When Does EMTALA Allow the Transfer of an Unstabilized Patient? (42 CFR § 489.24(d))

EMTALA permits the transfer of an unstabilized patient only under narrow conditions that protect the patient and the receiving hospital. Under 42 CFR § 489.24(d), a hospital may transfer when either the treating physician certifies that the medical benefits reasonably expected from the transfer outweigh the risks, or the patient (or representative) requests the transfer in writing after being informed of the hospital’s obligations and the risks involved. In both pathways, the sending hospital must still provide treatment within its capability to minimize transfer risks, secure receiving acceptance, and ensure the patient is moved with appropriate personnel and equipment. Small facilities can meet this standard consistently by using a concise transfer packet, rehearsing acceptance workflows, and matching transport level to clinical risk.

For small and rural hospitals, the question is rarely whether a patient needs definitive care elsewhere; it is how to move an unstabilized patient compliantly. EMTALA recognizes that not every hospital can fully stabilize every emergency medical condition (EMC), yet it requires a disciplined process before the patient leaves. This article converts the regulatory requirements in 42 CFR § 489.24 into an operational blueprint: when transfer is legally permitted, what documents are mandatory, what treatments cannot wait, and how to record the decision so it stands up in a survey, complaint investigation, or OIG review.

Legal Framework & Scope Under 42 CFR § 489.24

Core sequence. EMTALA’s framework begins with an appropriate medical screening examination to determine whether an EMC exists (§ 489.24(a)). When an EMC is present and the patient is unstabilized, the hospital must provide “further medical examination and treatment” within its capability and capacity to stabilize the patient (§ 489.24(a), (b)). If full stabilization is beyond capability, transfer may occur if, and only if, the hospital meets appropriate transfer requirements in § 489.24(d).

Two lawful pathways for transferring an unstabilized patient.

1. Physician certification path: The treating physician signs a written certification that the medical benefits reasonably expected from the transfer to another facility outweigh the increased risks to the patient (and, if in active labor, to the unborn child). The certification must reflect the patient’s specific condition and risks, not generic boilerplate (§ 489.24(d)).

2. Informed patient request path: The patient (or a legally responsible person acting on the patient’s behalf) requests the transfer in writing after being informed of the hospital’s obligations to provide stabilizing treatment and the risks of transfer. The medical record must include that the patient was informed and nevertheless requested transport (§ 489.24(d)).
   

Elements of an appropriate transfer (required in both paths). The sending hospital must:

• Provide medical treatment within its capacity to minimize risks of transfer and deterioration (§ 489.24(d)).

• Ensure the receiving facility has agreed to accept the patient and has space and qualified personnel for the patient’s condition (§ 489.24(d)).

• Send relevant medical records, including history, exam, diagnostics, and treatment provided, plus the informed consent or physician certification. Records should accompany the patient or be promptly transmitted (§ 489.24(d)).

• Conduct the transfer with appropriate personnel and equipment, which means the transport modality (BLS, ALS, CCT, neonatal/OB specialty) must match patient risk (§ 489.24(d)).

Key definitions. Under § 489.24(b):

• Stabilize/Stabilized means providing treatment necessary to ensure, within reasonable medical probability, that no material deterioration is likely to occur during transfer or discharge.

• Stable for transfer means the treating physician has determined, within reasonable medical probability, the patient is unlikely to deteriorate materially during the transfer.

Federal floor and state overlay. States may impose additional transport or documentation requirements, but none can reduce the federal standard. Hospitals should meet the § 489.24(d) floor and then layer state EMS and specialty transfer rules.

Bottom line. You may transfer an unstabilized patient only when one of the two legal pathways is documented, and only as part of an appropriate transfer that includes treatment to minimize risk, acceptance by the receiving facility, and risk-appropriate transport.

CMS investigates EMTALA complaints and conducts surveys. OIG may impose civil monetary penalties for violations. Common triggers related to unstabilized transfers include:

• Missing physician certification or certification that lacks patient-specific risks and expected benefits.

• Transfer without documented receiving acceptance, or transfer to a facility lacking required capability.

• Use of inappropriate transport level (e.g., BLS for a patient on vasopressors).

• Failure to provide treatments within the hospital’s capability before transport, resulting in avoidable deterioration en route.

• Inadequate record transmission or lack of consent forms where transfer was patient-requested.

Hospitals that pair a transfer packet with time-stamped documentation of treatment, acceptance, certification, and transport selection tend to resolve audits favorably.

Below are targeted controls that translate § 489.24(d) into routine practice. Each includes implementation, evidence to retain, a low-cost method, and the regulatory anchor.

