GAO report gives mixed messages on EMTALA
GAO report gives mixed messages on EMTALA
In a General Accounting Office (GAO) report released June 22, many hospitals and physicians contend that more patients visit the emergency room for nonurgent services, resulting in overcrowding and delays because of EMTALA.
But GAO says the jury still is out on the overall impact of EMTALA because there are no data on the incidence of patient dumping prior to its enactment. Moreover, the only measure of current incidence — the number of confirmed violations — is imprecise, the agency adds.
Some providers also argue that fewer physicians are joining hospital staffs and participating in emergency department on-call panels because EMTALA forces them to provide uncompensated care. But again, GAO says that other factors such as the ability to perform procedures in nonhospital settings may have reduced those incentives for certain specialists to serve on hospital staffs.
Some hospitals and physicians expressed significant confusion regarding the scope of EMTALA, GAO reports. In fact, more than 40% of emergency physicians and more than 60% of emergency department directors recently told the Department of Health and Human Services’ Office of Inspector General that parts of EMTALA are unclear.
Hospitals and physicians have told GAO they have questions about how a medical screening exam differs from initial triage or a general exam, how EMTALA applies to certain on-campus and off-campus hospital departments, and how much follow-up care they are obligated to provide to emergency department patients.
The total number of EMTALA violations and fines still is small. On average, since 1995, the Centers for Medicare and Medicaid Services (CMS-formerly the Health Financing Adminstration) regional offices have directed state survey agencies to investigate about 400 hospitals yearly and have cited about half of them for EMTALA violations.
From 1995 through 2000, the OIG imposed fines totaling more than $5.6 million on 194 hospitals and 19 physicians, reports GAO. The majority of fines were $25,000 or less.
EMTALA experts say those numbers don’t tell the full story, however. Health care attorney Lowell Brown, of Foley & Lardner in Los Angeles, says the biggest problem with EMTALA is not that it is responsible for emergency room overcrowding or even the fines that are associated with it. The biggest problem is that doctors, nurses, and other hospital staff are very preoccupied by EMTALA, and providers that face an EMTALA violation are forced to divert significant resources from other areas.
"EMTALA is like a virus that has infected almost every part of the hospital," he asserts. "That is very hard to measure."
As for the GAO report itself, Brown says there is good and bad news. The good news is that providers have a document that reflects some of the major concerns providers have about EMTALA from an official government agency. The bad news is that the report itself is ambivalent.
Health care attorney Steve Lipton, a partner with Davis Wright in San Francisco, agrees that many aspects of the GAO report are disappointing. For one thing, it does not address whether EMTALA has exceeded legislative intent, he says. "It does address the concerns of providers about the expansion of EMTALA to off-campus," he explains. "But it does not look at all at expansion of EMTALA to the inpatient side."
Brown also raised concern about GAO’s recommendation to establish an advisory group of EMTALA stakeholders to provide guidance to surveyors in applying the law. "The government has a tendency to expand the law beyond its original intent every time they interpret it," he argues. "When there is an ambiguity, they always err on the side of broadening the obligations of providers."
Another area that continues to vex providers is the final Stark II regulations, which also were swept up in the administrative freeze imposed by the incoming Bush administration. In the case of the Stark II self-referral regulations, a final rule has already been published. However, CMS officials have been prohibited from answering the inevitable questions that have surfaced about the complex regulations.
To see the entire GO report, go to www.gao.gov.
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