Emergency medical services privacy act

Emergency Physicians’ Duty to Care for Anyone, Anytime

A patient is typically required to provide insurance and payment information before seeing a doctor. But, emergency departments are unique—anyone who has an emergency must be treated or stabilized, regardless of their insurance status or ability to pay. The patient protection that makes this possible is a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA).

Emergency physicians are firmly committed to providing care for everyone who needs it, otherwise many patients would go without treatment.

But a large portion of the care provided by emergency physicians goes uncompensated and under-compensated, frequently leaving the doctors with unrecouped losses that add layers of complexity and resource constraints to an already difficult job.

EMTALA and Reproductive Health

The overturning of Roe v. Wade creates worrisome ambiguity around physicians’ duty to patients under EMTALA. New state laws that restrict access to reproductive health care or services could directly conflict with existing federal EMTALA obligations to provide care, which could put emergency physicians in an impossible position where they must choose between their patient’s health or their own exposure to liability, which in some states could be criminal charges.

Emergency physicians are working to untangle and assess the vast implications and worrisome ambiguity resulting from the Supreme Court’s decision.

Emergency physicians are currently analyzing medical liability, medical record and personal health data security, and other areas of uncertainty to develop recommendations to help address gaps in regulations or statutes that could create clinical and legal barriers to how emergency physicians practice emergency medicine.

Find more resources here.

What is EMTALA?

EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd).

EMTALA was designed to prevent hospitals from transferring uninsured or Medicaid patients to public hospitals without, at a minimum, providing a medical screening examination to ensure they were stable for transfer.

This law requires Medicare-participating hospitals with emergency departments to screen and treat the emergency medical conditions of patients in a non-discriminatory manner to anyone, regardless of their ability to pay, insurance status, national origin, race, creed or color.

How does EMTALA define an emergency?

An emergency medical condition is defined as "a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs."

What is EMTALA's scope?

• According to the law, EMTALA applies when an individual "comes to the emergency department."
• CMS defines a dedicated emergency department as "a specially equipped and staffed area of the hospital used a significant portion of the time for initial evaluation and treatment of outpatients for emergency medical conditions." This means, for example, that hospital-based outpatient clinics not equipped to handle medical emergencies are not obligated under EMTALA and can simply refer patients to a nearby emergency department for care.

What are the provisions of EMTALA?

Physicians can get penalized for refusing to provide necessary stabilizing care for an individual presenting with an emergency medical condition or facilitating an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition.

Hospitals have three main obligations under EMTALA:

1. Any individual who comes and requests must receive a medical screening examination to determine whether an emergency medical condition exists. Examination and treatment cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments also must post signs that notify patients and visitors of their rights to a medical screening examination and treatment. Signage that could deter patients from seeking emergency care could be an EMTALA violation.
2. If an emergency medical condition exists, treatment must be provided until the emergency medical condition is resolved or stabilized. If the hospital does not have the capability to treat the emergency medical condition, an "appropriate" transfer of the patient to another hospital must be done in accordance with the EMTALA provisions.
3. Hospitals with specialized capabilities are obligated to accept transfers from hospitals who lack the capability to treat unstable emergency medical conditions.

A hospital must report to CMS or the state survey agency any time it has reason to believe it may have received an individual who has been transferred in an unstable emergency medical condition from another hospital in violation of EMTALA

What are the requirements for transferring patients under EMTALA?

• EMTALA governs how patients are transferred from one hospital to another. Under the law, a patient is considered stable for transfer if the treating physician determines that no material deterioration will occur during the transfer between facilities.
• EMTALA does not apply to the transfer of stable patients; however, if the patient is unstable, then the hospital may not transfer the patient unless:
  • A physician certifies the medical benefits expected from the transfer outweigh the risks OR
  • A patient makes a transfer request in writing after being informed of the hospital's obligations under EMTALA and the risks of transfer.
  • In addition, the transfer of unstable patients must be "appropriate" under the law, such that (1) the transferring hospital must provide ongoing care within it capability until transfer to minimize transfer risks, (2) provide copies of medical records, (3) must confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and (4) the transfer must be made with qualified personnel and appropriate medical equipment.

  How common is uncompensated care?

  Uncompensated care should be recognized as a legitimate practice expense for emergency physicians:

  • Approximately 95.2% of emergency physicians provide some EMTALA-mandated care in a typical week and more than one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week.
  • According to the Centers for Medicare & Medicaid Services, 55% of an emergency physician's time is spent providing uncompensated care.
  • Despite comprising just 4% of all US physicians, emergency physicians provide two-thirds of all acute care for the uninsured and half of it for Medicaid patients.
  • Medicaid care is severely underfunded and reimbursement rates often do not cover overhead costs of providing care, much less the physician's time.
  • Medicare coverage also falls short. Adjusted for inflation in practice costs, physician reimbursement has actually declined 19 percent from 2001 to 2018.

  What are the penalties for violating EMTALA?

  • The Centers for Medicare and Medicaid Services (CMS) has a web portal for patients, health care workers or others to file an EMTALA complaint.
  • The Department of Health and Human Services (HHS) Office of the Inspector General (OIG), may impose a civil monetary penalty on a hospital ($119,942 for hospitals with over 100 beds, $59,973 for hospitals under 100 beds/per violation) or physician ($119,942/violation) pursuant to 42 CFR §1003.500 for refusing to provide either any necessary stabilizing care for an individual presenting with an emergency medical condition that requires such stabilizing treatment, or an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition.
  • Under this same authority, HHS OIG may also exclude physicians from participation in Medicare and State health care programs. CMS may also penalize a hospital by terminating its provider agreement.
  • Additionally, private citizens who are harmed by a physician’s or hospital’s failure to provide stabilizing treatment may file a civil suit against the hospital to obtain damages available under the personal injury laws of that state in which the hospital is located, in addition to recouping any equitable relief as is appropriate. 42 U.S.C. § 1395dd(d)(2)(A)