Alleged Anti-Dumping Violations and the Emergency Medical Treatment and Active Labor Act (EMTALA)

Hospitals with emergency departments (ED) and/or specialty units are prohibited by the Omnibus Budget Reconciliation Act (OBRA) from turning away or transferring patients without screening for emergency medical conditions and stabilizing such conditions or determining that a transfer is in the best interest of the patient.

EMTALA requires participating hospitals with EDs to provide an appropriate medical screening examination within the capacity of the hospital's ED, including ancillary services routinely available to the ED. These services must be provided to anyone (whether or not eligible for Medicare benefits and regardless of ability to pay) who comes to the hospital (including the parking lot, ambulance owned or operated by the hospital regardless of location, and other units in the hospital) in order to determine whether or not he/she has an emergency medical condition. Unless the individual or a person acting on the individual's behalf refuses treatment or transfer after being advised by the hospital of the risks and benefits involved, the hospital must provide to an individual who is determined to have an emergency medical condition either:

• Further medical examination and treatment to stabilize the condition
• Appropriate transfer of the unstable individual to another medical facility after a physician has certified that such transfer is in the individual's best medical interest or after request by the individual or person acting on his or her behalf

An emergency condition is defined as a condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and substance abuse) such that the absence of immediate medical attention could result in placing the health of the individual in serious jeopardy, serious impairment to any bodily function, or serious dysfunction of any bodily organ or part.

Patients who are unstable must either be treated until stabilized or transferred in accordance with the transfer requirements. The transfer requirements apply only to unstable patients. Appropriate transfers must be affected through qualified persons and transportation equipment (if medically necessary) to a receiving hospital that has available space and qualified personnel to treat the individual and that has agreed to accept the individual. The medical record must accompany the individual. Note that hospitals with specialized capabilities/facilities cannot refuse transfer if they have the capacity to provide treatment.

Congress enacted the above provisions to prevent hospitals from refusing to treat individuals requiring emergency care or inappropriately transferring or discharging individuals with unstable emergency conditions. This law applies regardless of whether or not a hospital will receive payment for services rendered.

OBRA 90 requires QIOs to assess whether an individual had an emergency medical condition that had not been treated or which had not been stabilized prior to transfer. Violations of OBRA 90 are commonly called "dumping violations."

For more information on Alleged Anti-Dumping Violations, contact Andy Romero, case review and beneficiary services manager, at (505)314-9009.