EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd). Its original intent and goals are consistent with the mission of ACEP and the public trust held by emergency physicians.

Referred to as the "anti-dumping" law, it was designed to prevent hospitals from transferring uninsured or Medicaid patients to public hospitals without, at a minimum, providing a medical screening examination to ensure they were stable for transfer. As a result, local and state governments began to abdicate responsibility for charity care, shifting this public responsibility to all hospitals. EMTALA became the de facto national health care policy for the uninsured.

EMTALA requires Medicare-participating hospitals with emergency departments to screen and stabilize the emergency medical conditions of patients in a non-discriminatory manner to anyone, regardless of their ability to pay, insurance status, national origin, race, creed or color.

A technical advisory group was convened in 2005 by the Centers for Medicare & Medicaid Services (CMS) to study EMTALA. The advisory group focused on incremental modifications to EMTALA, but also envisioned a fundamental rethinking of EMTALA that would support development of regionalized emergency systems. A new EMTALA would continue to protect patients from discrimination in treatment, while enabling and encouraging communities to test innovations in emergency care system design, for example, direct transport of patients to non-acute care facilities, such as dialysis centers and ambulatory care clinics, when appropriate.

The Institute of Medicine in 2006 recommended that the Department of Health and Human Services adopt regulatory changes to EMTALA and the Health Insurance Portability and Accountability Act (HIPAA) so the original goals of the laws are preserved but integrated systems may further develop.

Hospitals have three main obligations under EMTALA:

1. Any individual who comes and requests must receive a medical screening examination to determine whether an emergency medical condition exists. Examination and treatment cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments also must post signs that notify patients and visitors of their rights to a medical screening examination and treatment. 

2. If an emergency medical condition exists, treatment must be provided until the emergency medical condition is resolved or stabilized. If the hospital does not have the capability to treat the emergency medical condition, an "appropriate" transfer of the patient to another hospital must be done in accordance with the EMTALA provisions. 

3. Hospitals with specialized capabilities are obligated to accept transfers from hospitals who lack the capability to treat unstable emergency medical conditions regardless whether they have a dedicated emergency department. Some hypothetical examples: if a free standing cardiac center receives a call from another facility incapable of treating an unstabilized cardiac patient, it is required to accept the patient if it has sufficient capacity and capability; if a freestanding surgicenter receives a call from a facility incapable of treating an unstable emergency medical patient, it is required to accept the case, provided it has sufficient capacity and capability, regardless of whether it has a dedicated emergency department.

AA hospital must report to CMS or the state survey agency any time it has reason to believe it may have received an individual who has been transferred in an unstable emergency medical condition from another hospital in violation of EMTALA.

. EMTALA governs how patients are transferred from one hospital to another. Under the law, a patient is considered stable for transfer if the treating physician determines that no material deterioration will occur during the transfer between facilities. In those instances where there is disagreement about the patient’s stability and medical condition, the sending physician’s judgment prevails.

EMTALA does not apply to the transfer of inpatients or stable patients; however, if the patient is unstable, then the hospital may not transfer the patient unless:

• A physician certifies the medical benefits expected from the transfer outweigh the risks
  OR
• A patient makes a transfer request in writing after being informed of the hospital's obligations under EMTALA and the risks of transfer.

In addition, the transfer of unstable patients must be "appropriate" under the law, such that (1) the transferring hospital must provide ongoing care within its capability until transfer to minimize transfer risks, (2) the transferring hospital must provide copies of medical records, (3) the transferring hospital must confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and (4) the transfer must be made with qualified personnel and appropriate medical equipment.

Both CMS and the OIG have administrative enforcement powers with regard to EMTALA violations. There is a two-year statute of limitations for civil enforcement of any violation. Penalties may include:

• Termination of the hospital or physician's Medicare provider agreement;
• Hospital fines up to $50,000 per violation ($25,000 for a hospital with fewer than 100 beds);
• Physician fines of $50,000 per violation, including on-call physicians;
• The hospital may be sued for an EMTALA violation in federal (civil) court under a "private cause of action." While most courts treat EMTALA as the anti-discrimination law that it is, some have confused medical malpractice issues with EMTALA violations.

A receiving facility, having suffered financial loss as a result of another hospital's violation of EMTALA, can bring suit to recover damages.

An adverse patient outcome, an inadequate screening examination, or malpractice action do not necessarily indicate an EMTALA violation; however, a violation can be cited even without an adverse outcome. There is no violation if a patient refuses examination &/or treatment unless there is evidence of coercion.

Ultimately we all do, although EMTALA places the greatest responsibility on hospitals and emergency physicians to provide this health care safety net and shoulder the financial burden of providing EMTALA related medical care.

According to a May 2003 American Medical Association study, each emergency physician on average provided $138,300 of EMTALA-related charity care yearly, and one-third of emergency physicians provide more than 30 hours of EMTALA-related charity care each week. Physicians in other specialties provide, on average, about six hours a week of care mandated by EMTALA, and on average incurred about $25,000 of EMTALA-related bad debt in 2001.

Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient's final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America's health care safety.

Some receiving hospitals, including private psychiatric facilities, want proof of Medicare patients’ eligibility days as a condition of acceptance of a transfer, which is a violation of EMTALA and generates boarding problems at the transferring hospital.

ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient's presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.