[Editor’s note: This column addresses reader questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Greg Freeman, Editor, ED Management, 3185 Bywater Trail, Roswell, GA 30075. Phone: (770) 998-8455. E-mail: Free6060@bellsouth.net.]

Question: The Centers for Medicare & Medicaid Services (CMS) recently issued guidance to surveyors on interpreting the final EMTALA rule, and one of the points stated that EMTALA no longer applies when the physician determines that "no emergency exists." Does this mean that EMTALA no longer applies once the patient has been treated for the presenting emergency and that emergency no longer exists, but then another condition arises or the patient complains of something new?

Answer: The answer depends to some extent on where the patient is after the initial emergency has been resolved, says Susan Lapenta, JD, a partner with Horty Springer, a law firm in Pittsburgh that specializes in health care issues. Consider a scenario in which a patient is treated in the ED for an initial emergency medical condition (EMC), and that treatment resolves the EMC.

Screening is an ongoing process

"If the patient is still in the ED and develops another EMC and then you discharge that patient, I think you would have an EMTALA violation," Lapenta explains.

"The regs have previously talked about how the medical screening examination is an ongoing process. It is not a single event in time. So long as someone is still under your control, if [the patient] develops another emergency, I think EMTALA still applies," she points out.

Of course, it is possible for the ED team to resolve the initial emergency, discharge the patient, and he or she still collapses on the way out the door due to a second EMC, Lapenta continues.

In such a case, it would be reasonable for the hospital to explain why the patient was discharged, and the incident probably would not be an EMTALA violation, she says.

A key point, Lapenta cautions, is that the medical screening exam should reveal all EMCs, not just the first one or the primary one that brought the patient to the ED.

"If you’ve taken care of the patient’s heart attack and then he says, My legs feel like they’re going to fall off,’ you can’t just ignore that because you fulfilled your EMTALA obligation with the first problem," she says.

"Once the condition becomes known to you, or it should have become known to you, while the patient is still in the ED, EMTALA is still applicable," Lapenta notes.

What about frequent flyers?

But where does that leave you when a frequent flyer keeps complaining of a new problem every time you resolve one issue and try to discharge him? Do you have to keep the patient around and examine him repeatedly even when you know he’s manipulating EMTALA to his advantage? she asks.

If you do a proper medical screening examination in the first place, you don’t have to keep repeating it just because the patient complains of a new ailment, Lapenta states.

"It’s all dictated by what would make sense from a medical perspective," she adds. "If he continues to complain of the same thing, and your examination was sufficient to assess that complaint, you don’t have to keep examining the patient. And if the patient complains of something that would have been revealed when you examined him for the first emergency, you don’t necessarily have to go back and do another evaluation."

Of course, there will be circumstances in which it is necessary to examine the patient again. Examples include the patient complaining that the original problem is getting worse, or if he reports a new condition that would not have been revealed in the original examination. Some conditions could arise in the interim and require evaluation also, Lapenta says.

"If someone presents with mild symptoms, you might do one kind of examination. And then if they report severe symptoms, you might need to do different kinds of tests," she says.

"EMTALA doesn’t say that you have to do one exam and then you’re done. You have an ongoing obligation to assess new conditions that may develop or conditions that may change while they are in your ED," Lapenta notes.

Admitting patient changes the picture

Admission to the hospital changes the picture significantly, she explains. The final EMTALA rule makes clear that the law does not apply after a patient is admitted. Your obligation to EMTALA is resolved entirely once the patient is admitted, with the notable exception of obstetrical patients who still are covered, she says. There still are other obligations that will require the hospital to provide appropriate care, such as the Medicare conditions of participation and malpractice concerns.

As a practical matter, that distinction is most likely to come into play regarding the hospital’s on-call list, Lapenta says.

Most hospital policies require that on-call physicians respond promptly to EMTALA-covered patients, but not necessarily to non-EMTALA patients who have been admitted, she says.

Lapenta suggests that hospitals may want to clarify policies to require on-call physicians to respond when medically necessary whether the patient is covered by EMTALA at that point or not.

Transfers are another potential difficulty. Once the patient is admitted and a transfer is necessary, the hospital does not have to fill out the EMTALA transfer paperwork. But Lapenta advises that it still is a good idea to document clearly that the transfer was necessary.

"You can still use the EMTALA paperwork for the transfer after the patient is admitted, but it’s not required," she says.


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

  • Susan Lapenta, JD, Horty Springer, 4614 Fifth Ave., Pittsburgh, PA 15213. Telephone: (800) 245-1205. E-mail: Slapenta@hortyspringer.com.