Supplement-EMTALA and the Pediatric Emergency Department
EMTALA and the Pediatric Emergency Department
Author: Joseph Zibulewsky, MD, MHS, FACEP, FAAP, Assistant Medical Director, Department of Emergency Medicine, Baylor University Medical Center, Dallas, TX; Clinical Assistant Professor, Department of Surgery, Division of Emergency Medicine, University of Texas, Southwestern Medical Center, Dallas.
Peer Reviewers: David Freedman, MD, JD, FAAEM, Emergency Medicine Physician, Chelsea Community Hospital, Chelsea, MI; Attorney, Miller, Canfield, Paddock and Stone, PLC, Ann Arbor, MI; and Georges Ramalanjaona, MD, DSc, FACEP, Associate Professor of Emergency Medicine; Associate Chairman for Academic Affairs, Department of Emergency Medicine, Seton Hall University, South Orange, NJ.
The year is 1985. It is the start of the 7 p.m. shift in the emergency department (ED) at a busy, private, inner-city hospital. The waiting room is filled to capacity, and it will be three hours before most of the patients see a physician. The ambulance bay is a parking lot.
The attending ED physician goes outside to inquire about the patients in those ambulances. He makes his way to the back of the first ambulance in line and sees a woman sitting on the gurney holding her 2-year-old son on her lap. In her hand is an oxygen mask delivering a nebulized albuterol treatment to the child, who appears to be in moderate respiratory distress with retractions and audible wheezes, although he is pink and seems alert. The physician asks the woman who their doctor is, and she replies that they go to the county clinic when they need to. At that, the ED physician directs the paramedic to take them to the county hospital across town that is affiliated with the clinic. Without hesitation, the paramedic closes the back door of the ambulance and drives away. The physician moves on to the next ambulance. The following day, the vice-president of the private hospital receives a phone call from the medical director of the county hospital’s ED, telling her that the same child who was turned away the day before arrived at the county facility in respiratory arrest and is now intubated in the intensive care unit (ICU).
Those physicians who entered the practice of emergency medicine and pediatric emergency medicine within the last 10 years likely cannot imagine this scenario, but, for those practicing prior to 1986, it was not an uncommon event. Similar stories about the practice that came to be known as patient dumping eventually made their way to Washington, DC. In 1986, Congress attempted to stop patient dumping and ensure patient access to emergency care by passing the Emergency Medical Treatment and Active Labor Act (EMTALA) as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). This mere four pages of legislation has created a storm of controversy and litigation, a storm that shows no sign of relenting.
All health care providers need to be aware of the legislation, but none more acutely than those physicians, nurses, and administrators who are most affected by it: those in the ED. This article summarizes the historical background of EMTALA, reviewing the legislation as it was originally written. More importantly, it will review the ensuing interpretations and litigation that have affected its enforcement. Discussion will include some of the major court decisions that have resulted from the statute, its impact on managed care, what occurs during an investigation of a hospital, and the monetary impact of the law. While the statute includes no specifics about pediatric patients and applies equally to all age groups, there certainly have been specific cases that have involved the pediatric population. Thus, a general understanding of the law will benefit both general and pediatric emergency physicians.
—The Editor
History of EMTALA
At best, the EMTALA statute is a sweeping anti-discrimination law for health care that guarantees citizens access to emergency services and, in turn, to the health care system. At worst, it is yet another unfunded federal mandate aimed principally at hospitals and doctors. In 1986, two articles appeared in the literature detailing the extent of patient dumping to Cook County Hospital in Chicago. Patient dumping was defined as the "denial of or limitation in the provision of medical services to a patient for economic reasons and the referral of that patient elsewhere."2 The main article, published in the New England Journal of Medicine,3 found the problem to be endemic and dangerous to patients. During a one-month period in 1983, 89% of the 467 transfers to Cook County Hospital were minorities, and 81% were unemployed. The reason given for initiating the transfer was lack of insurance in 87% of the cases, while need for specialty care, lack of beds at the transferring facility and patient request made up the remainder. Only 6% of the patients had given written informed consent for their transfesr. Medical service patients who were transferred were twice as likely to die than those who were treated at the transferring hospital, and it was believed that 24% of the patients were transferred in unstable condition. It was concluded that this practice was done primarily for financial reasons and that it greatly delayed care, jeopardizing patient welfare. An article by the same authors in the Journal of the American Medical Association analyzed the problem further in terms of social policy.2 The authors noted that patient transfers in Dallas had increased from 70 per month in 1982 to more than 200 per month in 1983. In Washington, DC, they had increased from 169 per year in 1980 to 930 per year in 1985. The majority of these transfers were thought by the authors to be for financial reasons.2 Mainstream media reported that even some Medicaid patients were transferred to other facilities because such patients offered less profit opportunity than patients with commercial insurance.
