EMTALA & Ambulance Patient Offloading Times (APOT)

• EMS agencies have been struggling with extended Emergency Department patient offload times. This has been exacerbated over the last few years of the COVID-19 pandemic.
• This has impacted the ability of EMS agencies to provide services and respond to ambulance service requests. Additionally, it is impacting many public safety agencies that are responding to medical emergencies.
• Centers for Medicare & Medicaid Services (CMS) issued a memorandum on extended ambulance patient offload times and EMTALA in July 2006.
  • In the memorandum, CMS noted “Many of the hospital staff engaged in such practice believe that unless the hospital “takes responsibility” for the patient, the hospital is not obligated to provide care or accommodate the patient”
  • CMS stated that this practice may result in a violation of the Emergency Medical Treatment and Labor Act (EMTALA) and “raises serious concerns for patient care and the provision of emergency services in a community.”
  • Additionally, CMS notes that this practice may also result in a violation of 42 CFR 482.55, the Conditions of Participation for Hospitals for Emergency Services, which requires that a hospital meet the emergency needs of patients in accordance with acceptable standards of practice.
  • EMTALA defines[1] when a patient “presents” at an emergency department in the following way:

(1) Has presented at a hospital’s dedicated emergency department, as defined in this section, and requests examination or treatment for a medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual’s appearance or behavior, that the individual needs examination or treatment for a medical condition;

(2) Has presented on hospital property, as defined in this section, other than the dedicated emergency department, and requests examination or treatment for what may be an emergency medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual’s appearance or behavior, that the individual needs emergency examination or treatment;

(3) Is in a ground or air ambulance owned and operated by the hospital for purposes of examination and treatment for a medical condition at a hospital’s dedicated emergency department, even if the ambulance is not on hospital grounds. However, an individual in an ambulance owned and operated by the hospital is not considered to have “come to the hospital’s emergency department” if –

(i) The ambulance is operated under communitywide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance; for example, to the closest appropriate facility. In this case, the individual is considered to have come to the emergency department of the hospital to which the individual is transported, at the time the individual is brought onto hospital property;

(ii) The ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance; or

(4) Is in a ground or air nonhospital-owned ambulance on hospital property for presentation for examination and treatment for a medical condition at a hospital’s dedicated emergency department. However, an individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital’s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. The hospital may direct the ambulance to another facility if it is in “diversionary status,” that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital’s diversion instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department.

[1] 42 CFR § 489.24(b) – Special responsibilities of Medicare hospitals in emergency cases.

APOT Strategies

• EMS agencies who are experiencing extended ambulance patient offload times should engage the hospital leadership to collaborate to identify possible solutions. Often, we assume that the hospital leadership is aware that the EMS crews are being held for extended periods of time. Also, the hospital may not understand how APOT is impacting your organization and the overall EMS and public safety response.  Emphasize that EMS is one piece of a larger EMS system.
• EMS agencies should consider educating or reminding the hospital leadership about their obligations under EMTALA.
• Consider placing a transfer coordinator or another member of your staff to stay with patients during the transition between EMS and ED care. The EMS agency is under no obligation to do this and could set a precedent or expectation by the hospital that extended APOT is the EMS agency’s responsibility.  However, it may serve to free up valuable EMS resources.

EMTALA & APOT Frequently Asked Questions

1. Are EMS personnel required to remain with the patient until an emergency department personnel “accept” report or “takes over care” of the patient?

Answer: No, the EMS crew is not legally required to remain with the patient until the hospital personnel take a report or take over patient care.  As the EMTALA provisions above cite, the EMS crew may choose to remain with the patient but, as soon as that patient arrives on hospital property or enters the emergency department, the hospital is legally responsible for the patient.

2. What if the patient’s condition requires constant attention and the patient cannot be left alone without causing the patient harm?

Answer:  If the patient’s condition dictates that the patient cannot be safely left alone, the crew would have an ethical obligation to continue to care for the patient until care can be safely transferred to the appropriate caregiver. The EMS crew should continue to provide patient care and should contact a supervisor or Officer in Charge (OIC) at their agency to inform them of the situation and request assistance with facilitating the transfer of care.

3. What do I do if the emergency department staff fail/refuse to take a report or take over care of the patient?

Answer:  The EMS crew should attempt to provide a verbal report to an emergency department staff member if possible.  If no one is available, or the hospital staff will not make someone available to take a verbal report, the crew should tell an ED staff member that the EMS crew will be leaving the patient, where the patient was left and the patient’s general condition.  EMS providers should document how long they waited after arriving at the ED, where they left the patient, which ED staff member they notified, and the patient’s condition when they left in their patient care report.  EMS providers should be sure to leave a copy of their patient care report or an abbreviated patient care report with the hospital staff or with the patient.

In some states, extended APOT may be reportable to the state-level oversight agency, such as the state EMS Office or the Department of Public Health.

If hospitals are unresponsive to the initial conversation, you could also consider escalating the issue to your State Survey Agency, the agency primarily charged with taking EMTALA complaints.

We have created a draft letter for use in communicating with your State Survey Agency; be sure to update the draft letter to include specific examples and data that illustrate the particular issues your service is facing and the steps you’ve taken to try and resolve the issue so far.

4. Can I be accused of patient abandonment if I leave a patient in the ED without a member of the ED staff taking over the care of the patient?

Answer:  Because the legally becomes the hospital’s responsibility upon arrival on hospital property or upon arrival in the ED, it is highly unlikely that a claim of abandonment could be sustained.  The most important thing EMS providers can do is to exercise reasonable care of the patient before, upon, and after arrival at the ED.  EMS providers who reasonably attempt to furnish a report to the ED staff or who ensure that the patient can be safely left at the ED with either an abbreviated or full patient care report will likely be protected from liability.

Additional Resources