CMS Pub. 100-10, ch. 9, § 9105

The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), PL 99-272,

revised §1866, “Agreements with Providers of Services,” of the Social Security Act (the

Act), and added §1867, “Examination and Treatment for Emergency Medical Conditions

and Women in Active Labor.” The Omnibus Budget Reconciliation Act of 1989 (OBRA

89), PL 101-239, further refined the requirements of §1154, “Functions of Peer Review

Organizations, ”§§1866 and 1867 of the Act, and deleted the word “Active” from the title

of §1867.

Sections 1866 and 1867 prohibit hospitals with emergency departments from turning away

or transferring individuals without screening for emergency medical conditions and

stabilizing such conditions or transferring the individual if they lack the capability to

provide stabilizing treatment. Section 1867 also requires hospitals with specialized

capabilities, regardless of whether they also have emergency departments, to accept

appropriate transfers of individuals needing those capabilities, assuming there is capacity

at the time of the transfer request. Hospitals are required to maintain on-call lists of

physicians who will come to the hospital to provide stabilizing treatment. Both hospitals

and physicians who violate EMTALA requirements are subject to enforcement actions; in

the case of hospitals this may include both termination of its participation in Medicare as

well as civil monetary penalties. Physicians are subject to civil monetary penalties and

also potentially to exclusion from the Medicare program.

The Omnibus Budget Reconciliation Act of 1990 (OBRA 90), PL 101-508, added

§1867(d)(3). This section, titled “Consultation with Quality Improvement

Organizations,” requires a 60-day QIO review related to EMTALA cases, unless the delay

would jeopardize the health or safety of individuals. The 5-day review is required before

CMS makes a compliance determination as part of the process of terminating a hospital’s

participation in Medicare; the 60-day review is required before OIG imposes civil

monetary penalties. The QIO review is to consider whether an individual had an

emergency medical condition; the appropriateness of a medical screen examination,

stabilizing treatment, or an appropriate transfer; and whether the individual’s condition

had been stabilized. For the 60-day review, the QIO must also offer the involved

physician(s) and hospital(s) an opportunity to discuss the case and submit additional

information before the QIO completes its review.

The following are applicable Code of Federal Regulations (CFR) references:

42 CFR §489.20.l – requires hospitals, as part of their agreement with the Medicare

program, (provider agreement) to comply with the EMTALA regulations at 42 CFR

§489.24.

42 CFR §489.20.m – requires a hospital to report to CMS or the State Survey Agency any

time it believes it received an inappropriate transfer of an individual with an unstable

emergency medical condition.

42 CFR §489.20.q – requires a hospital to post conspicuous signs specifying individuals’

EMTALA rights in its emergency department or other places that individuals entering the

emergency department are likely to notice.

42 CFR §489.20.r – requires transferring and receiving hospitals to maintain records of

transfers for 5 years; requires hospitals to maintain an on-call list of physicians to provide

stabilizing treatment for individuals with emergency medical conditions and to maintain a

log of each individual who comes to the emergency department.

42 CFR §489.24 – Explains the responsibilities of a hospital with an emergency room to

provide appropriate medical treatment to an individual who comes to an emergency

department. These responsibilities include an appropriate medical screening examination

within the capabilities of the hospital’s emergency department, including ancillary

services.

42 CFR §489.24(b) – Provides definitions used in §489.24.

42 CFR §489.24(d) – Explains the hospital’s responsibility to provide necessary

stabilizing treatment for any individual who comes to the emergency department (whether

eligible for Medicare benefits or not) and when the hospital determines that the individual

has an emergency medical condition.

42 CFR §489.24(f) – Explains recipient hospital responsibilities, regardless of whether or

not the recipient hospital has an emergency department. Includes the requirement to

accept appropriate transfers of individuals who require specialized capabilities or

facilities if the receiving hospital has the capacity to treat the individual.

42 CFR §489.24(g) – If a hospital fails to meet the requirements of 42 CFR §489.24 (a)–

(f), CMS may terminate the provider agreement in accordance with §489.53.

42 CFR §489.24(h)–(i) – Describes the QIO consultative role and obligations to CMS for

the 60-day review to provide a medical opinion to determine a physician’s or hospital’s

liability under §1867(d)(1) of the Act. 42 CFR §480.132 – Provides the general

requirements for disclosure of patient information.

42 CFR §480.133 – Provides the general requirements for disclosure of information about

Peer Review practitioners, reviewers, and institutions.