The 1980s saw the impact of two decades of rapidly rising health care costs and the attempts by the federal government to reign in those costs by reducing programs for the indigent and reducing reimbursement to hospitals and doctors. All of this put pressure on private hospitals to reduce lost revenues. Some believed that public hospitals existed specifically for the care of the local indigent population, and the argument was made that transfers to them were not "dumping" but merely sending the patients to the appropriate facility.
The ironic twist to this story is that, at the time EMTALA was being written in Congress, there already existed safeguards for indigent patients. These guidelines didn’t have the force of law, and were being wholly ignored by private hospitals and doctors. The Joint Commission on Accreditation of Hospitals (JCAHO) stated that "individuals shall be accorded impartial access to treatment or accommodations that are available or medically indicated, regardless of race, creed, sex, national origin, or sources of payment for care."4 The guidelines of the American College of Emergency Physicians stated that "emergency care should be provided to all patients without regard to their ability to pay."5 The Hospital Survey and Construction Act of 1946 (commonly called the Hill-Burton Act) also established emergency care requirements. Many states also had laws mandating emergency care without regard for payment and requiring that patients be stabilized prior to transfer.2
The combination of reports in the professional and lay press, the obvious impotence of existent laws, and the increasing presence of the federal government in health care, ultimately led to the enactment of EMTALA. It is interesting to note that the authors of a 1987 article on the social policies regarding transfers in the Journal of the American Medical Association made brief mention of EMTALA (since it had only recently been passed), noting "monitoring, enforcement and the effectiveness of this federal law will be crippled" by its vague definitions of emergency care and stabilization.2 These authors, although prescient in their assessment of the ambiguities of the statute, could not have been more wrong about the impact of this "new" federal law.
EMTALA: The Law in Its Own Words
Theoretically, the main emphasis of EMTALA was to ensure access to emergency medical care and the non-discriminatory treatment of emergency patients. In other words, patients with similar emergency medical conditions (EMCs) should be treated similarly by hospitals and physicians regardless of their ability to pay. However, the practical ramifications of EMTALA have broadened over the years, and arise from three sources: the law’s initial language (all readers are encouraged to read the original statute);6 the interpretive guidelines that have been issued by the Centers for Medicare and Medicaid Services (CMS, previously known as the Healthcare Financing Administration) since the law’s inception; and the various court cases that have resulted from alleged EMTALA violations. The first two will be discussed in this section and the court cases in the next.
Since the enactment of the original law, CMS, as the agency mandated to enforce it, has issued a number of regulatory guidelines, from its initial "interim final patient transfer regulations" in 1994 to its most recent issue in the spring of 2000.7 These regulations have the force of law and are not merely suggestions. Thus, much more than the statute itself, CMS has defined what EMTALA actually means in practical terms. This is ironic, since when the law was written it was considered so straightforward as to be "self-enforcing," and thus not in need of further interpretive guidelines.8 Since CMS is the agency that investigates alleged violations, close adherence to its regulations is mandatory. One problem with this is that CMS has 10 regional offices across the country, each responsible for investigating violations in its region. Although each regional office follows federally mandated guidelines for its investigations, a recent study from CMS found that investigation methods and findings varied widely between offices.9 In addition, legal challenges to CMS’s decisions can go to one of 10 Federal Circuit Courts of Appeals (See section on courts), all of which could potentially interpret the law differently. Medical directors should be aware of the CMS citations and respective Circuit Court decisions in their regions to better understand how they may be judged should an investigation be launched against their ED or hospital.
EMTALA imposes three distinct legal duties on hospitals. According to the statute, only those facilities that participate in Medicare are included, but this encompasses almost 98% of all U.S. hospitals. First, hospitals must perform a medical screening examination (MSE) to determine whether an EMC exists. Second, if an EMC exists, hospital staff must either stabilize that condition to the extent of their ability or transfer that patient to another hospital with the appropriate capabilities. Finally, hospitals with specialized capabilities or facilities (e.g., burn units) are required to accept transfers of patients in need of such specialized services if that hospital has the capacity to treat them. Let us now look at each one of these mandates individually using the statute’s own language and CMS’s ensuing regulations.
The Medical Screening Examination (MSE)
EMTALA states "In the case of a hospital that has a hospital emergency department, if any individual.comes to the emergency department and a request is made.for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department to determine if an emergency medical condition exists."6
Furthermore, it prohibits any participating hospital from delaying such screening examinations or further care "in order to inquire about the individual’s method of payment or insurance status."6 Recent CMS rulings have stated that it is acceptable to obtain basic demographic information on patients prior to the MSE, and this may even include information on insurance status, but calls for insurance verification or authorization for treatment (See section on managed care) should not unduly delay the MSE. It also is unwise to delay the MSE in the case of minors to wait for authorization from the parents or guardians.
