OLR Research Report

June 26, 2009




By: Saul Spigel, Chief Analyst

You asked for a summary of laws governing how hospitals must treat indigent people who present with emergency conditions, particularly those governing their transferring such people to other facilities.


The federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires any hospital that participates in Medicare (all hospitals in Connecticut do) and maintains a dedicated emergency department to (1) conduct an “appropriate screening exam” on anyone who comes to the hospital and asks to be treated and (2) stabilize any emergency condition it detects. If the hospital does not stabilize the condition, it can transfer the patient to another facility but must meet specific conditions before doing so. If it does stabilize the condition, it can discharge the patient, admit him or her to an inpatient room, or transfer the patient to another facility without meeting EMTALA's transfer conditions.

Connecticut has only one regulation governing hospital emergency services. It requires each general hospital to provide adequate care at all times for people with acute emergencies (Conn. Agency Regs., 19-13-D3 (j)).

No state law requires hospitals to treat patients regardless of their ability to pay. But federal tax law conditions hospitals' tax-exempt status on their treating all indigent emergency patients for free and not discriminating among paying patients. OLR report 2001-R-0642, (attached and at http://www.cga.ct.gov/2001/rpt/olr/htm/2001-r-0642.htm) provides more detail on these tax-exempt conditions. State law requires hospitals to post notices in their emergency rooms and other locations about the availability funds they control that are dedicated to providing patient care (“bed funds”). They must also make available a summary describing these funds and how to apply for them and train staff in application procedures (CGS 19a-509b).

EMTALA (42 USC 1395DD, et seq, 42 CFR 489.24)

Congress passed EMTALA in 1985 specifically to address the problem of hospitals “dumping” indigent patients, that is turning away uninsured or indigent people seeking treatment so as to avoid the cost of treating them. EMTALA applies to hospitals that participate in Medicare and have designated emergency departments. It has two principal requirements: a hospital must (1) appropriately screen anyone who seeks emergency care regardless of ability to pay, immigration status, or any other characteristic and (2) stabilize the person's emergency condition within its capability and capacity. EMTALA imposes specific conditions on a hospital that wants to transfer an unstablized patient to another facility.

A hospital may not delay either the screening or stabilizing treatment to ask about a person's insurance status or how he or she will pay for services. It cannot seek, or ask the person to seek, insurance payment until it has screened the person and begun treatment to stabilize his or her condition. But it can use a registration process that includes asking about insurance, as long as that process doesn't delay screening or treatment or unduly discourage people from remaining for further evaluation (42 CFR 489.24(d)(4)(5)).

A hospital that violates these requirements is subject to civil penalties or termination from Medicare (although the latter penalty is rarely invoked).

Screening Patients

EMTALA's screening requirement is triggered when a person comes to a covered hospital and asks to be treated. The person does not necessarily have to come to the emergency room; asking for emergency treatment at any location in a covered hospital triggers the requirement.

A screening exam need only be “appropriate;” it does not have to meet local or national medical malpractice standards. An exam is appropriate, according to a Congressional Research Service (CRS) report, if it is comparable to what a paying patient would receive under similar circumstances (Edward Liu, EMTALA: Access to Emergency Care, May 8, 2008).

Stabilizing Patients

If the screening finds an emergency medical condition exists, the hospital must either provide treatment to stabilize the patient or transfer the patient to another facility. But a hospital does not necessarily violate EMTALA if a screening fails to accurately detect an emergency condition and the person is discharged (although it might be open to a malpractice claim).

Stabilizing treatment can be limited by the capabilities of a hospital's facility (e.g., its physical space, equipment, and specialized services such as surgery, pediatrics, trauma care) and staff (i.e., the level of care the staff, including those on-call, can provide within the scope of their licensure).

Federal regulations define “stabilized” to mean that there is a reasonable medical probability that discharging or transferring the person would not result in his or her condition materially deteriorating. In the case of a woman in labor, stabilizing means delivering the child and placenta (42 CFR 489.24(b)).

Guidance from the Centers for Medicare and Medicaid Services (CMS) states that a person is deemed stabilized if the treating physician or other qualified medical professional determines with reasonable medical confidence that the emergency condition has been resolved. An emergency condition can be resolved even though the underlying medical condition persists. For example, a hospital can provide medication and oxygen to resolve an asthmatic patient's wheezing and shortness of breath even though the asthma that caused them will still exist. A hospital has three options for a patient whose condition has been resolved: it can discharge the patient with follow-up instructions, admit him or her as an inpatient, or transfer the patient to another facility. Doing any of these ends the hospital's EMTALA obligation (CMS, Survey and Certification Letter, March 21, 2008).

Transferring Patients

If a hospital cannot stabilize a person, CMS says it should transfer him or her to another facility that is capable of doing so. EMTALA establishes conditions for such transfers, and failure to follow them is a violation of the law. EMTALA requires:

1. a physician, or other qualified medical person as defined by the hospital's rules, to certify in writing that the benefits of transferring the person outweigh the risks involved in the transfer,

2. the person or the person's representative to ask for the transfer after the sending hospital tells him or her of the hospital's obligations and the risks of the transfer,

3. the receiving hospital to (a) consent to taking the patient and (b) have the capacity and expertise to treat the person,

4. the sending hospital to (a) provide treatment to minimize transfer risks and (b) send all medical records related to the emergency condition to the receiving hospital, and

5. the transfer to be made only with qualifying personnel and equipment.