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Based on interview and review of hospital policies and procedures and other documents, it was determined that the hospital failed to fully develop written EMTALA policies and procedures to ensure that the hospital and the on-call physicians met their EMTALA obligations and that the hospital was in compliance with EMTALA requirements in the following areas:
* Recipient hospital responsibilities delineated at CFR 489.24(f). To accept transfers of patients with emergency medical conditions from other hospitals when it has the specialized capabilities not available at the transferring hospital and has the capacity to treat those patients.
* Non-retaliation and whistleblower protection delineated at CFR 489.24(e)(3). To not take adverse action against a physician or qualified medical personnel who refuses to transfer an individual with an emergency medical condition, or against an employee who reports a violation of these requirements.

Findings include:

1. Regarding recipient hospital responsibilities.

a. The "Bylaws and Rules and Regulations of the Professional Staff" for KSMC dated September 2018 included "Section I-H Attendance of Patients in Emergency Situations...The chief of each service shall establish policies and duty rosters of physicians, including physicians who serve on an 'on-call' basis, to provide coverage in emergency cases."

The bylaws and rules and regulations contained no provisions for KSMC's EMTALA recipient hospital obligations as those related to the on-call physician responsibilities.

b. The p/p titled "EMTALA (Emergency Medical Treatment and Active Labor Act)" with revision date of 06/01/2016 included: "The hospital will maintain a list of physicians who are on-call to come to the Emergency Department to consult or provide treatment necessary to stabilize a patient with an emergency medical condition. On-call physician responsibilities to respond, examine, and treat emergency patients are defined in the Medical Staff Bylaws."

The policy contained no provisions for KSMC's EMTALA recipient hospital obligations, including the related on-call physician responsibilities.

c. The p/p titled "On-Call Specialty Consultation" with revision date of 04/16 included: "The chief of each service shall establish rosters of physicians, including physicians who serve on-call basis, to provide coverage in emergency cases. The on-call physician will be available within 30-minutes by telephone. The on-call physician will be available in the Emergency Department within 60-minutes if he/she is required to examine and/or stabilize the patient with emergency or other medical condition...The purpose of an on-call physician roster is to ensure that the Emergency Department is aware of which physicians and specialists are available to provide consultation, and if necessary, treatment, to individuals with emergency medical conditions. To ensure timely, specialty consultation for patients who require further examination and/or admission."

The policy contained no provisions for KSMC's EMTALA recipient hospital obligations, including the related on-call physician responsibilities.

d. A "[KSMC]...Bed Requests - Transfers From Clinic or Hospital" workflow process chart dated 09/01/2018 and the "Request for Patient Transfer" workflow process chart dated 05/22/2018 outlined the KSMC internal process steps for responding to calls from other hospitals requesting transfer of patients to KSMC. Those one page charts did not contain EMTALA or policy language.

During interview with the ACS on 08/13/2019 at 1645 he/she stated that the transfer center calls coming in from other hospitals are not always requests for EMTALA transfers for further examination and stabilizing treatment by specialty services. The ACS stated that the transfer center calls also included calls from other hospitals who were seeking determinations related to non-EMTALA admissions and transfers of patients who were Kaiser members.

There were no corresponding written policies provided related to KSMC's EMTALA recipient hospital obligations, including the related on-call physician responsibilities.

e. The "EMTALA - Hospital-Based Physicians - Protecting Hospital-Based Clinicians from EMTALA Risk" training slides (power-point) dated 07/13/2017 included an overview of the EMTALA recipient hospital responsibilities requirement. This document was a physician training tool provided to physicians on hire and every other year. Although it broadly summarized the requirements and reflected the hospital's intention to comply, it was not a formal, approved written policy and procedure.

f. During interview with the ACS, CEM, SDHQPS, DHQPS and others on 08/14/2019 at 1525 it was confirmed that there were no formal, approved written policies and procedures related to EMTALA recipient hospital responsibilities and obligations. That was additionally confirmed in an email from the DHQPS on 08/21/2019 at 1249.

Although KSMC had an organized transfer center for managing transfer requests from other hospitals, it had workflow process charts that depicted broadly how the transfer center operates, and it had a training document that broadly summarized recipient hospital responsibilities, there were no formal, approved written policies and procedures as required by this regulation that ensured compliance with the EMTALA recipient hospital obligations and the related on-call physician responsibilities.

2. Regarding non-retaliation and whistleblower protection.

a. The p/p titled "EMTALA (Emergency Medical Treatment and Active Labor Act)" with revision date of 06/01/2016 contained no provisions for EMTALA non-retaliation and whistleblower protection.

b. The p/p titled "Non Retaliation" dated as effective 03/31/2017 was a general policy that contained no reference to EMTALA non-retaliation and whistleblower protection.

c. The undated "Principles of Responsibility - Kaiser Permanente's Code of Conduct" booklet contained no reference to EMTALA non-retaliation and whistleblower protection.