Control 1. Unstabilized Transfer Decision Tree

• Implement: Simple flowchart: EMC present → Can hospital stabilize? If no, pick one path: physician certification or informed patient request. Only then proceed to acceptance, treatment to minimize risk, and transport selection.

• Evidence: Signed physician certification or signed patient request; date/time stamps.

• Low-cost: One laminated page posted in ED workroom and embedded in EHR discharge/transfer navigator.

• Authority: Appropriate transfer conditions, § 489.24(d).

Control 2. Physician Certification Template (Patient-Specific)

• Implement: Prebuilt text with blanks for the actual condition, current vital risks (e.g., hypotension, airway threats), and the benefits at the receiving facility (e.g., cath lab, NICU, neurosurgery).

• Evidence: Completed, time-stamped certification in the chart prior to departure.

• Low-cost: EHR smart phrase with forced free-text fields (no generic boilerplate allowed).

• Authority: Physician risk–benefit certification, § 489.24(d).

Control 3. Informed Patient Request Protocol

• Implement: Script for clinicians to explain the hospital’s duty to stabilize, risks of transfer, and alternatives. Capture patient’s written request with the explanation summarized in plain language.

• Evidence: Signed patient request; note documenting that the patient was informed of obligations/risks.

• Low-cost: One-page form stored in triage and the ED clerk’s drawer.

• Authority: Patient-requested transfer criteria, § 489.24(d).

Control 4. Receiving Acceptance Workflow

• Implement: Assign charge nurse or case manager to secure acceptance; record facility, unit level, accepting clinician, date/time, and bed type.

• Evidence: Acceptance log and, when available, recorded or documented confirmation; fax/eFax or electronic acknowledgement.

• Low-cost: Shared spreadsheet or EHR field; sticky label with acceptance details on the transfer packet.

• Authority: Receiving agreement, space, and personnel requirement, § 489.24(d).

Control 5. Treatment to Minimize Risk Checklist

• Implement: Before departure, run a short checklist tied to the EMC: airway secured if indicated; IV access confirmed; pressor stabilized; antiplatelet given for STEMI where appropriate; fetal monitoring for active labor; seizure control initiated, etc.

• Evidence: Time-stamped interventions; pre-transport vitals and response.

• Low-cost: One-minute “read-and-sign” tick box attached to the EMS face sheet.

• Authority: “Medical treatment within capacity to minimize risk,” § 489.24(d).

Control 6. Transport Level and Equipment Algorithm

• Implement: Match BLS/ALS/CCT/neonatal to the patient’s needs: monitoring, airway, drips, OB capability, incubator. Specify required equipment (cardiac monitor, ventilator, pumps).

• Evidence: Transport orders and EMS capability checklist attached to packet.

• Low-cost: Laminated algorithm with examples; quarterly drill with EMS.

• Authority: “Appropriate personnel and equipment,” § 489.24(d).

Control 7. Records Transmission Bundle

• Implement: Ensure history, exam findings, key labs/imaging, medication list, interventions, and certification/patient request accompany the patient or are transmitted immediately.

• Evidence: Timestamped transmission receipts; copy placed in the chart.

• Low-cost: Pre-built fax/electronically queued packet in the EHR.

• Authority: Records provision requirement, § 489.24(d).

Control 8. Finance and Paperwork Firewall

• Implement: After EMC identification, nonclinical tasks (insurance, signatures not essential to emergency care) must not delay treatment or transfer.

• Evidence: Audit comparing treatment and transport time stamps versus registration steps.

• Low-cost: Two-line policy and monthly 10-chart spot check.

• Authority: Stabilization and transfer obligations take priority, § 489.24(a)–(d).

Case Study

Scenario: A 64-year-old with chest pain, hypotension, and new inferior STEMI arrives at a rural ED with no cath lab. Pressors are started; the patient remains unstable. The ED physician calls the regional PCI center, secures bed acceptance, and prepares transfer. The physician signs a certification noting elevated risk of arrhythmia and shock during transport but stating that immediate PCI access outweighs those risks. ALS CCT transport with monitor, defibrillator, vasopressor pump, and airway equipment is ordered. Pre-transport aspirin and heparin are given, and the 12-lead ECG, labs, and med list are sent ahead electronically and printed for EMS.

Outcome: The transfer occurs within the regulation: certification is patient-specific, treatment to minimize risk is delivered, the receiving facility acceptance is documented, and transport level matches risk. A complaint review would likely find the transfer appropriate under § 489.24(d) despite the patient being unstabilized at departure.

Contrast failure mode: If the hospital skipped pressors it could provide, used BLS transport, or lacked written physician certification, CMS could cite failure to minimize transfer risks and incomplete documentation under § 489.24(d).