Which patients are covered by this law? "Any individual" means just that: any person who presents for care of an EMC, regardless of whether that person is a Medicare patient or even a U.S. citizen. The only instances where this does not apply is when the person does not have an EMC or if his condition is "stabilized," as defined by the statute. (See Tables 1 and 2.) This is an important concept. As far as EMTALA and the federal courts are concerned, these terms are now legally defined, not terms to be defined by a series of expert witnesses. Since there is no way to determine whether someone has an EMC or is stable without an evaluation, virtually all patients presenting to an ED qualify for an MSE. Exceptions have been made for persons presenting to the ED at the request of their private physicians merely to get a laboratory test done, or to receive a shot of antibiotics over the weekend for a condition that already has been evaluated. What about those in custody who are brought to the ED by the police to have an alcohol level done? Could they be considered seeking medical care and require an MSE? Thus, with extremely few exceptions, all patients who present to the ED should be afforded an MSE to identify and document if any EMC exists. If none exists, document that.
| Table 1. EMTALA Definition of "Emergency Medical Condition"6 | ||||||||
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"A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: a. placing the health of the individual (or, with respect to a preg- nant woman, the health of the woman or her unborn child) in serious jeopardy; b. serious impairment to bodily functions; or c. serious dysfunction of any bodily organ or part; or d. with respect to a pregnant woman who is having contrac- tions: i. that there is inadequate time to effect a safe transfer to another hospital before delivery; or ii. that transfer may post a threat to the health or safety of the woman or the unborn child." |
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| Table 2. EMTALA Definition of "Stabilized"6 | ||||||||
| "To provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, [for a pregnant woman] that the woman has delivered (including the placenta)." |
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What about the phrase "comes to the emergency department?" Sounds simple enough. Someone walks, or is brought in by ambulance, to the ED and has a complaint. What if he collapses on the sidewalk in front of the ED, or gets chest pain in the hospital’s gift shop? What about pregnant women presenting to labor and delivery? Or, what if someone is shot outside the ED? Does it matter if he is on public property at the time? What if he is 10 feet away from the ED door, or 200 feet away? Which of these patients is considered to have "come to the emergency department" and, therefore, must receive an MSE?
Although the statute states that only hospitals with an ED are subject to its rules, subsequent regulations by CMS and court rulings have significantly extended the meaning of "emergency department." It is not limited to a designated physical space in the hospital, but can refer to any area of the hospital where patients can present for the evaluation and treatment of medical conditions. Thus, labor and delivery, hospital-owned clinics, urgent care facilities, and psychiatric facilities of the hospital may be included. Even hospital-owned clinics not on property contiguous with the hospital are included, if the clinic uses the same Medicare billing number as the hospital. In addition, this can include ambulance services owned and operated by the hospital. Thus, once a patient is inside such an ambulance, he or she is considered to have come to the ED.
However, a ruling in February 2001 by the 9th Circuit Court extends hospital’s EMTALA obligations further, beyond their own ambulance services to those of city and county EMS. The case involved a man with chest pain being brought to a hospital in Honolulu by an ambulance owned and operated by the city. The paramedics contacted the hospital’s ED, notifying them of their arrival. The ED physician allegedly requested that the ambulance go to the local Army hospital, where the patient’s private physician was. The time delay to the other hospital was minimal, but the patient died about 30 minutes later. The Court, in a 2-1 decision, ruled that a hospital cannot escape its EMTALA duties to a patient coming to it in any ambulance, unless it is on diversionary status, essentially negating the distinction, previously thought valid, between hospital-owned and public ambulance services. The Court did not define the meaning of "diversionary status," except to note that it implies the hospital does not have the staff or facilities to care for more patients. This case underscores the volatility in the intent and enforcement of the law and emphasizes the need to continually keep up with new rulings both by CMS and the courts.
It is crucial that one be aware of all the areas of the hospital where a patient can present for care and have written protocols for when a patient presents for care on hospital property, but not necessarily in the ED. Clearly, if a patient presents in the hospital’s psychiatric ward for care and there is a need for medical clearance, sending that patient to the ED does not constitute a formal transfer (See section on transfers), and all the requisite paperwork need not be filled out. In fact, the movement of patients between two areas of a hospital or facility that have the same Medicare billing number usually is not considered a formal transfer, although the hospital should have written protocols for their movement, especially for non-patients or visitors who suffer EMCs on hospital property. CMS’s most recent guidelines have defined the hospital "campus" to include structures that are not strictly contiguous with the main building, but are located within 250 yards of the main building.7 In addition, the new guidelines have increased the responsibilities of the staff at these satellite clinics and facilities (e.g. outpatient surgery centers, outpatient laboratories, radiological services), to include knowledge of and compliance with EMTALA requirements. Thus, a person presenting for care at a hospital clinic away from the ED could potentially require an MSE, and the staff at that facility will need to know what that entails and, if an EMC is suspected, will need to know how to transfer that patient to the ED (including obtaining patient consent and completing a memorandum of transfer document). In addition, performance of the MSE cannot be delayed to collect payment, just like in the ED.
Thus, EMTALA is not just an ED requirement any more, and ED directors most likely will be called upon by the hospital for assistance in bringing non-contiguous, on-campus sites into compliance. It will be necessary for hospitals to first identify all facilities on its "250-yard" campus that will fall under these guidelines, identify key personnel, both physician and non-physician, at these facilities, who would be in charge of enforcing protocols, and educate them in the meaning and significance of EMTALA law.
