EMTLA Violations: “The Emergency Medical Treatment and Active Labor Act"
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Example of an EMTALA Violation:
Take a moment to picture this scenario:
P suffers from hypertension and has received medical treatment for the condition in the past. One morning, P wakes up feeling ill. P experiences dizziness and vomiting. P’s blood pressure is elevated. P has diarrhea, and as a result, becomes severely dehydrated.
P’s symptoms continue for hours throughout the day, until P decides to call an ambulance for transport to a privately-owned hospital nearby. The ambulance takes P to the emergency room and, upon arrival, P requests emergency medical treatment.
What happens next?
Well, this is where our lawyers will direct your attention to 42 United States Code §1395dd, commonly known as The Emergency Medical Treatment and Labor Act, or EMTALA.
What is “The Emergency Medical Treatment and Labor Act” (EMTALA)?
EMTALA requires hospital staff and physicians to provide patients seeking emergency assistance with medically, stabilizing treatment, if:
- The hospital or medical facility has an emergency room; and,
- Is receiving federal funding through the Medicare program.
Who Does “EMTALA” Apply to?
EMTALA applies to municipal and privately-operated medical facilities with emergency rooms. Interestingly, between 1990 and 2009, the amount of hospital emergency rooms located outside of rural areas dropped from 2446 to 1779. EMTALA could have contributed to emergency room closings because hospitals and medical facilities could attempt to reduce their financial losses as well as potential legal liabilities.
It is important for you to know that states are not preempted from enacting legislation to counter issues arising in this area of federal law. For example, California recently introduced a bill that alters hospital and physician procedures regarding treatment and discharge of homeless patients.
What Medical Treatments Are Mandated?
EMTALA mandates the following medical treatments:
- A medical screening examination to determine if an emergency medical condition exists;
- If such emergency medical condition exists, hospital staff must treat patient and stabilize their condition;
- If the hospital is incapable of treating the patient, arrange for the patient to be transferred to another hospital or medical facility that can screen and stabilize the patient as necessary.
A key component of EMTALA is that hospital staff and physicians are required to provide services that are “within the capability of the hospital’s emergency department. Simply put, EMTALA establishes a duty to screen and stabilize patients, if the personnel, and medical facility itself, is capable of accomplishing that duty.
What if P is pregnant and going into labor? Does that change responsibilities under EMTALA?
Answer: No. The statute requires that similar services are provided to pregnant women in labor. A physicians’ duty continues until safe delivery of the child and placenta.
Now, let’s revisit P in the emergency room: Imagine, after P requests medical treatment, the front desk receptionist inquires whether P is insured or can pay for medical treatment. P is uninsured and indigent.
Can a hospital or medical facility staff and physicians refuse to help P?
The short answer: No.
Remember, EMTALA imposes a duty on hospital staff and physicians to give patients medical screenings and stabilizing medical treatment. Refusing to offer indigent patients these services because they cannot afford it can be considered negligence, and an EMTALA violation may be found.
Similarly, refusing to offer a patient medical screening and stabilizing treatment because they are uninsured could constitute negligence as well.
EMTALA was enacted in 1986 by the United States Congress to protect indigent and uninsured patients from the exact situations previously described. The simple term is understood as “patient dumping.”
EMTALA violations may occur if hospital staff and physicians fail to:
- StabilizeA patient prior to discharge or transfer;
- Report improper transfers;
- Protect whistleblowers;
- Post signs containing EMTALA information in a hospital or medical facility;
- Maintain a central patient log and transfer records;
- Refusing to treat and stabilize an undocumented immigrant.
Are wondering which government entities or agencies are responsible for investigating EMTALA violations?
Here are the major federal agencies hospitals and physicians need to be aware of:
EMTALA Investigative Authorities
- Department of Health and Human Services (HHS)
- Centers for Medicare and Medicaid Services (CMS)
- Office of Inspector General (OIG)
- State Survey Agencies
The federal investigative process regarding EMTALA violations involves a joint effort between CMS, OIG, and state survey agencies.
Centers for Medicare and Medicaid Services (CMS)
Generally, complaints containing alleged EMTALA violations are received by CMS, and it will determine whether a hospital or physician must be investigated.
Hospital personnel, other physicians, and patients may also file complaints with state survey agencies. Those state agencies will then forward the complaint to CMS.
Clients must also be aware that state agencies can report EMTALA violations that are discovered through hospital licensing or recertification procedures.
CMS has the authority to allow a state survey agency to conduct an on-site investigation of a hospital or other medical facilities with emergency rooms. You should always be prepared, as these surveys can be performed unannounced!
The survey agency must complete its investigation within five (5) business days, and report findings to the appropriate CMS regional office within specific timeframes.
Physician reviews are also initiated by CMS and state survey agencies. Physician reviews must occur within five (5) working days.
If you or a colleague are under investigation or review, and it has taken longer than five (5) business days, call our firm for assistance immediately!
What are the Penalties for EMTALA violations?
When dealing with EMTALA violations, there is good news and bad news. The good news is that criminal implications do not attach to confirmed violations.
The bad news? Hospitals, medical facilities, medical staff, and physicians can be subject to fines, and civil proceedings.
Hospitals and physicians that violate EMTALA may be subject to a $50,000 fine for each violation. If the facility has one hundred (100) beds or less, the fine is $25,000 per violation.
