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U.S. Code as of:
01/19/04
Section 1395dd. Examination and treatment for emergency medical conditions and women in labor
(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 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) or in
terminating a hospital's participation under this subchapter, 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. Except in the case in
which a delay would jeopardize the health or safety of
individuals, the Secretary shall also request such a review
before making a compliance determination as part of the process
of terminating a hospital's participation under this subchapter
for violations related to the appropriateness of a medical
screening examination, stabilizing treatment, or an appropriate
transfer as required by this section, and shall provide a period
of 5 days for such review. The Secretary shall provide a copy of
the organization's report to the hospital or physician consistent
with confidentiality requirements imposed on the organization
under such part B.
(4) Notice upon closing an investigation
The Secretary shall establish a procedure to notify hospitals
and physicians when an investigation under this section is
closed.
(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 woman who is having
contractions -
(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 a 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.
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