The concept of an "appropriate medical screening examination" also is fraught with interpretive nightmares. What constitutes this screening examination never has been specifically defined by CMS or the courts, but a few things are clear. It does not merely include a history and physical, but is an ongoing process that only ends when an EMC has been ruled out or stabilized. Thus, laboratory tests, computed tomography (CT) scans, and consults by specialists all can be included in the term "screening exam." For obstetric patients, it includes monitoring of fetal heart tones, cervical dilation, etc. For psychiatric patients, it includes assessment and documentation of suicide attempt or risk. For myriad other patient complaints, the over-riding question becomes: Was the screening exam for similar complaints the same for all patients, regardless of their insurance status or ability to pay? Where hospital protocols exist and were followed, the courts generally have found that no EMTALA violation existed, as long as the protocols themselves did not violate EMTALA principles.11 It sounds appealing to just have reams of written protocols for every major presentation, such as chest pain and fever, but beware. Any substantive deviation from a hospital’s or ED’s written protocol may be considered strong evidence of an EMTALA violation and may be used in state malpractice cases. Where no specific protocols exist, CMS and the courts will look to see if other patients with the same complaint received more thorough evaluations. If they did, the burden is on the hospital to justify this. Since it is impossible to have written protocols for all the possible complaints that can present to an ED, EMTALA makes it even more critical to document and justify your evaluation of every patient. The statute also does not designate who can perform the MSE, but merely states it should be "qualified medical personnel." Who is that? Doctors? Nurses? Physician assistants? Technically, it can be anyone, although the triage exam done by nurses clearly is not the equivalent of an MSE. The hospital, in its bylaws or rules and regulations, can designate personnel other than physicians who may conduct MSEs but, in general, it is best if MSEs are performed by physicians, as reflected in the American College of Emergency Physicians clinical policy on the issue.12
Because on-call physicians may assist with MSE or patient stabilization in the ED, it has been interpreted that essentially all physicians with privileges at a hospital have obligations under EMTALA. Before EMTALA, the on-call list was considered a responsibility of medical staff membership at a hospital. It also was a way for young physicians to build their practices. One of the problems today is that physicians in managed care plans get most referrals through their plans, and no longer have a need to be on call for the hospital.13 Thus, since EMTALA, there has been a great deal of friction between on-call physicians and EDs. Many on-call physicians do not understand the ramifications of EMTALA, and feel that they do not have to come in to see a patient at the "whim" of the emergency physician. CMS guidelines require hospital EDs to have on-call lists displayed in the department daily, and maintain the lists on file for five years. Although it usually falls on the individual departments to actually create their on-call schedules, EMTALA makes the hospital responsible for them. This usually is accomplished through hospital bylaws. What constitutes an appropriate call list? Generally, any service that the hospital routinely offers must be represented on the list. Thus, if the hospital does not do orthopedic surgery or have a psychiatric unit, then these physicians need not be on the call list.
What if the hospital does orthopedic surgery, but only has one or two orthopedists? CMS uses a rule of threes. If there are three or more specialists on staff, then the call list must include them daily. If there are fewer than three, the hospital can have them on call intermittently, for example every second or third day, as long as the hospital by-laws state this.
What if the hospital performs complicated spinal surgeries, but the particular orthopedist on call when a patient with a ruptured disk rolls into the ED states that he does not do backs and requests the patient be transferred elsewhere? This can be considered a violation, especially if CMS investigates and finds evidence that spinal surgeries are done at the hospital, but this patient was refused such care and sent away. Since EMTALA makes it the hospital’s, not the individual physician’s, responsibility to establish on-call panels, it is the hospital that is ultimately responsible if services it normally provides are not covered on those panels. Thus, to remedy the situation noted above, it might be necessary for the hospital to establish a separate on-call list for spinal problems.
On-call physicians must realize that, when they are on-call, they do not represent their physician groups or even themselves: They represent the hospital. Thus, if a medical problem on which they have been asked to consult in the ED is beyond their particular scope of practice but one that is usually managed at their hospital, it may be considered their responsibility to find someone to care for the patient.
EMTALA citations have been made due to the failure of the on-call physician to appear when called or appearing late, which has generally been accepted to be more than 30-60 minutes after being called. Although this time is not a rule according to CMS, New Jersey and West Virginia have state laws mandating an ED specialty consultation within 30 minutes of being called.14 Should the on-call physician refuse to appear or appear late, the emergency physician is responsible for reporting this to CMS. In addition, if it is well documented in the chart that all efforts were made to obtain on-call consultation (e.g., calling the head of the department or the hospital administrator), the ED physician should not be subject to sanctions for transferring the unstabilized patient.
