March 2, 2017

QUESTION:        I’m the orthopedic surgeon on call at Hospital Big.  Our ED just got a call from the ED at Hospital Small.  Their orthopedic surgeon isn’t on call tonight, and they have an ED patient with an emergency medical condition they can’t stabilize.  They want to transfer the patient here so that I can treat and stabilize the patient.  The truth?  I’m tired of Hospital Small treating me like their on-call orthopod.  They should have theirs on call more often, and not just send me their ED patients who are uninsured.  I’m going to tell them not to ship the patient.  Any problem with that?

ANSWER:             The main problem is that this is likely going to be an EMTALA violation for Hospital Big.

A receiving hospital has the right to refuse an EMTALA transfer request if the proposed transfer is “lateral.”  A lateral transfer occurs when the same emergency medical condition (“EMC”) stabilizing services are provided and available at both the sending hospital and the proposed receiving hospital.  Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

The exception to this rule is where the sending hospital cannot stabilize the patient’s EMC and the receiving hospital has “specialized capabilities,” compared to the sending facility that can, here, the on-call orthopod.  The receiving hospital also has to have the capacity (available OR and staff) to stabilize the patient’s EMC.  In that situation, the receiving hospital has to accept the patient; it cannot refuse the proposed transfer.

Common areas in which “specialized capabilities” have been found by CMS include orthopedic surgery, neurosurgery, OB and mental health care (particularly inpatient mental health care).  These are only common examples; conceivably, any services provided at the proposed receiving hospital that are not available at the sending hospital are “specialized capabilities.”

We’ve been involved in specific investigations and enforcement efforts where CMS has responded to complaints by strictly holding the receiving hospital accountable.  Here, that would be Hospital Big.  By EMTALA, a hospital cannot delegate to an on-call specialist the authority to decline a transfer.  To address this, many hospitals have instituted an approach where the ED physician makes the decision to accept or decline a proposed transfer.

It is best for the ED physician (as the “acceptance decision-maker”) to discuss the proposed transfer with the on-call specialist, as the specialist may have legitimate reasons for why the transfer should not be accepted.  But it is the ED physician (or other hospital-designated individual) who makes that final decision.

This can no doubt create some unfair situations for Hospital Big’s on-call orthopedic surgeon.  And it might be best for the right management person at Hospital Big to reach out to her counterpart at Hospital Small, to try and address what appear to be transfers by which Hospital Small is taking advantage of Hospital Big’s on-call specialist(s) (at least from Hospital Big’s point of view).

But the key is, CMS has been enforcing the specialized capabilities transfer rule this way for over 15 years, and we still encounter the question asked above at hospitals and by medical staff physicians.  EMTALA’s penalties are the potential termination of the hospital’s Medicare provider agreement and fines of up to $50,000 per EMTALA violation.  That would be the most painful outcome for any kind of wrong EMTALA patient transfer decision.