Refusal of Consent to Transfer: What Happens Next Under EMTALA? (42 U.S.C. § 1395dd(c)(2))

Refusal of consent to transfer under 42 USC 1395dd(c)(2) places immediate obligations on any facility evaluating or treating a patient with a potential emergency medical condition. Small practices, especially those operating inside or adjacent to hospital campuses, must understand that EMTALA does not disappear when a patient refuses a physician-recommended transfer. Instead, the facility must provide continued stabilizing care, document refusal with precision, and ensure the refusal was truly informed. Failure to meet these standards exposes small practices and affiliated hospitals to federal penalties, malpractice risk, and reputational harm. This article outlines the required steps, documentation standards, and operational safeguards needed when a patient declines transfer recommended under EMTALA.

When a physician recommends transfer because a patient requires capabilities not available at the current facility, EMTALA mandates a very specific process. Under 42 USC 1395dd(c)(2), the patient or authorized representative may refuse transfer, but the refusal must be informed, documented, and accompanied by continued stabilizing efforts. For small practices functioning as hospital-based outpatient departments or urgent care extensions, this scenario is common, particularly when specialty capabilities are unavailable.

Understanding what happens after a patient refuses transfer is essential. Small practices must balance their limited clinical resources with federal requirements that protect patients from dangerous delays. This article focuses on actionable, resource-conscious methods for complying with EMTALA’s refusal-of-transfer provisions.

Understanding Legal Framework & Scope Under 42 USC 1395dd c 2

1. What the Statute Requires

42 USC 1395dd(c)(2) states that:

• A patient who requires transfer for appropriate stabilization may refuse that transfer.

• The refusal must be informed, meaning risks and benefits of the recommended transfer were explained.

• The refusal must be documented in writing and signed by the patient or their legal representative.

• The facility must continue treatment to the best of its capability after refusal.

2. Key Elements of Informed Refusal

For a refusal to be compliant:

• The physician must explain the risks associated with staying at the facility.

• The patient must be competent or represented by someone legally authorized.

• Documentation must include the physician’s recommendation and a statement that the patient refused despite understanding the risks.

• Witness signatures strengthen defensibility.

3. Federal vs State Interactions

• EMTALA establishes the federal baseline for refusal processes.

• States may add capacity-assessment requirements, involuntary hold standards, or specific consent language.

• EMTALA remains primary when an emergency medical condition is present; state law cannot weaken the federal refusal criteria.

4. Operational Importance

Failure to comply with 42 USC 1395dd(c)(2) can result in:

• CMS survey findings

• OIG civil monetary penalties

• Liability if deterioration occurs

• Reputational harm for the facility and affiliated physicians

Clear documentation and continuation of appropriate care reduce administrative conflict and protect patient safety.

CMS enforces EMTALA through investigations triggered by:

• Complaints from patients or families

• Reports of adverse outcomes following refusal

• Surveyor reviews of charts lacking refusal documentation

• “Unable to transfer” cases where evidence suggests refusal was mismanaged

OIG may impose civil monetary penalties when a refusal is improperly documented or when the facility ceases stabilizing efforts prematurely. The refusal does not release the facility from responsibilities under EMTALA; it simply modifies the pathway of care.

Common triggers include:

• Missing refusal signatures

• Lack of capacity assessment

• Failure to explain risks

• Sending the patient away after refusal rather than continuing stabilizing efforts

These enforcement triggers highlight the need for clear, repeatable processes.

The following controls ensure compliance with 42 USC 1395dd(c)(2) and support small clinics with limited staffing and equipment. Each control incorporates implementation steps, evidence to retain, and low-cost operationalization.

1. Real-Time Capacity Confirmation

Before accepting a refusal, staff must ensure the patient has decisional capacity.

• Implementation: Confirm orientation, ability to restate risks, and absence of impairment affecting choices.

• Evidence: Capacity statement included in physician note citing 42 USC 1395dd(c)(2).

• Low-cost option: Add a three-line capacity section to existing consent forms.

2. Risk-and-Benefit Explanation Script

EMTALA requires the physician to explain why transfer is recommended and what risks refusal poses.

• Implementation: Develop a short script addressing condition severity, limitations of current facility, and consequences of remaining.

• Evidence: Note stating “Risks and benefits explained per 42 USC 1395dd(c)(2).”

• Low-cost option: Laminated index card kept in exam rooms.

3. Informed Refusal Documentation

An informed refusal must be signed and timed.

• Implementation: Require both patient and witness signatures and explain that the refusal is against medical advice relative to stabilization needs.

• Evidence: Completed refusal form with risks, benefits, alternatives, and witness notation.

• Low-cost option: Printable template stored in a shared folder.

