Compliance with EMTALA will continue to pose challenges until systemic problems like the treatment of behavioral health patients can be addressed, but in the meantime there are steps that can help a hospital avoid being penalized for violations.

These suggestions are offered by Karen Owens, JD, an attorney with Coppersmith Brockelman in Phoenix:

1. If possible, route requests for transfer into the facility through administrative channels rather than directly through the on-call physician. If the receiving hospital rather than the transferring facility contacts the accepting on-call physician, the chance of mistakes should diminish.

2. Plan ahead for high census periods, focusing on areas of major risk: delays, stabilization, and transfer. Make sure sufficient resources are devoted to the ED, including personnel in the waiting rooms to assist and reassess waiting patients.

3. To deal with behavioral health issues, get help. To the extent possible, bring in behavioral health professionals to handle or assist with emergency medical examinations and commitment processes. Develop relationships with the nearby behavioral health facilities, if they exist. Work out transfer processes so that transfers can be effected without undue delays.

4. When receiving hospital personnel see evidence of an improper transfer, do not turn down the patient. That itself can create EMTALA exposure. Instead, investigate the situation later, when the patient is safe. Because assumptions about the transferring hospital may turn out to be incorrect, a call to the transferring hospital when “dumping” concerns arise can be very productive. If a receiving hospital concludes that a transfer has been improper, it is required to contact CMS; a call to the transferring hospital may supply information that obviates the need for a CMS report. In any event, that call may open a line of communication to improve transfer cooperation in the future.