Be wary if the on-call physician asks that you send the patient to his or her office. This is a common practice among ophthalmologists, since they have specialized equipment in their offices to examine the eye and, in fact, may afford the patient a better evaluation than if it was done in the ED. If the patient has been stabilized, according to the EMTALA definition, and the documentation supports this, then sending the patient elsewhere for further care is not a formal transfer, as far as paperwork is concerned. However, if the patient has not been stabilized, then sending them to a private doctor’s office does constitute a formal transfer, and appropriate paperwork and consents must be obtained, and it must be well documented that the benefits offered in the private doctor’s office outweigh the risks of the transfer. For instance, if the patient has a displaced fracture, and your orthopedist instructs you to send them to his or her office, it might be considered a violation if the fracture was not reduced first, since the office care was not truly follow-up in nature, but part of the stabilization.
Another potential liability issue is the private physician who is called by the ED staff when one of his or her patients arrives in the ED and requests that the patient be put in a room so he or she can examine the patient. Unless the patient requests to be examined by his own physician and this is documented in the chart, a lengthy delay until the private physician arrives could be interpreted as delaying the patient’s MSE. This is rarely a good idea.
The on-call physician’s role in EMTALA, although well delineated in the statute and by CMS, will continue to be a contentious one, fraught with legal perils, especially if the hospital staff is not well educated about EMTALA or feel that they are beyond its reach.
Stabilize or Transfer?
As to the second mandate, EMTALA states that if the patient is determined to have an EMC, as defined by the statute, the hospital must provide "within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or for transfer of the individual to another medical facility."6 Furthermore, if the EMC has not been stabilized, the hospital may not transfer the individual unless: 1) "the individual requests transfer to another medical facility," after being informed by the hospital of the risks of transfer and of the hospital’s obligation to stabilize; or 2) "a physicianhas signed a certification based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child." Finally, the transfer, as defined by the statute, must be an "appropriate" transfer, the requirements of which are outlined in Table 3.
| Table 3. EMTALA Definition of "Appropriate Transfer"6 | ||||||||
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An appropriate transfer to a medical facility is a transfer: "in which the transferring hospital provides the medical treat- ment within its capacity which minimizes the risks to the individ- ual’s health and, in the case of a woman in labor, the health of the unborn child; in which the receiving facility: has available space and qualified personnel for the treatment of the individual; has agreed to accept transfer of the individual and to provide appropriate medical treatment; in which the transferring hospital sends to the receiving facility all medical records (or copies), related to the emergency condi- tion for which the individual has presentedand; the name and address of any on-call physicianwho has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment. In which the transfer is effected through qualified personnel and transportation equipment; and which meets such other require- ment as the Secretary [of Health and Human Services] may find necessary in the interest of the health and safety of individ- uals transferred." | ||||||||
| Table 4. List of Documents Required by CMS During an EMTALA Investigation36 | ||||||||
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1. ED registration log for the previous six months 2. ED policy and procedure manual 3. ED transfer log 4. ED committee meeting minutes for past 12 months 5. ED physician’s schedule for the past 3 months 6. ED nurses schedule for the past 3 months 7. Medical staff by-laws/rules and regulations 8. Current medical staff roster 9. Physician’s on-call staff roster 10. Credentials files 11. Quality assurance plan 12. Quality assurance meeting minutes for past six months 13. List of contracted services 14. ED personnel records 15. ED in-service training records 16. Ambulance trip reports and memoranda of transfer 17. Closed medical records 18. Number of transfers per month for the six preceding months 19. Number of patients seen in the ED for the six preceding months 20. Incident reports/complaint file summaries 21. Other documents as requested | ||||||||
The crucial issue in this duty is the determination of "stabilized." "Stabilized" means that within reasonable medical certainty, "no material deterioration" should occur from or during the transfer.6 Stabilization, like the MSE, is a process and could require several days or even weeks of hospitalization to achieve. In addition, CMS and the courts may interpret the term very broadly. For instance, a patient with significant pain on discharge from the ED, the cause of which has not been determined from the MSE, could be considered unstable. (See Powell v Arlington Hospital in the section on court cases.)
It cannot be emphasized enough that, under EMTALA, no actual injuries need be proven to lose a case. It commonly is likened to a speeding ticket. No one has to be hurt if you were speeding for you to get a ticket. Thus, all transfers are fraught with potential liability. If it can be shown that deterioration might have occurred during the transfer, and the benefits did not outweigh the risks, then the hospital and transferring physician could be found liable.
Before you stop transferring patients altogether, remember that the reason for EMTALA is to prevent patient dumping, not to prevent patients from going to an appropriate facility for their EMC. If you practice in a small, rural hospital, and your one general surgeon is laid up with a broken hand, then, if your patient has a ruptured appendix, you will still need to transfer him to another facility and would be justified in doing so. Just be sure that two hours later, when the next patient with a ruptured appendix comes in (and has great insurance), your surgeon has not made a miraculous recovery.
