EMTALA and You

Don’t have health insurance? EMTALA is a law you need to know.

The Emergency Medical Treatment and Active Labor Act is a statute which governs when and how a patient may be (1) refused treatment or (2) transferred from one hospital to another when he is in an unstable medical condition.

EMTALA applies only to "participating hospitals" -- i.e., to hospitals which have entered into "provider agreements" under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of that program. In practical terms, this means that it applies to virtually all hospitals in the U.S., with the exception of the Shriners' Hospital for Crippled Children and many military hospitals. Its provisions apply to all patients, and not just to Medicare patients.

The avowed purpose of the statute is to prevent hospitals from rejecting patients, refusing to treat them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to pay or are covered under the Medicare or Medicaid programs.

EMTALA is primarily but not exclusively a non-discrimination statute. One would cover most of its purpose and effect by characterizing it as providing that no patient who presents with an emergency medical condition and who is unable to pay may be treated differently than patients who are covered by health insurance.

Any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition" must be provided with "an appropriate medical screening examination" to determine if he is suffering from an "emergency medical condition". If he is, then the hospital is obligated to either provide him with treatment until he is stable or to transfer him to another hospital in conformance with the statute's directives.

Note the use of the words “emergency medical condition” and “treatment until he is stable”. If a true emergency situation does not exist, the provider is not obligated to provide treatment. Once the patient is stabilized there is no further obligation to treat the patient.

So when is the patient stabilized?

• (for emergency medical conditions) that no material deterioration of the patient's condition is likely to result from the transfer or is likely to occur during the transfer;
• (for patients in active labor) the infant and the placenta have been delivered.

And what if the patient lacks the ability to pay? Can the hospital (or doctor) ask if the patient has the ability to pay?

Yes, but timing is everything. The statute does not prohibit an inquiry into availability of medical insurance; it does provide that neither examination nor treatment may be delayed to make the inquiry.

Some knowledgeable commentators have suggested that no discussion of any payment issues should take place before the medical screening examination and any needed stabilizing treatment are provided. Others have found no reason for an outright prohibition on asking about insurance coverage while the patient is waiting for the examination so long as it is made clear that financial considerations will not affect decisions regarding examination and treatment. This is obviously an area with some dangers, and one benefit of absolute rules is that no one has to wonder where the line may be drawn. CMS has even recommended that hospital personnel not answer any questions initiated by the patient, apparently on the theory that some patients may be dissuaded from staying if they learn that they will be financially responsible for the treatment, even if they are assured that they will be seen without consideration of payment issues.


I find this disturbing. “Some patients may be dissuaded from staying if the learn they will be financially responsible for treatment”.

What kind of people feel that medical treatment is, or should be, free?

So what happens if a patient feels they have been discharged early, or have not been treated fairly?

A hospital which negligently violates the statute may be subject to a civil money penalty (i.e., a fine, but without criminal implications) of up to $50,000 per violation. If the hospital has fewer than 100 beds, the maximum penalty is $25,000 per violation.

A physician who is responsible for providing an examination or treatment, including but not limited to an on-call physician, may be liable for a civil money penalty for signing the medical certificate if he knew or should have known that the benefits of transfer did not in fact outweigh the risks of transfer, or if he misrepresents the patient's condition or the hospital's obligations under the statute.

A physician who is on call and who fails or refuses to appear after being called by an E.R. physician (or other physician) may be subject to a penalty under the statute, or may subject his hospital to a penalty. The wording of this section [1395dd(d)(1)(C)] is so garbled as to be virtually indecipherable

In other words, they can be sued.

So to summarize . . .

If you have a medical emergency, you have a right to treatment regardless of your ability to pay. Once your condition has been stabilized you can be discharged or transferred to another facility for care. If you feel the hospital or staff has acted inappropriately in discharging you, they may be sued.

What a country.