CMS Pub. 100-10, ch. 9, § 9115

Congress enacted the above provisions to prevent hospitals from refusing to treat

individuals requiring emergency care or inappropriately transferring or discharging

individuals with unstabilized emergency conditions. Refer to §9110 for the full definition

of an emergency medical condition.

Section 1866 of the Act contains requirements related to §1867. The related provisions

require hospitals and rural primary care hospitals to:

• Ensure compliance with and meet the requirements of §1867;

• Maintain medical and other records related to individuals transferred to or from

the hospital for five (5) years from the date of transfer;

• Maintain a list of physicians who are on call for duty after the initial examination

to provide treatment necessary to stabilize an individual with an emergency

condition; and

• Post in the emergency department (ED) a conspicuous sign(s) informing

individuals of their rights under §1867 to examination, treatment, and appropriate

transfer, as necessary, for emergency medical conditions and women in labor,

regardless of ability to pay.

Section 1867 of the Act, as interpreted at 42 CFR 489.24(b), requires participating

hospitals with emergency departments, as defined in the regulations, to provide an

appropriate medical screening examination within the capacity of the hospital’s

emergency department, including ancillary services routinely available to the emergency

department, to anyone (whether or not eligible for Medicare benefits and regardless of

ability to pay) who comes by him/herself or with another person to the hospital (including

the parking lot, ambulance owned or operated by the hospital regardless of location, and

other units in the hospital) 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, including

delivery of the child and placenta, if relevant; or

• Appropriate transfer of the unstabilized individual or woman in labor 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/her behalf.

Patients who are not stable must either be treated until stabilized or transferred in

accordance with the transfer requirements. The transfer requirements apply only to

unstabilized patients. Appropriate transfers must be effected 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.

In addition, a participating hospital that has specialized capabilities or facilities,

including (but not limited to) burn units, shock-trauma units, neonatal intensive care units,

or, in rural areas, regional referral centers may not refuse to accept from a referring

hospital within the boundaries of the United States an appropriate transfer of an

individual who requires such specialized capabilities or facilities if the hospital has the

capacity to treat the individual. This is the case regardless of whether the hospital with

specialized capabilities has an emergency department or not.

This law applies regardless of whether or not a hospital will receive payment for services

rendered. Participating hospitals may not delay the provision of an appropriate medical

screening examination or further medical examination and treatment to inquire about the

individual’s method of payment or insurance status. In addition, a participating hospital

may not penalize or take adverse action against a physician because the physician refuses

to authorize the transfer of an individual with an emergency condition that has not been

stabilized.