<p>EMTALA FAQs: Is this an Appropriate Transfer?

EMTALA FAQs: Is this an Appropriate Transfer?

Hospitals with emergency departments (EDs) are familiar with EMTALA requirements to screen every individual who comes to the ED requesting examination or treatment for a medical condition to determine whether or not an emergency medical condition exists.1 If the hospital determines that an emergency medical condition exists, the hospital must provide either:

  • Further medical examination and treatment, within the staff and facilities available at the hospital, as may be required to stabilize the medical condition; or
  • An appropriate transfer of the person to another medical facility.2


Emergency medical condition—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:

  • 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;
  • Serious impairment to bodily functions; or
  • Serious dysfunction of any bodily organ or part; or

With respect to a pregnant woman who is having contractions:

  • That there is inadequate time to effect a safe transfer to another hospital before delivery; or
  • That transfer may pose a threat to the health or safety of the woman or the unborn child.3

Stabilize—The term “to stabilize” means, with respect to an emergency medical condition, 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 a pregnant woman who is having contractions, to deliver (including the placenta).4
Transfer—What constitutes an appropriate transfer under EMTALA can be an area of confusion. A “transfer” is defined broadly to mean 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. It does not include the situation where an individual leaves the facility without the permission of such person.5

CASE EXAMPLES: Are these appropriate transfers under EMTALA?

Scenario 1: A woman comes to the ED’s registration desk with complaints of a cough, and the clerk tells the woman that there is an urgent care clinic nearby that would be less expensive for her. The woman leaves without signing in. 

  • Response: While the clerk likely had good intentions, the woman was discouraged from staying by a hospital employee. She never received a screening exam to determine if her cough was due to an emergency medical condition (EMC). Hospitals may follow reasonable registration processes for individuals for whom examination or treatment is required under EMTALA, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.6

Scenario 2: A hospital is on divert status when an ambulance arrives in the driveway with a man expressing suicidal ideation. The EMS driver is advised that the hospital is on divert and to take the patient to the next closest hospital.

  • Response: The EMTALA screening requirement applies when an individual presents on hospital property and requests examination or treatment for what may be an emergency medical condition or has such a request made on his or her behalf.7 “Hospital property” means the entire main hospital campus, including the parking lot, sidewalk, and driveway. The definition excludes areas that are not part of the hospital such as physician offices, rural health centers, or other entities that participate separately under Medicare.8 Once an ambulance has already arrived on hospital property, the hospital cannot direct the ambulance away without providing a medical screening exam regardless of its divert status.

    In addition, an individual expressing suicidal or homicidal thoughts or gestures, if determined dangerous to self or others, would be considered to have an EMC.9 If an EMC exists, the hospital must provide any necessary stabilizing treatment or an appropriate transfer to another medical facility.10

Scenario 3: An on-call physician doesn’t want to accept a transfer across state lines because there are other facilities closer to the referring hospital.

  • Response: A hospital that has specialized capabilities (including, but not limited to, burn units, shock-trauma units, neonatal intensive care units, or, with respect to 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 receiving hospital has the capacity to treat the individual.11 The requirement to accept an appropriate transfer where the referring hospital lacks the capability or capacity to care for the individual applies to any Medicare-participating hospital with specialized capabilities regardless of whether the hospital has a dedicated emergency department. Hospitals that request transfers, however, must recognize that the appropriate transfer of individuals with unstabilized EMCs that require specialized services should not routinely be made over great distances, bypassing closer hospitals with the needed capability and capacity.12

Scenario 4: An ED patient requiring an appendectomy is transferred to another hospital even though a surgeon is available because there are “no beds.” 

  • Response: A hospital’s “capacity” encompasses such things as numbers and availability of qualified staff, beds, and equipment and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits.13 If a hospital has customarily accommodated patients in excess of its occupancy limits by whatever means (e.g., moving patients to other units, calling in additional staff, borrowing equipment from other facilities) it has demonstrated its ability to provide services to patients in excess of its occupancy limits.14


  1. COPIC has a sample informed refusal form that meets the requirements under EMTALA and can be downloaded at www.callcopic.com/resource-center/guidelines-tools/consent-forms 
  2. COPIC has an on-demand webinar that provides an overview of  EMTALA, which can be accessed at www.callcopic.com/education
  3. COPIC’s Legal Helpline is available (8am–5pm Mountain time, Mon–Fri) to answer questions about EMTALA. Please call (720) 858-6030
42 U.S.C. § 1395dd(a).
42 U.S.C. § 1395dd(b)(1).
42 U.S.C. § 1395dd(e)(1).
42 U.S.C. § 1395dd(e)(3)(A).
42 U.S.C. § 1395dd(e)(4).
42 C.F.R. § 489.24(d)(4)(iv). 
7 42 C.F.R. § 489.24(a)(1); 
   42 C.F.R. § 489.24(b).
42 C.F.R. § 489.24(b). 
CMS State Operations Manual, Appendix V, Tag A-2407.
10 42 C.F.R. § 489.24(a)(1)(ii).
11 42 C.F.R. § 489.24(f). 
12 CMS State Operations Manual, Appendix V, Tag A-2411.
13 42 CFR § 489.24(b).
14 CMS State Operations Manual, Appendix V, Tag A-2407.

Published: 3rd Quarter 2023

 Information in this article is for general educational purposes and is not intended to establish practice guidelines or provide legal advice.