QUESTION:        The hospital across town is very lax with its on-call schedule. Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient. Our physicians feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

ANSWER:            Yes. 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 across the country, and their on-call physicians, in a difficult position. Essentially, this requirement can make on-call physicians at Hospital B (the receiving hospital) responsible not only for Hospital B’s ED patients, but also potentially for many of Hospital A’s (the sending Hospital) ED patients. That could be because Hospital A doesn’t have the needed specialist on its medical staff or because Hospital A has a less rigorous call schedule than Hospital B.

To learn more about this issue, please join Phil Zarone and Ian Donaldson on November 7, 2017 for an audio conference on “On-Call and EMTALA Policies.” For more information, click here.