Tag A-2409/C-2409
§489.24(e) Restricting Transfer Until the Individual Is Stabilized

§489.24(e)(1) and (2)

(1) General. If an individual at a hospital has an emergency medical condition that has not been stabilized (as defined in paragraph (b) of this section), the hospital may not transfer the individual unless—
(i) The transfer is an appropriate transfer (within the meaning of paragraph (e)(2) of this section); and
Interpretive Guidelines: §489.24 (e)(1)(i)

If an individual’s EMC has not been resolved prior to transferring the individual to another hospital the sending hospital has an EMTALA obligation, and must meet the four requirements of an “appropriate” transfer.

These requirements are found in §489(e)(2):

●    §489.24(2)(i), the transferring hospital provides medical treatment within its capacity that minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child;

●    §489.24(e)(2)(ii), the receiving facility has agreed to accept the patient, has space and qualified personnel available for the treatment;

●    §489.24(e)(2)(iii), the transferring hospital sends to the receiving facility all medical records related to the emergency medical condition which are available at the time of transfer and;

●    §489.24(e)(2)(iv), the transfer is effected through qualified personnel and transportation equipment.
(ii)(A) The individual (or a legally responsible person acting on the individual's behalf) requests the transfer, after being informed of the hospital's obligations under this section and of the risk of transfer. The request must be in writing and indicate the reasons for the request as well as indicate that he or she is aware of the risks and benefits of the transfer;(B) A physician (within the meaning of section 1861(r)(1) of the Act) has signed a certification that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual or, in the case of a woman in labor, to the woman or the unborn child, from being transferred. The certification must contain a summary of the risks and benefits upon which it is based; or

Interpretive Guidelines: §489.24 (e)(1)(ii)(A) and (B) Section 1861 (r)(i) of the Act defines physicians as:
A doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he performs such function or action. (This provision is not to be construed to limit the authority of a doctor or medicine or osteopathy to delegate tasks to other qualified health care personnel to the extent recognized under State law or a State’s regulatory mechanism).
The regulation at §489.24 (e)(1) requires an express written certification. Physician certification cannot simply be implied from the findings in the medical record and the fact that the patient was transferred.

The certification must state the reason(s) for transfer. The narrative rationale need not be a lengthy discussion of the individual’s medical condition reiterating facts already contained in the medical record, but it should give a complete picture of the benefits to be expected from appropriate care at the receiving (recipient) facility and the risks associated with the transfer, including the time away from an acute care setting necessary to effect the transfer. The risks and benefits certification should be specific to the condition of the patient upon transfer.

This rationale may be on the certification form or in the medical record. In cases where the individual’s medical record does not include a certification, give the hospital the opportunity to retrieve the certification. Certifications may not be backdated. Document the hospital’s response.

Women in Labor

●    Regardless of practices within a State, a woman in labor may be transferred only if she or her representative requests the transfer and if a physician or other qualified medical personnel signs a certification that the benefits outweigh the risks. If the hospital does not provide obstetrical services, the benefits of a transfer may outweigh the risks. A hospital cannot cite State law or practice as the basis for transfer.

●    Hospitals that are not capable of handling high-risk deliveries or high-risk infants
often have written transfer agreements with facilities capable of handling high-risk cases. The hospital must still meet the screening, treatment, and transfer requirements.

The certification that the benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the risk of the transfer is not required for transfers of individuals who no longer have an emergency medical condition.
The date and time of the physician certification should closely match the date and time of the transfer.

(C) If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (e)(1)(ii)(B) of this section after a physician (as defined in section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification. The certification must contain a summary of the risks and benefits upon which it is based.

Interpretive Guidelines: §489.24 (e)(1)(ii)(C)

A QMP may sign the certification of benefits versus risks of a transfer only after consultation with the physician who authorizes the transfer. If a QMP determines that the transfer to another facility is in the best interest of the individual and signs the certification of benefits versus risks, a physician’s countersignature must be obtained within the established timeframe according to hospital policies and procedures.

(2) A transfer to another medical facility will be appropriate only in those cases in  which-

(i) The transferring hospital provides medical treatment within its capacity that minimizes the risks to the individual's health and, in the case of a woman in labor,  the health of the unborn child;

Interpretive Guidelines: §489.24 (e)(2)(i)

This is the first requirement of an appropriate transfer.

The provision of treatment to minimize the risks of transfer is merely one of the four requirements of an appropriate transfer. If the patient requires treatment, it must be sufficient to minimize the risk likely to occur or result from the transfer.

