EMTALA specialist expounds upon transfers

Expert says CMS is unclear on issue

An Emergency Medical Treatment and Labor Act (EMTALA) requirement regarding the responsibilities of hospitals when a patient is transferred to another facility was clarified recently by Stephen Frew, JD, a risk management consultant and EMTALA expert. In a recent "EMTALA E-Bulletin," Frew included a Sept. 15, 2004 e-mail comment from the Boston Regional Office of the Centers for Medicare & Medicaid Services (CMS) that read as follows:

"There is no EMTALA requirement for the sending hospital to identify who is the attending physician who will care for the patient at the receiving hospital. There is a requirement that the sending hospital show it has obtained agreement from the receiving hospital to take the patient. This is [stated] in 489.24(d)(ii)(B).

"To show compliance with section 489.24(d)(ii) (B), it would be wise for the sending hospital to document who they spoke to at the receiving hospital. But the [regulations] don’t say that only a physician can accept an incoming patient, or that the sending hospital has to have the identity of the attending at the receiving hospital — neither of these [things] is required by EMTALA."

Frew, who is the publisher of the web site www.medlaw.com, says that, while the CMS statement is technically correct — and does not represent a change in position by CMS — it is "not quite all the answer" and is not automatically applicable to every reader.

"First, it is up to each hospital to determine the manner in which acceptances are to be made," Frew points out. "It can be by clerical staff, administration, physicians, or even housekeeping, as long as it [happens] promptly and the hospital facilitates the transfer. That means they must follow their policies, make those policies known to callers, and help get prompt acceptance."

Hospitals that rely on on-call specialists to make the acceptances may do so, but put themselves at risk of the physician turning down a transfer without their knowledge, he explains. Case law says hospitals can be fined even if they did not know about the wrongful denial, Frew adds.

"The new guidelines also suggest that CMS will give consideration to hospitals that manage to arrange other physician coverage when an on-call [physician] fails or refuses to respond — and that logically would include the denial of transfer," he says. "The big issue here is that the hospital cannot cover for a violation it knows nothing about."

Secondly, Frew notes, some states require physician acceptance as part of state transfer laws, and if that is the case, EMTALA requires the hospital to comply with those laws or also be found in violation of EMTALA.

"Third, many hospitals have been cited on transfer acceptance issues where they have failed to document the time of acceptance, by whom acceptance was given, and who obtained the acceptance for the transferring hospital," he says. "While this note [from CMS] indicates [this action] is desirable," Frew adds, "it should be worded more strongly than that to accurately reflect CMS citation practices."