Hospitals across the country have been contacting me in the past few days with the same question — receiving hospitals are demanding we sign sketchy transfer agreements. How does that fit with EMTALA? The answer, unfortunately, is not clearly addressed in EMTALA, but CMS representatives have expressed their enforcement views on the subject over the years — mostly indicating the limits of such agreements when it comes to EMTALA.
I am not aware of any recent pronouncements from CMS, but over the years, their position has generally encouraged transfer agreements to facilitate the prompt and effective flow of patients. They have been quick to emphasize, however, that the presence or absence of a transfer agreement does not change the rules for EMTALA transfers.
Among the CMS comments I have encountered are:
- If you have a transfer agreement, you still have to get advance acceptance for the specific patient you are seeking to transfer under EMTALA.
- Having a transfer agreement does not change the necessary documentation for an EMTALA transfer.
- Having a transfer agreement does not change the requirement that the sending hospital under EMTALA must provide medical screening and care within its capabilities to minimize the risks of transfer.
- Having a transfer agreement does not change the requirements for a medically appropriate transfer.
- Having a transfer agreement does not change the EMTALA requirement to render care regardless of means or ability to pay for the sending or receiving facility.
Current questions, however, have been centering on the issue of “transfer back.” On that issue, CMS advised in several of my cases that “transfer back” is a permissible provision in a transfer agreement as long as three criteria are included:
- The receiving hospital has rendered necessary care and has determined that the patient is no longer in need of the specialized services of the higher level of care that justified the initial transfer
- The original hospital agrees that it is capable of providing care for the patient’s current condition and has the capacity to accept the patient back
- The patient consents in writing to the return transfer
Many of the transfer agreements I have reviewed have failed to address these three elements. 
Most of the concerns I have heard expressed on these elements is that smaller hospitals frequently receive “transfer back” patients that are represented as able to return to the lower level environment, only to have them arrive in a condition that overwhelms the smaller hospital capabilities and often requires another transfer to the higher level of care facility within hours or days.
Sketchy transfers back can lead to citations for violation of the CMS Conditions of Participation, but EMTALA is unlikely to apply to a transfer back situation in most instances.
Can a Critical Access Hospital who transferred a patient to a higher level of care take a patient back into an inpatient status or do they have to come back in a swing bed status? We have a transfer back agreement but they have always came back to us in swing bed, just recently the higher level of care hospital wanted to send the patient back as they fixed the cardiac issue and wanted to send them back as inpatient so that we could take care of the initial admission for cellulitis. Is that allowable?
I have been advised by CMS that transfer back agreements are permitted in standing transfer agreements if:
1. The patient reasonably can be considered stable for care at the hospital that originally transferred to higher level of care
2. The originating hospital agrees that it can care for the patient
3. The patient consents in writing
I personally would not consider the patient as stable, but that is decided on a case by case basis by CMS.