We usually think of transfers in terms of sending the patient to another facility, but any discharge from the ED (or actually from any part of the hospital) is interpreted as a transfer. Thus, every time you discharge a patient home, this is technically considered a transfer. It is assumed that you concluded from your evaluation that the patient either had no EMC, or if he did, that it had been stabilized. It also is assumed that your documentation reflects this. For example, if you diagnose pneumonia, the administration of antibiotics prior to discharge would be part of the documentation, along with normal vital signs and pulse oximetry, that the patient was stable. Instead of a transfer document, discharge instructions would be given. Thus, technically, patients you send home who have bad outcomes may seek legal recourse against the hospital through the EMTALA statute if they can show that they were discharged in unstable condition.
Finally, even sending the patient to another facility for testing purposes, with the intent to accept the patient when the testing is complete, is considered a transfer. For instance, if your ED’s CT scanner is down, you may transfer the patient to another hospital for a scan if the benefit of the scan outweighs the risk of the transfer, but appropriate paperwork must be done, consent obtained, and notification made. The same is true of some outside psychiatric facilities that transfer their patients to an ED for testing for medical clearance before taking them back.
Once the decision is made to transfer the patient, there are yet more EMTALA requirements. First, the physician must obtain the patient’s consent for the transfer, explaining the reasons, risks, and benefits. This must be documented on a patient transfer form, a legal document that attests to this. If the patient refuses the transfer, this also must be documented. Then, a receiving hospital must be found, contacted by the physician, and accept the transfer. Sometimes this is an easy task, if prior transfer agreements between hospitals are in effect, but at times, it may be difficult to find a hospital to accept the transfer. (See section on reverse dumping.) The medical records and all laboratory tests and radiographs must be copied and sent with the patient. It is permissible to send the patient without all test results if some are still pending, if delaying the transfer to wait for them would jeopardize the patient. As with so much of EMTALA, this is a judgment call on the part of the transferring physician and should be discussed with the accepting physician.
Finally, an appropriate transfer team must be called. This may consist of paramedics from a commercial ambulance company in the case of reasonably stable patients, or might require the services of more specialized transport teams, such as neonatal or pediatric specialists, or even one with a physician on board in the case of those who are exceptionally ill. One also must decide the appropriate mode of transport, such as the need for helicopter transport. Any discrepancy or problem with any of these steps may result in EMTALA liability.
Reverse Dumping
As to the third mandate, EMTALA states that "a participating [i.e., Medicare] hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, and neonatal intensive care units)shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilitiesif the hospital has the capacity to treat the individual."6 This section of the statute has come to be known as the reverse-dumping provision, which prevents specialized hospitals from only accepting in transfer those patients with the ability to pay for the services it offers.
There are two interesting caveats to this. First, the definition of "capacity" is not fixed. Receiving hospitals that claimed they were at capacity were later found in violation of the law because they kept an open bed in the ICU for patients who deteriorated on the floor, a bed that could have been used for the transfer.15 Thus, any hospital must review carefully its policy on "capacity." For an ED to justify being at capacity, it should have gone on some form of official ambulance diversion prior to refusing the transfer. Second, if the sending hospital decides to ignore the refusal and send the patient anyway, they are in violation of EMTALA but, once the patient reaches the other hospital’s doors, the receiving hospital is obligated to care for the patient as it would any patient coming to the hospital and cannot turn the patient away. The hospital is obligated to report the sending hospital to CMS within 72 hours, but must care for the patient within its capabilities. If there is some question as to the legitimacy of the transfer (i.e., the receiving hospital thinks it was "dumped on"), it should be addressed by the receiving hospital’s administration subsequent to delivery of patient care.
The statute also includes sections on the ability of patients to refuse treatment and transfers, both of which should be secured in writing by the hospital from the patient. It also specifically states that the statute does not preempt state laws, "except to the extent that the requirement directly conflicts with a requirement of [EMTALA]."6 It also allows patients who have suffered personal injury due to a violation of the statute to obtain damages in civil court in the state where the hospital is located. Thus, the law respects individual states’ statutes, but if the state’s law requires less of a mandate, the federal law supercedes. It also allows hospitals that have suffered financial losses as a direct result of an EMTALA violation to seek damages in court against the violating hospital. It contains a section on "whistleblower protection" to prevent a participating hospital from taking action against a physician for refusing to carry out an inappropriate transfer or against any hospital employee for reporting violations of the law. Finally, the law establishes a statute of limitations of two years after the date of the violation to bring an action. CMS, in its 1994 regulations, also requires hospital EDs to post a sign, visible from 20 feet away, specifying the rights of individuals with regard to examination and treatment under EMTALA, and to state whether the hospital accepts Medicaid.
The statute, of course, contains specifics on enforcement and penalties. While investigations of violations are the responsibility of CMS, enforcement of penalties and citations falls under the Office of the Inspector General (OIG) of the Department of Health and Human Services. Participating hospitals and physicians who negligently violate the statute are subject to a civil monetary penalty not to exceed $50,000 (or not more than $25,000 for hospitals with fewer than 100 beds) for each violation. Thus, a single patient encounter may result in more than one violation and, therefore, fines can exceed $50,000 per patient. It is important to note that most physician malpractice policies will not cover such administrative penalties, thus the physician might have to pay them out of pocket. The defense costs to the physician might be covered. More importantly, hospitals and physicians are liable to be denied participation in the Medicare program, a rarely instituted but potentially fatal loss for both. Since 1986, CMS has terminated 13 hospitals from Medicare, and all except one termination occurred prior to 1993 (the single termination since then was voluntary).9
Finally, as will be discussed in the section on investigations, once CMS shows up in your ED to investigate a single EMTALA complaint, your entire department and its records are open to them. Any findings in the investigation, even if not related to the index case, can lead to uncovering further violations with resultant penalties.