Wrap-up: These audits create traceable proof that your team followed one of the two lawful transfer paths and satisfied every element of an appropriate transfer under § 489.24(d).

Risk Traps & Fixes Under 42 CFR § 489.24

Before each list item, remember that an unstabilized transfer is judged by whether the hospital minimized risk, secured acceptance, documented the legal path, and matched transport to the patient.

• Trap: Sending a patient without physician certification and without a signed patient request.
   Fix: Require one of the two legal bases in every case; build a hard stop in the EHR. § 489.24(d) consequence: transfer deemed inappropriate; exposure to penalties and corrective action.

• Trap: Generic certification language (“benefits outweigh risks”) without naming the actual risks or expected benefits.
   Fix: Force free-text of patient-specific risks (e.g., hypotension, airway compromise) and benefits (e.g., neurosurgical capability) in the template. § 489.24(d) expects clinical specificity.

• Trap: Failure to provide treatments the hospital can perform before transport (e.g., oxygen, bronchodilators, pressors).
   Fix: Use a “treat-to-minimize-risk” checklist and document vitals response pre-departure. This is required by § 489.24(d).

• Trap: No documented receiving acceptance or transfer to a facility without necessary capability.
   Fix: Log accepting facility, clinician, and unit before transport; attach acceptance to packet. § 489.24(d) mandates acceptance with capability and space.

• Trap: Inadequate transport level (e.g., BLS for a patient on vasopressors or in active labor).
   Fix: Apply the transport algorithm to match ALS/CCT/OB-neonatal teams and equipment to risk. § 489.24(d) requires “appropriate personnel and equipment.”

• Trap: Missing or late transmission of key records, causing delays at the receiving ED.
   Fix: Use a prebuilt records bundle; send electronically at acceptance and hand EMS a printed set. § 489.24(d) requires records accompany or be sent promptly.

• Trap: Financial or administrative processing introduced after EMC identification and before treatment/transport.
   Fix: Enforce the firewall policy; chart audits must show clinical steps were not delayed. § 489.24(a), (d) place clinical obligations first.

Wrap-up: These fixes target the exact failure points surveyors cite. Closing them reduces EMTALA risk while tangibly improving patient safety during transfer.

Roles and ownership.

• ED Medical Director: Owns certification templates, decision tree, and clinical content of the transfer packet.

• ED Nurse Manager: Owns acceptance workflow execution, risk-minimizing treatment checklist, and transport algorithm compliance.

• Case Management Lead: Owns acceptance documentation and records transmission.

• EMS Liaison: Owns alignment of transport capabilities, drills, and after-action reviews.

• Compliance Officer: Owns audit cadence, corrective actions, and policy updates.

Cadence and metrics.

• Monthly: Percent of unstabilized transfers with (a) physician certification or patient request, (b) documented acceptance, (c) appropriate transport level.

• Quarterly: Drill two scenarios with EMS (e.g., STEMI with shock; preterm labor) and review times from EMC identification to departure.

• Annually: Review and update transport agreements and receiving facility contacts.

Learning loop. Any variance triggers a brief root cause analysis and a five-minute huddle teaching point. The aim is consistency: every clinician, every shift, same compliant sequence.

EMTALA allows transfer of an unstabilized patient when, and only when, the hospital follows the precise conditions in 42 CFR § 489.24(d). Either the treating physician certifies that benefits outweigh risks, or the patient requests transfer after being informed. In both cases, the hospital must treat to minimize risk, secure acceptance, send records, and use appropriate transport. Small hospitals can operationalize this reliably with a disciplined packet, a hard-stop documentation flow, and transport rules that match clinical risk.

Immediate, concrete next steps:

1. Publish a one-page transfer packet that forces selection of physician certification or patient request before moving forward.

2. Build an EHR hard stop, so the transfer order cannot finalize without receiving acceptance details.

3. Add a 45-second risk-minimization checklist to pre-transport routines and capture vitals response.

4. Implement a transport level algorithm (BLS/ALS/CCT/OB-neonatal) and drill it with EMS quarterly.

5. Start a monthly unstabilized transfer audit using the checklist in Section 7, with quick corrective actions for any variance.

Compliance should be a living process. By leveraging a regulatory tool, your practice can maintain real-time oversight of requirements, identify vulnerabilities before they escalate, and demonstrate to both patients and payers that compliance is built into your culture.

• eCFR: 42 CFR § 489.24 — Special Responsibilities of Medicare Hospitals in Emergency Cases
  

• eCFR: 42 CFR § 489.24(b) — Definitions (including stabilize, stabilized, stable for transfer)

• CMS State Operations Manual, Appendix V — Interpretive Guidelines for EMTALA