QUESTION:
We are in a mid-sized city with one other competing hospital. Even though this other hospital appears to have a similar composition of specialists (at least on paper), it keeps transferring emergency patients to us claiming it doesn’t have anyone on call in certain specialties. Our physicians are starting to feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?
OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer. A lateral transfer occurs where the same services are provided at both the sending hospital and the 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.
However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.
EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.” However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.” Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient. This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).
This requirement has put hospitals in a bind, and while it may be patently unfair, refusing the transfer could create its own host of problems. As such, we recommend accepting the transfer to avoid having patients get caught in the middle. From there, you could consider how best to address the situation going forward.
If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.