of their rights under EMTALA. The site provides instructions regarding how to file a complaint for noncompliance and includes a link to state survey agencies that can receive complaints. In the event this new education initiative leads to more patient complaints regarding potential EMTALA violations, hospitals can lower risks of noncompliance by reviewing their EMTALA compliance programs to ensure that they conform to applicable laws and rules.

Shannon Britton Hartsfield is a partner in Holland & Knight’s Tallahassee, Florida, office.