US Code as of: 01/26/98 (from LII)

• (a) Medical screening requirement
  In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

• (b) Necessary stabilizing treatment for emergency medical
  conditions and labor
  • (1) In general
    If any individual (whether or not eligible for benefits under
    this subchapter) comes to a hospital and the hospital determines
    that the individual has an emergency medical condition, the
    hospital must provide either -
    • (A) within the staff and facilities available at the
      hospital, for such further medical examination and such
      treatment as may be required to stabilize the medical
      condition, or
    • (B) for transfer of the individual to another medical
      facility in accordance with subsection (c) of this section.
  • (2) Refusal to consent to treatment
    A hospital is deemed to meet the requirement of paragraph
    (1)(A) with respect to an individual if the hospital offers the
    individual the further medical examination and treatment
    described in that paragraph and informs the individual (or a
    person acting on the individual's behalf) of the risks and
    benefits to the individual of such examination and treatment, but
    the individual (or a person acting on the individual's behalf)
    refuses to consent to the examination and treatment. The
    hospital shall take all reasonable steps to secure the
    individual's (or person's) written informed consent to refuse
    such examination and treatment.
  • (3) Refusal to consent to transfer
    A hospital is deemed to meet the requirement of paragraph (1)
    with respect to an individual if the hospital offers to transfer
    the individual to another medical facility in accordance with
    subsection (c) of this section and informs the individual (or a
    person acting on the individual's behalf) of the risks and
    benefits to the individual of such transfer, but the individual
    (or a person acting on the individual's behalf) refuses to
    consent to the transfer. The hospital shall take all reasonable
    steps to secure the individual's (or person's) written informed
    consent to refuse such transfer.

• (c) Restricting transfers until individual stabilized
  • (1) Rule
    If an individual at a hospital has an emergency medical
    condition which has not been stabilized (within the meaning of
    subsection (e)(3)(B) of this section), the hospital may not
    transfer the individual unless -
  • (A)
    • (i) the individual (or a legally responsible person acting
      on the individual's behalf) after being informed of the
      hospital's obligations under this section and of the risk of
      transfer, in writing requests transfer to another medical
      facility,
    • (ii) a physician (within the meaning of section 1395x(r)(1)
      of this title) has signed a certification that ^[1]
      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 and, in the case
      of labor, to the unborn child from effecting the transfer, or
    • (iii) if a physician is not physically present in the
      emergency department at the time an individual is transferred,
      a qualified medical person (as defined by the Secretary in
      regulations) has signed a certification described in clause
    • (ii) after a physician (as defined in section 1395x(r)(1) of
      this title), in consultation with the person, has made the
      determination described in such clause, and subsequently
      countersigns the certification; and
      (B) the transfer is an appropriate transfer (within the
      meaning of paragraph (2)) to that facility.
      A certification described in clause (ii) or (iii) of subparagraph
      (A) shall include a summary of the risks and benefits upon which
      the certification is based.

• (2) Appropriate transfer
  An appropriate transfer to a medical facility is a transfer -
  • (A) in which the transferring hospital provides the medical
    treatment within its capacity which minimizes the risks to the
    individual's health and, in the case of a woman in labor, the
    health of the unborn child;
  • (B) in which the receiving facility -
    • (i) has available space and qualified personnel for the
      treatment of the individual, and
      (ii) has agreed to accept transfer of the individual and to
      provide appropriate medical treatment;
  • (C) in which the transferring hospital sends to the receiving
    facility all medical records (or copies thereof), related to
    the emergency condition for which the individual has presented,
    available at the time of the transfer, including records
    related to the individual's emergency medical condition,
    observations of signs or symptoms, preliminary diagnosis,
    treatment provided, results of any tests and the informed
    written consent or certification (or copy thereof) provided
    under paragraph (1)(A), and the name and address of any on-call
    physician (described in subsection (d)(1)(C) of this section)
    who has refused or failed to appear within a reasonable time to
    provide necessary stabilizing treatment;
  • (D) in which 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; and
    (E) which meets such other requirements as the Secretary may
    find necessary in the interest of the health and safety of
    individuals transferred.