Thus, the EMTALA statute, although intended as a simple federal guarantee of emergency care, has, over the years, significantly been expanded in its scope, influencing almost every aspect of ED patient care. Because of the ambiguity of much of its language, it is not surprising that a number of court cases have arisen from it, some of them with surprising results.
EMTALA: I’ll See You in Court
The most far-reaching impact of EMTALA is that it creates the right of individuals to sue hospitals in federal, as opposed to state, court for damages they suffered due to violations of the statute. Federal court suits, as opposed to state malpractice cases, are influenced much less by expert testimony, since the only question is whether the specifics of the statute were violated. It should be noted that, although physicians may incur monetary penalties and lose Medicare certification, only hospitals may be sued in federal court for violations of EMTALA.16-17 However, this does not let physicians off the hook. Malpractice attorneys may advise their clients to file an EMTALA claim with CMS prior to pursuing a state malpractice case. If a subsequent CMS investigation reveals that there was a violation, then information uncovered in the CMS investigation is potentially discoverable in a state malpractice case against the physician and/or hospital. Thus, the malpractice lawyers can let CMS do much of the work for them, and although patients themselves receive no monetary awards from EMTALA violations, subsequent malpractice awards may be influenced by findings in an EMTALA investigation.
The U.S. Circuit Courts of Appeal have heard approximately 30 cases on EMTALA law. The only court above the Circuit Court of Appeals is the U.S. Supreme Court, which has heard only one EMTALA case. Many of the reported decisions revolve around legal principles not specific to EMTALA, but a select few make specific interpretations of the statute that require close examination. A review of the most controversial cases is an excellent way to both understand the law and study specific real life situations that can give rise to legal action.
In the case of Burditt v. U.S. Department of Health and Human Services (1991), an obstetrician in Victoria, TX, transferred a woman in active labor with severe hypertension to the county facility 170 miles away.18 Forty miles into the transfer, the woman delivered and was returned to the original facility, where another obstetrician assumed care when the transferring doctor again refused to see her. The obstetrician appealed his fines, using, among others, the unique argument that a statute that forces him to see non-paying patients in his practice is, in essence, the taking of his services without just compensation, a violation of the Constitution’s Fifth Amendment. The 5th Circuit Court of Appeals held that, since participation in Medicare is voluntary, hospitals and physicians had the option of participation based on their perceived benefits and costs, and so could opt out if they felt it was not in their best interests. Thus, no unlawful taking of services was created by the statute.
Also in 1991, the Washington, DC, Circuit Court of Appeals ruled, in Gatewood v. Washington Healthcare, that an MSE does not guarantee a diagnosis, but merely establishes a uniform standard of care.19 This, and a number of other similar Circuit Court rulings, have helped keep EMTALA from becoming a federal malpractice law.16,20-22 The Gatewood case also was consistent with other court rulings that all individuals are covered under EMTALA, not just the indigent, since the words in the statute refer to "any individual" and do not restrict EMTALA only to those without insurance. Mr. Gatewood was a well-insured patient who was diagnosed with musculoskeletal pain in the ED, but died soon thereafter from cardiac problems.
In similar rulings distancing EMTALA from malpractice causes of action, a number of cases have held that physicians must have actual knowledge of the presence of an EMC condition, before there is an obligation to stabilize the patient.17,21-24 The case of Baber v. Hospital Corporation of America in 1992 is illustrative of most of the decisions.16 Brenda Baber was brought to Raleigh General Hospital’s ED for alcohol intoxication, agitation, and possible pregnancy. She had a history of mental health problems and, while in the ED, received Haldol and Thorazine. While pacing the floors, she had a seizure, suffering a scalp laceration. This was closed and the patient was awake and oriented after the seizure. She was transferred to a psychiatric facility under the care of her regular psychiatrist. Soon after arriving there, she had another seizure, suffered a cardiac arrest, and died after transfer back to Raleigh General.
Her family filed suit in federal district court citing EMTALA violations. The district court summarily dismissed the case and the family appealed to the 4th Circuit Court of Appeals. The court, in its decision upholding the lower court’s dismissal, found that "while EMTALA requires a hospital emergency department to apply its standard screening examination uniformly, that does not guarantee that the emergency personnel will correctly diagnose a patient’s conditionThus the plain language of the statute dictates a standard requiring actual knowledge of the emergency medical condition by the hospital staff."14
In the words of one of the other cases: "the hospital’s duty to stabilize the patient does not arise until the hospital first detects an emergency medical condition."17 Some have argued that this line of reasoning protects hospitals that practice uniformly poor care and punishes hospitals that practice excellent care with rare deviations but, in reality, EMTALA never established high standards of care, just uniform ones, insofar as an individual hospital is concerned.
