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Emergency Medical Treatment and Labor Act (EMTALA) FAQ

This paper provides general legal information. It is not intended as legal advice. Laws and procedures change frequently and are subject to differing interpretations. Physicians should consult their personal attorney if they are in need of legal guidance on a specific situation. Nothing in this paper should be construed as defining a standard of care.

1. In the case of a minor, can/should a hospital delay providing EMTALA mandated emergency care pending parental consent?
2. Do the EMTALA emergency care obligations apply to a physician if the physician does not participate in the managed care plan under which the individual has coverage?
3. May a hospital go on diversionary status—i.e., direct ambulances to take their patients to other hospitals when it does not have the staff or facilities to accept any additional emergency patients?
4. Do EMTALA emergency care obligations apply when an individual seeks examination or treatment at a private physician office located in the hospital complex?
5. Can an individual’s emergency medical condition be considered stabilized, even though the underlying medical condition may persist?
6. Does EMTALA require a screening examination when an individual presents to an emergency department and a request is made for services that are not for a medical condition?
7. What type of screening exam is required for an individual who comes to the emergency department for non-emergency care? 
8. Must a physician personally examine a pregnant woman to certify that she is in false labor?
9. Does EMTALA require a physician to take call?
10. May a hospital unilaterally require a physician to be on call?
11. Must an on-call physician physically go to the emergency department to assess the individual with an emergency condition?
12. May an on-call physician direct a non-physician practitioner, such as a CNRP or physician assistant, to respond on his or her behalf?
13. May a hospital exempt senior medical staff physicians from on-call duties?
14. May a physician who sees or provides consultation regarding an emergency department patient while on call decline to treat the individual for subsequent non-emergency care—e.g., follow-up care in the physician’s office after the patient has been stabilized?
15. Does EMTALA require physicians on a hospital medical staff to accept as patients individuals discharged from a hospital emergency department and referred to the them for follow-up care in their office?

1. In the case of a minor, can/should a hospital delay providing EMTALA mandated emergency care pending parental consent?

No.

According to CMS guidance, EMTALA does not permit a delay to obtain parental consent to screen or stabilize a minor. This is consistent with Pennsylvania law, which provides an exemption to the consent requirement in the case of a medical emergency.

On the other hand, if after screening the minor, it is determined than no emergency medical condition is present, CMS guidance provides that the hospital can wait for parental consent before proceeding with further examination and treatment.

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2. Do the EMTALA emergency care obligations apply to a physician if the physician does not participate in the managed care plan under which the individual has coverage?

Yes.

EMTALA applies regardless of the individual’s ability to pay. (Under the circumstances presented in the example, the individual most likely will have coverage for the emergency services even though the physician does not participate in the individual’s plan. Managed care plans typically allow patients to go out-of-network without a penalty in the case of an emergency. However, the physician still may not be able to collect full payment due to the individual’s failure to pay the difference between the physician’s charge and the plan’s rate and/or the individual’s failure to forward the plan’s payment to the physician.) 

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3. May a hospital go on diversionary status—i.e., direct ambulances to take their patients to other hospitals when it does not have the staff or facilities to accept any additional emergency patients?

Generally yes.

An individual in a non-hospital-owned ambulance, which is off hospital property, is not considered to have come to the hospital's emergency department, even if the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. The hospital may direct such an ambulance to another facility if it is in diversionary status.

However, an individual in an ambulance owned by the hospital is considered to be on the hospital’s property, such that EMTALA emergency care obligations apply, even if the ambulance is not on hospital grounds, unless:

The ambulance is operated under community-wide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance, for example, to the closest appropriate facility, or
The ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance.
According to CMS guidance, in the case of an ambulance owned and operated by the hospital, the diversion of the ambulance is only appropriate if the hospital is being diverted pursuant to community-wide EMS protocols.

In addition, in any event (regardless of whether the ambulance is owned and operated by the hospital), if the ambulance staff disregards the hospital's diversion instructions and transports the individual on to hospital grounds, EMTALA emergency care obligations attach on that basis.

CMS guidance further observes that should a hospital, which is not in diversionary status, fail to accept a telephone or radio request for transfer or admission, the refusal could represent a violation of other federal or state requirements—e.g., Hill-Burton. 

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4. Do EMTALA emergency care obligations apply when an individual seeks examination or treatment at a private physician office located in the hospital complex?

Generally no.

“Hospital property” is defined as the entire main hospital campus, including the parking lot, sidewalk, and driveway as well as any building owned by the hospital within 250 yards of the hospital, but excluding other areas or structures that are not part of the hospital, such as physician offices, rural health centers, skilled nursing facilities, or other entities that participate separately under Medicare, or restaurants, shops, or other non-medical facilities. 

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5. Can an individual’s emergency medical condition be considered stabilized, even though the underlying medical condition may persist?

Yes.

CMS guidance provides the following example:

An individual presents to a hospital complaining of chest tightness, wheezing, and shortness of breath and has a medical history of asthma. A physician completes a medical screening examination and diagnoses the individual as having an asthma attack, which is an emergency medical condition. Stabilizing treatment (medication and oxygen) is provided to alleviate the acute respiratory symptoms.

In this scenario the emergency was resolved, but the underlying medical condition of asthma still exists. 

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6. Does EMTALA require a screening examination when an individual presents to an emergency department and a request is made for services that are not for a medical condition, such as preventive care services (e.g., immunizations, allergy shots, flu shots) or the gathering of evidence for criminal law cases (e.g., blood alcohol test)?

Attention to detail in these situations is essential. Technically, EMTALA does not apply if no request for examination or treatment of a medical condition is made.

However, a request can be implied when a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment for a medical condition.

According to CMS guidance, if, for example, an individual brought in by the police for blood alcohol testing was involved in a motor vehicle accident and may have sustained injury in the accident, it may be warranted to conduct a screening examination to determine whether the individual has an emergency medical condition. 

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7. What type of screening exam is required for an individual who comes to the emergency department for non-emergency care—e.g., a minor medical complaint such as suture removal?

CMS guidance provides that if the nature of a request for examination or treatment makes it clear that the medical condition is not of an emergency nature, the hospital is required only to perform such screening as would be appropriate for any individual presenting in that manner, to determine that the individual does not have an emergency medical condition. 

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8. Must a physician personally examine a pregnant woman to certify that she is in false labor?

According to CMS guidance, how the physician certifies (telephone consultation, or actually examines the patient) the diagnosis of false labor is determined by the hospital and its medical staff.

The guidance states that the hospital should have policies and procedures in place instructing the qualified medical personnel (QMP) on how to obtain the physician’s certification.

It further provides that if telephone consultation is the means utilized to satisfy this requirement, documentation within the patient charts must be in accordance with the hospital condition of participation requirements. 

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9. Does EMTALA require a physician to take call?

Generally no.

However, CMS guidance suggests that a physician’s refusal to take call may be viewed as an EMTALA violation if it is discriminatory.

According to the guidance, physicians that refuse to be included on a hospital’s on-call list but take calls selectively for patients with whom they or a colleague at the hospital have established a doctor-patient relationship while at the same time refusing to see other patients (including those individuals whose ability to pay is questionable) may violate EMTALA. 

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10. May a hospital unilaterally require a physician to be on call?

The responsibilities of medical staff members typically are delineated in the medical staff rules and regulations. It generally is inappropriate for a hospital to unilaterally amend those documents. They are to be adopted by the medical staff and approved by the hospital governing board.

However, the courts might permit a hospital to unilaterally impose on-call responsibilities if the medical staff refuses to agree to reasonable requirements necessary to bring the hospital in line with its EMTALA obligations. 

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11. Must an on-call physician physically go to the emergency department to assess the individual with an emergency condition?

According to CMS guidance, whether the on-call physician must physically assess the patient in the emergency department is the decision of the treating emergency physician. 

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12. May an on-call physician direct a non-physician practitioner, such as a CNRP or physician assistant, to respond on his or her behalf?

According to CMS guidance, whether the on-call physician must respond in person (versus may direct a non-physician practitioner to respond as his or her representative) is made by the responsible on-call physician, based upon the patient’s medical need and the capabilities of the hospital as well as applicable scope of practice laws, hospitals bylaws, and rules and regulations.

However, the guidance further provides that the on-call physician remains ultimately responsible for the patient. 

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13. May a hospital exempt senior medical staff physicians from on-call duties?

According to CMS guidance, an exemption for medical staff members based upon their years of service (e.g., 20 or more years) or age (e.g., 60 years of age or older) would not in itself violate EMTALA. 

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14. May a physician who sees or provides consultation regarding an emergency department patient while on call decline to treat the individual for subsequent non-emergency care—e.g., follow-up care in the physician’s office after the patient has been stabilized?

Arguably, any physician-patient relationship forced on a physician by EMTALA should be limited to the care mandated by EMTALA—i.e., a screening examination and either stabilization care or an appropriate transfer if the individual has an emergency condition.

However, this is a developing area of the law and how the courts will rule is uncertain. In particular, the physician may risk medical liability or licensing disciplinary action for abandonment if the physician refuses to continue to see the individual without adequate notice that the relationship has been terminated.

Also, on-call physicians may have medical staff or contractual responsibilities that require follow-up care. Consequently, the safest course is to continue to provide necessary care, beyond even EMTALA requirements, until the physician-patient relationship is formally terminated (or modified) with adequate notice. 

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15. Does EMTALA require physicians on a hospital medical staff to accept as patients individuals discharged from a hospital emergency department and referred to the them for follow-up care in their office?

Generally no (assuming that the physician did not see or provide consultation regarding the individual while on call).

EMTALA obligations end when the patient is stabilized. Before a patient is discharged, the patient must be stabilized (in the absence of an informed refusal), and it generally is inappropriate for the emergency department to move a patient to a private physician office for medical screening or stabilization.

However, the physician may have contractual or medical staff responsibilities that apply. 

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