The Centers for Medicare and Medicaid Services (”CMS”) recently issued a letter to State Survey Directors, who conduct surveys to ensure that health care providers (such as hospitals) are meeting the Medicare conditions of participation, to advise them that a hospital may not condition its acceptance of an EMTALA transfer on the sending hospital’s using a particular transport service. In Letter No. S&C-07-20, dated April 27, 2007, CMS indicated that the Emergency Medical Treatment and Active Labor Act (“EMTALA”) Technical Advisory Group has received testimony that in some instances in which an EMTALA transfer was appropriate, the receiving hospital conditioned its acceptance of the patient on the sending hospital’s using a medical transport service owned by the receiving hospital.
Citing to federal regulations that prohibit a hospital from refusing to accept an EMTALA transfer if the hospital has the capacity to treat the individual, CMS made clear that if in an investigation it discovers that the receiving hospital conditioned, or attempted to condition, the transfer on the sending hospital using the receiving hospital’s emergency transport service, the receiving hospital will be cited with an EMTALA violation.
In this same letter, CMS also issued a clarification of Letter No. S&C-06-21 (issued July 13, 2006) to make clear that a hospital can enlist transport service provider assistance while the patient is on the receiving hospital’s premises but not yet in a hospital emergency department bed. CMS reminded providers that EMTALA obligations are triggered as soon as the patient is on the hospital’s premises and seeks (or someone seeks for him) examination or treatment of an emergency medical condition, which may be before the patient is accepted from the transport service’s gurney. Because a hospital may not have capacity at the exact moment when the patient arrives, CMS stated that it is permissible for the hospital to have emergency transport personnel provide assistance, without there being an EMTALA violation. CMS added one caveat: the receiving hospital still has an obligation to triage the patient to make sure there is no requirement for emergent intervention and that EMS personnel can appropriately monitor the patient until the hospital takes the patient from EMS personnel.