Adjusting for Inflation
In 2016, EMTALA fines were adjusted to account for inflation for the first time since The Act’s inception.
Physicians are subject to financial penalties if he or she signs a medical certificate approving patient transfer when the benefit of “dumping” the patient does not outweigh the health-related risks of transfer.
Physicians can also be held financially liable for misrepresenting the patient’s condition. Additionally, physicians will be held accountable for misrepresenting his or her obligations under EMTALA.
Our lawyers want to prevent you from having to endure costly consequences of violating EMTALA.
One of the Largest Fine Imposed by OIG
One of the largest fines imposed by OIG came in June 2017 when AnMed Health in South Carolina agreed to pay $1.3 million for thirty-six (36) violations dating back to 2012 and 2013.
EMTALA violations can also lead to loss of federal Medicare funding!
If CMS discovers and confirms an EMTALA violation occurred, it can initiate proceedings to terminate hospitals’ and physicians’ Medicare Provider Agreement. The termination periods vary depending on the severity of the violation.
Monetary fines and termination of Medicare agreement are imposed by OIG. Our lawyers have experience in dealing with these federal agencies. One service we offer is to assist you with creating a plan of correction which can end the termination process!
Recall that an EMTALA violation results from hospital staff or physicians failing to report observed refusals of medical screening examinations and improper patient transfers.
Clients must know that retaliating against individuals or employees that report alleged EMTALA violations can also result in an investigation or lawsuit.
However, the individual or employee must report a violation to receive whistleblower protection under EMTALA.
In Gillispie v. Regionalcare Hospital Partners, Inc., the Third Circuit held that a fired nurse needed to establish, (1) she took an action protected by EMTALA, (2) her employer retaliated or took adverse action against her for her conduct, and (3) the employer retaliated due to the nurse’s protected action.
Why Do You Need Our Legal Representation?
EMTALA violations do not result in criminal charges but remain extremely serious, as alleged violations may lead to federal investigations and civil lawsuits.
Our lawyers will protect your hospital or medical practice and facility from losing its profits, Medicare funding, and reputation within the medical profession.
Our lawyers are ready to represent you in interviews, depositions, and other interrogative procedures conducted by federal authorities in conjunction with EMTALA violations.
We will safeguard your rights if you are facing termination of your Medicare provider agreement. Our lawyers can advise you on the appropriate measures to correct the violation and certify same with CMS and state survey agencies to resolve any alleged EMTALA violations.
We are available for consultations, and we are determined to provide you with the legal representation needed to WIN your case! Call us now!
Call 844-239-1234 for aFree Confidential Case Review
Additional Information and Press Releases
1. CMS Guidance and Operations Manual
2. AMA Journal of Ethics: Refusal of Emergency Care and Patient Dumping
3. AMA Journal of Ethics: Defining Hospitals’ Obligation to Stabilize Patients under EMTALA
4. Becker’s Hospital Review, “12 Hospital Settlements Involving Patient Dumping in 2013”, March 2014
Office of Inspector General: Physician Agrees to $1.5 million Payment and 15-Year Exclusion to Settle Civil Monetary Penalty Case, March 2014
 Commissioner Statement of Gail Heriot in the U.S. Commission on Civil Rights’ Report ‘Patient Dumping’, on page 16, September 2014. “California Legislature Tries to Stop ‘Patient Dumping’,” Gal Heriot, September 2018. California Senate Bill No. 1152. Transfer of patients to other facilities prior to stabilizing is allowed if certain criteria and approval measures are satisfied. See 42 United States Code §1395dd(c)(1)” Also includes ancillary and specialized services provided by the emergency room. See 42 United States Code §1395dd(a), (g) (Includes, but not limited to, burn units, shock-trauma units, neonatal intensive care units, or regional referral centers). EMTALA does not supplant state medical malpractice laws. See Hardy v. New York City Health & Hospitals, 164 F.3d 789 (2nd Cir. 1999). Our lawyers are also capable of handling state law malpractice claims filed against hospitals and physicians. See Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 (D.C. Cir. 1991) (“EMTALA was designed to address the problem of ‘patient dumping’, whereby hospital emergency rooms deny uninsured patients the same treatment provided paying patients, either by refusing care outright or by transferring uninsured patients to other facilities.” To “stabilize” a patient means “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during transfer, or in the case of childbirth, delivering both child and placenta.” See 42 United States Code §1395dd(3)(A). CMS State Operations Manual, 2018.See, 42 United States Code 1395dd(d)(1)(A).  http://epmonthly.com/article/feds-increase-emtala-penalties-physicians-hospitals/ See, 42 United States Code 1395dd(d)(1)(B). https://www.modernhealthcare.com/article/20170705/NEWS/170709977 United States General Accounting Office, EMTALA Implementation and Enforcement Issues, at page 8, June 2001. See, 42 United States Code 1395dd(i) (Participating hospitals may not penalize or take adverse action against certain staff and physicians as a result of a refusal to authorize an improper transfer or reporting an alleged EMTALA violation). See, Gillispie v. Regionalcare Hosp. Partners Inc., 892 F.3d 585 (3rd Cir. 2018) (Employees must provide prima facie evidence to support assertions he or she is a protected whistleblower under EMTALA).
 See generally, Hardy v. New York City Health & Hospitals, 164 F.3d 789 (2nd Cir. 1999).