Transfers: You can say no if there’s a good reason

Keys: Capability, capacity, and appropriateness

[This column addresses readers’ questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Steve Lewis, Editor, ED Management, 215 Tawneywood Way, Alpharetta, GA 30022. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail:]

Question: Under what conditions can a tertiary care center that usually receives patients refuse transfer?

Answer: As some EDs around the country are closing or losing services, the smoothness and appropriateness of transfers is becoming an even greater challenge, says Tom Syzek, MD, FACEP, director of risk management at Premier Health Care Services in Cincinnati.

"At the hospital where I work in suburban Cincinnati, we no longer have any neurosurgery done; so for any neurosurgical needs, we must accomplish a transfer," he explains.

In the newest EMTALA regs, issued Nov. 10, 2003, the following conditions were delineated, according to Syzek: If you do not have the required specialized capability or facility, you have to refer the transfer. However, the receiving hospital has to have the capacity to treat the individual. If it does, it cannot then refuse to accept an appropriate transfer. (Editor’s note: The italicized words indicate what Syzek considers to be the crux of these new regulations.)

"If you are a hospital that has a specialized capability — i.e., the highest level neonatal [intensive care unit] or burn unit, and you have room and capacity yourself, then that’s not an appropriate transfer to another specialized facility," he explains.

It is incumbent upon you to keep the patient, Syzek says. In fact, a potential receiving hospital that knows you have that capability could justifiably refuse transfer from you, he adds.

"There has to be a higher level of care available that is unavailable to your hospital," Syzek says.

Sometimes there is neither a pure acceptance nor refusal of the patient: "If a person comes in whose airway has failed, or who needs a transfusion — as well as more specialized care that you cannot provide — it would not be an appropriate transfer to bypass those necessary life-saving measures and send [the patient] on," Syzek explains.

"It would not be an appropriate transfer until you accomplish the stabilizing procedures your hospital is capable of. You do the airway, the [intravenous] lines, the fluid resuscitation, the blood transfusion, and when they’re as stable as they can be, then you can send [that person] on," he adds.

If you are on the receiving end, there’s a pretty high bar for declining transfer, Syzek continues. "If I’m a receiving hospital, and I listen to [the transferring hospital] talk about the patient, and I think it’s not in the patient’s best medical interest — that for some reason our specialized care may not help — I can refuse that transfer, but I’d better be right," he warns.

How do you determine if you have the capacity to treat the transfer patient? "[The Centers for Medicare & Medicaid Services] has redefined the term capacity to mean whatever a hospital customarily does to accommodate patients in excess of its occupancy limits,’" Syzek notes.

This redefinition is a looser standard than the previous definition, which was "if the hospital has ever done this before," he says.

"So, if you call in more staff, move some beds around, and use the recovery unit as overflow, then you're fine," he points out. Have a plan and capacity in writing, Syzek emphasizes.

Of course, you can safely refuse transfer if the patient does not have an emergency medical condition, since EMTALA would not apply.

"If a child fell and has the very simplest of fractures, once you splint it, there’s no emergency medical condition left," he explains.

"If a patient has a very minor cut on the face but demands a plastic surgeon, and you do not have one on staff, that does not meet the definition of an emergency medical condition, and transfer is not required," Syzek adds.

There are several clear-cut, unacceptable reasons for refusing transfer, he notes. One is economic discrimination, Syzek explains.

"You cannot refuse transfer because a patient does not have insurance, or if [he or she is] covered by an HMO and the receiving hospital does not participate in it," he advises.

A transfer also cannot be refused because the patient’s physician is not on staff at the receiving hospital.

"The bottom line is that you can refuse transfer if you do not have the physical capability, the staff, or the physicians needed to care for that patient," Syzek says.


For more information on compliance with the Emergency Medical Treatment and Labor Act, contact:

  • Tom Syzek, MD, FACEP, Director of Risk Management, Premier Health Care Services, Cincinnati. Phone: (937) 312-3497. E-mail: