Authority Related to EMTALA

9105 – Authority Related to EMTALA (Rev. 24, Issued: 02-12-16, Effective: 03-14-16, Implementation: 03-14-16) The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), PL 99-272, revised §1866, “Agreements with Providers of Services,” of the Social Security Act (the Act), and added §1867, “Examination and Treatment for Emergency Medical Conditions and Women in Active Labor.” The Omnibus Budget Reconciliation Act of 1989 (OBRA 89), PL 101-239, further refined the requirements of §1154, “Functions of Peer Review Organizations, ”§§1866 and 1867 of the Act, and deleted the word “Active” from the title of §1867. Sections 1866 and 1867 prohibit hospitals with emergency departments from turning away or transferring individuals without screening for emergency medical conditions and stabilizing such conditions or transferring the individual if they lack the capability to provide stabilizing treatment. Section 1867 also requires hospitals with specialized capabilities, regardless of whether they also have emergency departments, to accept appropriate transfers of individuals needing those capabilities, assuming there is capacity at the time of the transfer request. Hospitals are required to maintain on-call lists of physicians who will come to the hospital to provide stabilizing treatment. Both hospitals and physicians who violate EMTALA requirements are subject to enforcement actions; in the case of hospitals this may include both termination of its participation in Medicare as well as civil monetary penalties. Physicians are subject to civil monetary penalties and also potentially to exclusion from the Medicare program. The Omnibus Budget Reconciliation Act of 1990 (OBRA 90), PL 101-508, added §1867(d)(3). This section, titled “Consultation with Quality Improvement Organizations,” requires a 60-day QIO review related to EMTALA cases, unless the delay would jeopardize the health or safety of individuals. The 5-day review is required before CMS makes a compliance determination as part of the process of terminating a hospital’s participation in Medicare; the 60-day review is required before OIG imposes civil monetary penalties. The QIO review is to consider whether an individual had an emergency medical condition; the appropriateness of a medical screen examination, stabilizing treatment, or an appropriate transfer; and whether the individual’s condition had been stabilized. For the 60-day review, the QIO must also offer the involved physician(s) and hospital(s) an opportunity to discuss the case and submit additional information before the QIO completes its review. The following are applicable Code of Federal Regulations (CFR) references: 42 CFR §489.20.l – requires hospitals, as part of their agreement with the Medicare program, (provider agreement) to comply with the EMTALA regulations at 42 CFR §489.24. 42 CFR §489.20.m – requires a hospital to report to CMS or the State Survey Agency any time it believes it received an inappropriate transfer of an individual with an unstable emergency medical condition. 42 CFR §489.20.q – requires a hospital to post conspicuous signs specifying individuals’ EMTALA rights in its emergency department or other places that individuals entering the emergency department are likely to notice. 42 CFR §489.20.r – requires transferring and receiving hospitals to maintain records of transfers for 5 years; requires hospitals to maintain an on-call list of physicians to provide stabilizing treatment for individuals with emergency medical conditions and to maintain a log of each individual who comes to the emergency department. 42 CFR §489.24 – Explains the responsibilities of a hospital with an emergency room to provide appropriate medical treatment to an individual who comes to an emergency department. These responsibilities include an appropriate medical screening examination within the capabilities of the hospital’s emergency department, including ancillary services. 42 CFR §489.24(b) – Provides definitions used in §489.24. 42 CFR §489.24(d) – Explains the hospital’s responsibility to provide necessary stabilizing treatment for any individual who comes to the emergency department (whether eligible for Medicare benefits or not) and when the hospital determines that the individual has an emergency medical condition. 42 CFR §489.24(f) – Explains recipient hospital responsibilities, regardless of whether or not the recipient hospital has an emergency department. Includes the requirement to accept appropriate transfers of individuals who require specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. 42 CFR §489.24(g) – If a hospital fails to meet the requirements of 42 CFR §489.24 (a)– (f), CMS may terminate the provider agreement in accordance with §489.53. 42 CFR §489.24(h)–(i) – Describes the QIO consultative role and obligations to CMS for the 60-day review to provide a medical opinion to determine a physician’s or hospital’s liability under §1867(d)(1) of the Act. 42 CFR §480.132 – Provides the general requirements for disclosure of patient information. 42 CFR §480.133 – Provides the general requirements for disclosure of information about Peer Review practitioners, reviewers, and institutions.