NOTE: The four requirements of an “appropriate” transfer are applied only if the transfer is to another medical facility. In other words, the hospital has the alternative of either (1) providing treatment to stabilize the emergency medical condition and subsequently admitting, discharging or transferring the individual, or (2) appropriately transferring an unstabilized individual to another medical facility if the emergency medical condition still exists. There is no “third” option of simply “referring” the individual away after performing step one (treatment to minimize the risk of transfer) of the four transfer requirements of an appropriate transfer.

If an individual is moved to another part of the hospital, the transfer requirements are not applicable because technically the patient has not been transferred.

If an individual is moved to a diagnostic facility located at another hospital with the intention of returning to the first hospital, an appropriate transfer (within the meaning of paragraph (e)(2) of this subsection) must still be effectuated. It is reasonable to expect the recipient hospital with the diagnostic capability to communicate (e.g., telephonic report or documentation within the medical record) with the transferring hospital its findings of the medical condition and a status report of the individual during and after the procedure. Implementing an appropriate transfer back to the sending hospital is not necessary.

Surveyor Probes

After the investigation of the transferring hospital, call or go to the receiving (recipient) facility and determine whether the receiving (recipient) facility verifies the transferring hospital’s information. In cases of discrepancy, obtain the medical record from the transferring and receiving hospitals and the ambulance service for review. Review each hospital’s information. If you determine that it is necessary to conduct a complaint investigation at the receiving (recipient) hospital, notify the RO to request an extension of the investigation timeframe.

Review the transfer logs for the entire hospital, not merely the emergency department. Examine the following for appropriate transfers:
●    Transfers to off-site testing facilities and return;
●    Death or significant adverse outcomes;
●    Refusals of examination, treatment, or transfer;
●    Patients leaving against medical advice (AMA);
●    Returns to the emergency department within 48 hours; and
●    Emergency department visits where the individual is logged in for an unreasonable amount of time before the time indicated for commencement of the medical screening examination.

(ii) The receiving facility--

(A)    Has available space and qualified personnel for the treatment of the individual; and

(B)    Has agreed to accept transfer of the individual and to provide appropriate  medical treatment;

Interpretive Guidelines: §489.24(e)(2)(A) and (B)  This is the second requirement of an appropriate transfer.
The transferring hospital must obtain permission from the receiving (recipient) hospital to transfer an individual. The transferring hospital should document its communication with the receiving (recipient) hospital, including the date and time of the transfer request and the name of the person accepting the transfer.

(iii) The transferring hospital sends to the receiving facility all medical records (or copies thereof) related to the emergency condition which the individual has presented that are available at the time of the transfer, including available history, records related to the individual's emergency medical condition, observations of signs or symptoms, preliminary diagnosis, results of diagnostic studies or telephone reports of the studies, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) required under paragraph (e)(1)(ii) of this section, and the name and address of any on-call physician (described in paragraph (g) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment. Other records (e.g., test results not yet available or historical records not readily available from the hospital's files) must be sent as soon as practicable after transfer; and

Interpretive Guidelines: §489.24 (e)(2)(iii)

This is the third requirement of an appropriate transfer.

Necessary medical records must accompany individuals being transferred to another hospital. If a transfer is in an individual’s best interest, it should not be delayed until records are retrieved or test results come back from the laboratory. Whatever medical records are available at the time the individual is transferred should be sent to the receiving (recipient) hospital with the patient. Test results that become available after the individual is transferred should be telephoned to the receiving (recipient) hospital, and then mailed or sent via electronic transmission consistent with HIPAA provisions on the transmission of electronic data.

Surveyor Probe

Documentation in the medical records should identify the services that were performed before transfer.(iv) The transfer is effected through qualified personnel and transportation equipment, as required, including the use of necessary and medically appropriate life support measures during the transfer.

Interpretive Guidelines: §489.24 (e)(2)(iv)

This is the fourth requirement of an appropriate transfer.

Emergency medical technicians may not always be “qualified personnel” for purposes of transferring an individual under these regulations. Depending on the individual’s condition, there may be situations in which a physician’s presence or some other specialist’s presence might be necessary.

The physician at the sending hospital (and not the receiving hospital) has the responsibility to determine the appropriate mode, equipment, and attendants for transfer.

While the sending hospital is ultimately responsible for ensuring that the transfer is effected appropriately, the hospital may meet its obligations as it sees fit. These regulations do not require that a hospital operate an emergency medical transportation service.

Tags: Transfer elements