4. Continued Stabilizing Care Protocol

EMTALA requires stabilizing care to the limits of available resources after refusal.

• Implementation: Maintain vitals monitoring, oxygen support, medications, or interventions the facility is equipped to provide.

• Evidence: Serial vitals and treatment records after the refusal timestamp.

• Low-cost option: Hourly observation sheet.

5. Escalation and Re-Offer Mechanism

The physician must re-offer transfer if the patient worsens.

• Implementation: Set a re-evaluation interval based on symptoms (e.g., 30 minutes for chest pain).

• Evidence: Re-offer documented as “Transfer re-offered per 42 USC 1395dd(c)(2).”

• Low-cost option: Pre-filled checkboxes.

6. Authorized Representative Verification

If someone else is consenting or refusing, confirm their authority.

• Implementation: Note the relationship and why patient cannot sign.

• Evidence: Representative attestation.

• Low-cost option: Small verification section added to the refusal form.

7. Safe-Departure Instructions

If the patient insists on leaving, the facility must provide written instructions to reduce foreseeable harm.

• Implementation: Provide return precautions and follow-up recommendations.

• Evidence: Copy of instructions uploaded to chart.

• Low-cost option: Standard discharge sheets.

These actions ensure that refusal does not compromise EMTALA compliance.

Case Study

A 57-year-old woman arrived at a small hospital-based outpatient clinic with severe shortness of breath. The clinician determined she likely had unstable cardiac pathology and required transfer to a hospital with catheterization capabilities. The patient refused transfer, stating she did not want to be hospitalized away from home.

The clinician verbally warned her but failed to document the risks, did not obtain her signature, and did not provide continued stabilizing care after refusal. The patient collapsed an hour later in the parking lot. CMS initiated an investigation after the receiving hospital reported that no transfer request had been sent.

Consequences

• CMS cited the clinic for violating 42 USC 1395dd(c)(2) due to lack of documented informed refusal.

• OIG issued a monetary penalty for failing to provide stabilizing care after refusal.

• The clinic was required to adopt new EMTALA refusal-of-transfer protocols.

• The event was publicly posted in survey reports, causing reputational damage.

How the Playbook Would Have Prevented This

If the clinic had followed each step, capacity verification, informed refusal form, continued stabilizing efforts, and re-evaluation, the record would have demonstrated full compliance, mitigating both harm and liability.

Common Audit Pitfalls to Avoid Under 42 USC 1395dd c 2

Refusal-related citations often arise from preventable documentation gaps and misunderstanding of EMTALA duties.

• Failing to document capacity assessment, creating doubt about whether the refusal was valid.

• Not listing the specific risks explained, weakening informed refusal criteria under the statute.

• Stopping stabilizing care immediately after refusal, violating EMTALA’s ongoing duty.

• Lack of witness signature, reducing defensibility of the refusal form.

• Not re-offering transfer when condition worsens, allowing surveyors to cite continuity-of-care failure.

• Allowing a patient to leave without written instructions, increasing risk and liability.

Fixing these gaps strengthens compliance and reduces exposure to penalties tied directly to 42 USC 1395dd(c)(2).

Effective EMTALA refusal management requires leadership direction and consistent staff training. Practices should assign a single compliance owner to maintain refusal forms, audit documentation, and update training annually. Orientation for new clinicians should include a module on refusal-of-transfer obligations. Simple metrics, such as the number of refusals completed with full signatures and the average time between refusal and first reassessment, support internal monitoring. When leadership reinforces the importance of informed refusal, staff handle these high-stakes interactions with clarity and confidence.

Refusal of consent to transfer under 42 USC 1395dd(c)(2) is a legally significant event. Small practices must ensure refusals are informed, documented, and followed by continued stabilizing care. By applying structured, low-cost tools and clear processes, clinics can fully meet EMTALA obligations while protecting patients who decline recommended transfer.

Next Steps

1. Implement a standard Informed Refusal of Transfer Form.

2. Train staff on capacity assessment and risk explanation scripts.

3. Require real-time documentation and witness signatures for every refusal.

4. Add a re-evaluation schedule for all refusal cases.

5. Audit refusal documentation quarterly to verify completeness.

Recommended compliance tool

A shared “Medicare Plan Interaction” log and policy folder on your existing network or EHR, used to store scripts, training records, and any sponsor correspondence about beneficiary communications.

Advice:

Before the next open enrollment, walk through your clinic as an auditor would and remove or rewrite anything that could be interpreted as recommending one Part D plan over another.

• Emergency Medical Treatment and Labor Act (42 USC 1395dd)
  

• CMS State Operations Manual, Appendix V – EMTALA Guidelines
  

• Federal Register EMTALA Interpretive Guidance
  

• HHS Office of Inspector General – Civil Monetary Penalties Law Guidance