• (d) Enforcement
  • (1) Civil money penalties
    • (A) A participating hospital that negligently violates a
      requirement of this section is subject to a civil money penalty
      of not more than $50,000 (or not more than $25,000 in the case of
      a hospital with less than 100 beds) for each such violation. The
      provisions of section 1320a-7a of this title (other than
      subsections (a) and (b)) shall apply to a civil money penalty
      under this subparagraph in the same manner as such provisions
      apply with respect to a penalty or proceeding under section
      1320a-7a(a) of this title.
    • (B) Subject to subparagraph (C), any physician who is
      responsible for the examination, treatment, or transfer of an
      individual in a participating hospital, including a physician
      on-call for the care of such an individual, and who negligently
      violates a requirement of this section, including a physician who
      -
      • (i) signs a certification under subsection (c)(1)(A) of this
        section that the medical benefits reasonably to be expected
        from a transfer to another facility outweigh the risks
        associated with the transfer, if the physician knew or should
        have known that the benefits did not outweigh the risks, or
      • (ii) misrepresents an individual's condition or other
        information, including a hospital's obligations under this
        section,
        is subject to a civil money penalty of not more than $50,000 for
        each such violation and, if the violation is is ^[2]
        gross and flagrant or is repeated, to exclusion from
        participation in this subchapter and State health care programs.
        The provisions of section 1320a-7a of this title (other than the
        first and second sentences of subsection (a) and subsection (b))
        shall apply to a civil money penalty and exclusion under this
        subparagraph in the same manner as such provisions apply with
        respect to a penalty, exclusion, or proceeding under section
        1320a-7a(a) of this title.
    • (C) If, after an initial examination, a physician determines
      that the individual requires the services of a physician listed
      by the hospital on its list of on-call physicians (required to be
      maintained under section 1395cc(a)(1)(I) of this title) and
      notifies the on-call physician and the on-call physician fails or
      refuses to appear within a reasonable period of time, and the
      physician orders the transfer of the individual because the
      physician determines that without the services of the on-call
      physician the benefits of transfer outweigh the risks of
      transfer, the physician authorizing the transfer shall not be
      subject to a penalty under subparagraph (B). However, the
      previous sentence shall not apply to the hospital or to the
      on-call physician who failed or refused to appear.
  • (2) Civil enforcement
    • (A) Personal harm
      Any individual who suffers personal harm as a direct result
      of a participating hospital's violation of a requirement of
      this section may, in a civil action against the participating
      hospital, obtain those damages available for personal injury
      under the law of the State in which the hospital is located,
      and such equitable relief as is appropriate.
    • (B) Financial loss to other medical facility
      Any medical facility that suffers a financial loss as a
      direct result of a participating hospital's violation of a
      requirement of this section may, in a civil action against the
      participating hospital, obtain those damages available for
      financial loss, under the law of the State in which the
      hospital is located, and such equitable relief as is
      appropriate.
    • (C) Limitations on actions
      No action may be brought under this paragraph more than two
      years after the date of the violation with respect to which the
      action is brought.
  • (3) Consultation with peer review organizations
    In considering allegations of violations of the requirements of
    this section in imposing sanctions under paragraph (1), the
    Secretary shall request the appropriate utilization and quality
    control peer review organization (with a contract under part B of
    subchapter XI of this chapter) to assess whether the individual
    involved had an emergency medical condition which had not been
    stabilized, and provide a report on its findings. Except in the
    case in which a delay would jeopardize the health or safety of
    individuals, the Secretary shall request such a review before
    effecting a sanction under paragraph (1) and shall provide a
    period of at least 60 days for such review.

• (e) Definitions
  In this section:
  • (1) The term ''emergency medical condition'' means -
    • (A) a medical condition manifesting itself by acute symptoms
      of sufficient severity (including severe pain) such that the
      absence of immediate medical attention could reasonably be
      expected to result in -
      • (i) placing the health of the individual (or, with respect
        to a pregnant woman, the health of the woman or her unborn
        child) in serious jeopardy,
      • (ii) serious impairment to bodily functions, or
      • (iii) serious dysfunction of any bodily organ or part; or
    • (B) with respect to a pregnant women ^[3] who is
      having contractions -
      ^[3] So in original. Probably should be ''woman''.
      • (i) that there is inadequate time to effect a safe transfer
        to another hospital before delivery, or
      • (ii) that transfer may pose a threat to the health or
        safety of the woman or the unborn child.
  • (2) The term ''participating hospital'' means hospital that has
    entered into a provider agreement under section 1395cc of this
    title.
  • (3)
    • (A) The term ''to stabilize'' means, with respect to an
      emergency medical condition described in paragraph (1)(A), to
      provide such medical treatment of the condition as may be
      necessary to assure, within reasonable medical probability, that
      no material deterioration of the condition is likely to result
      from or occur during the transfer of the individual from a
      facility, or, with respect to an emergency medical condition
      described in paragraph (1)(B), to deliver (including the
      placenta).
    • (B) The term ''stabilized'' means, with respect to an emergency
      medical condition described in paragraph (1)(A), that no material
      deterioration of the condition is likely, within reasonable
      medical probability, to result from or occur during the transfer
      of the individual from a facility, or, with respect to an
      emergency medical condition described in paragraph (1)(B), that
      the woman has delivered (including the placenta).
  • (4) The term ''transfer'' means the movement (including the
    discharge) of an individual outside a hospital's facilities at
    the direction of any person employed by (or affiliated or
    associated, directly or indirectly, with) the hospital, but does
    not include such a movement of an individual who (A) has been
    declared dead, or (B) leaves the facility without the permission
    of any such person.
  • (5) The term ''hospital'' includes a critical access hospital
    (as defined in section 1395x(mm)(1) of this title).

• (f) Preemption
  The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.

• (g) Nondiscrimination
  A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.

• (h) No delay in examination or treatment
  A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) of this section or further medical examination and treatment required under subsection (b) of this section in order to inquire about the individual's method of payment or insurance status.

• (i) Whistleblower protections
  A participating hospital may not penalize or take adverse action against a qualified medical person described in subsection (c)(1)(A)(iii) of this section or a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section.

Footnotes