Question: Does the recent court ruling that says patients in nonhospital ambulances are covered by the Emergency Medical Treatment and Active Labor Act (EMTALA) conflict with the regulations as defined by the Health Care Financing Administration?

Answer: Under EMTALA, a patient is considered to have "come to the ED" if that patient is in a hospital-owned ambulance or on hospital property, says Janet Richmond, an attorney for the Sacramento-based California Healthcare Association. However, a recent court ruling from the Ninth U.S. Circuit Court of Appeals, based in San Francisco, has expanded this definition to include communication by a nonhospital-owned ambulance with a hospital. "The court case says that the issue is not whether the ambulance is owned by the hospital, but whether the ambulance called the hospital and the hospital was in communication with that ambulance," she explains. "So this ruling conflicts with the definition under EMTALA." 

At this time, HCFA is unlikely to enforce the EMTALA statute consistent with this court ruling, Richmond says. "That having been said, in the real world, hospitals don’t turn away ambulances whether they are owned by the hospital or not, whether they communicate with the hospital or not, unless they are on diversion," she adds. However, a hospital might find itself in litigation that could include a cause of action stemming from an EMTALA violation if it turns away a nonhospital-owned ambulance after it communicates with the hospital, if the hospital is not on diversion, says Richmond. 

The ambulance also would have to be located in a state that is covered by the Ninth Circuit Court of Appeals, says Richmond. These states are Hawaii, Alaska, Arizona, Washington, Idaho, Nevada, California, Montana, Wyoming, and Oregon. After the case was heard in the Ninth Circuit, the hospital involved, Queens Medical Center in Honolulu, asked for a rehearing, and it was denied, Richmond adds. "So the only other option they have is to appeal it to the U.S. Supreme Court." 

Richmond notes that it is not known whether Queens Medical Center plans to appeal the Ninth Circuit decision to the Supreme Court. She points out, however, that the General Accounting Office (GAO) is examining EMTALA at the request of Congress. The GAO is looking at such issues as whether EMTALA has strayed from the original intent, and what the costs are to the health care system.

Question: What are guidelines for on-call physician response times to the ED for emergent and urgent conditions?

Answer: Always check your state law and insurance carrier contracts, recommends Gloria Frank, JD, owner of EMTALA Solutions, an Ellicott City, MD-based consulting firm, and former lead enforcement official on EMTALA for HCFA. She notes that HCFA does not specify a time frame but insists that hospitals establish time frames in written policies.  There should be separate time frames for responding by phone and physically presenting to the ED, says Frank. "Also, policies should delineate consequences for failure to abide by time frames," she says. ED staff should know what to do if the physician doesn’t show up. 

For example, at what time do they call someone else? Generally HCFA looks for response times for both STAT and routine conditions, says Stephen Frew, JD, president of the Rockford, IL-based Frew Consulting Group, which specializes in EMTALA compliance. "In plans of correction following citations, my experience is that they require a maximum of 30 minutes for STAT calls for private on-call physicians, differentiating from in-house capability, 60 minutes for routine calls in urban areas, and sometimes 90 minutes in rural areas where physicians are widely scattered," he says. Frew cautions that although most calls for specialists are in the classic definition ranges of emergent and urgent, HCFA will look at a duty to respond for evaluation or stabilizing care, regardless of the category that the patient is placed in for triage reference. Also, "Response is in person,’ not by phone," he says.

Question: There is only one hospital in town or within 30 miles. Must offsite facilities do more than dial 911 for transfer of patients to hospital?

Answer: Yes, according to Frank. She notes that HCFA addressed this issue in a Federal Register document by saying: "We agree that EMS personnel can play a valuable role in transporting patients to appropriate sources of emergency care. A hospital may not, however, meet its EMTALA obligations merely by summoning EMS personnel. EMS may be used appropriately in conjunction with an appropriate hospital response to treat and move an individual who is already on hospital property." [65 Fed Reg 18434, 18523 (2000).] At the least, you should document communications with the main hospital and document the screening performed by the qualified medical person designated in accordance with the new regulations to handle emergencies, says Frank. "A department must designate a qualified medical person only if it regularly is staffed by doctors, nurses, or licensed practical nurses," she adds. 

If the offsite facility is hospital-owned and operating as a designated provider-based remote department of the hospital, it must have designated personnel and policies for medical screening, policies on patient stabilization, and policies on transfer to the main hospital ED, says Frew. "The regulations require that these must contain requirements for direct contact from the remote site to the main ED for direction of care," Frew adds. 


For more information about EMTALA, contact:

Gloria Frank, JD, EMTALA Solutions, P.O. Box 1340, Ellicott City, MD 21041. Telephone: (800) 972-7916. Fax: (410) 480-9116. E-mail: emtala@home.com. Web: www.gloriafrank.com.

Stephen Frew, JD, Frew Consulting Group, 6072 Brynwood Drive, Rockford, IL 61114. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: sfrew@medlaw.com.