In two related rulings, Collins v. DePaul Hospital and Green v. Touro Infirmary, the courts held that the hospital is not required to identify all of the EMCs a patient has, and that the hospital only is required to stabilize, not cure, the EMC.25,26
The first case involved a man who was admitted to a hospital in a coma and treated for more than a month. After he regained consciousness and began to move, he complained of pain in his right hip and was diagnosed with a hip fracture.
In the second case, a patient was diagnosed with nephrotic syndrome, a condition for which she previously had been treated. She was referred to the county facility for further care and discharged in stable condition. She later died without ever seeking follow-up care.
In case the reading of the above has lulled you into a false sense of complacency about the application of EMTALA as a federal malpractice statute, then the case of Power v. Arlington Hospital (1994) will serve as your wake-up call.27 The facts of the case are as follows: Susan Power came to the ED of Arlington Hospital complaining of pain in the left hip and lower left abdomen and back. She was seen by two physicians, a hip x-ray was done, and she was given a prescription for pain medication and told to return if her pain worsened. The next day she returned in septic shock and eventually had both legs amputated, lost sight in one eye and suffered permanent lung damage. She ultimately was transferred back to her home in England.
Much of the literature that springs from this case revolves around the testimony that indicated that if the physician had just ordered a complete blood count (CBC) on the patient’s initial visit, her occult sepsis would have been uncovered earlier, preventing her severe complications. Thus, it has been taken by the medical community to indicate that the court, for the first time, was applying a malpractice standard in this case. In other words, even though the patient had no fever or signs of infection at the time of the initial exam, retrospective analysis of the case led the court to conclude that a CBC should have been part of the screening examination.
In reality, this was only part of the reason that the defendant hospital was found liable. The rest of the case turned on very basic practice problems: The physician had not recorded the patient’s history or the result of the x-ray on the chart, and the patient was discharged prior to receiving the results of her urinalysis. Thus, the court ruled that the patient had not received the equivalent screening exam that was afforded to other patients.
In all likelihood, the lack of a CBC was not the key fact in this finding, as has been popularly stated. The importance of this case is the fact that all aspects of patient care are included in an EMTALA investigation and court case, including documentation. Rather than create fear, the case should increase your resolve to document each case appropriately and fully.
There have been other, lesser known, EMTALA court decisions that have gone against hospitals. In Repp v. Anadarko Municipal Hospital (1994), the 10th Circuit Court of Appeals ruled that a hospital violated EMTALA when it did not follow its own procedures, specifically those for the MSE.28 The key point here is that, if you have policies and procedures that fall under EMTALA law, you must adhere to them or be held liable. In Correa v. Hospital San Francisco (Puerto Rico) in 1995, the 1st Circuit Court of Appeals ruled that the hospital was liable because it did not provide a medical screening examination in a timely manner for an EMC.29 The patient was a 65-year-old female who presented to the ED, was triaged to the waiting room, and eventually left after two hours, going to her private doctor’s office, where she promptly had a cardiac arrest. There is some dispute as to whether she presented with a complaint of dizziness and nausea or chest pain, but the fact remains that if your triage nurse sends someone with a potential EMC to the waiting room and the patient’s wait for an MSE is unduly long, the hospital may be held liable. This is especially problematic in overcrowded EDs in urban areas.
Finally, the 1st Circuit Court of Appeals, in Lopez-Soto v. Hawayek (1999) ruled that EMTALA applies "housewide" to the hospital and not just to the ED.30 The case involved the birth of a baby in labor and delivery who had meconium aspiration and a pneumothorax and was transferred to another hospital prior to stabilization of these problems, and then died. In the Court’s opinion, "patient dumping is not a practice that is limited to emergency rooms. If a hospital determines that a patient on the ward has developed an emergency medical condition, it may fear that the costs of treatment will outstrip the patient’s resources, and seek to move the patient elsewhere."30
In one unusual case, the 4th Circuit Court of Appeals in 1994 ruled that an ED in Virginia was obligated to treat an anencephalic baby that was brought in for evaluation of apnea (In the matter of Baby "K").31 The baby was living at a nursing home and was not ventilator dependent, but had repeated bouts of apnea that prompted visits to the local ED. The baby’s physicians felt that aggressive treatment was futile, in opposition to the mother, and cited a Virginia statute that allows physicians to refuse to deliver futile care. According to the court, the baby was being brought to the ED, not for anencephaly but for apnea, and so presented with an EMC, invoking EMTALA, and obligating treatment. Thus, the Virginia law was superceded by the federal statute. This is an excellent example of the unintended consequences of some legislation. It is fairly certain that the writers of EMTALA never envisioned such a case.
Finally, there is the single Supreme Court case that has been heard regarding EMTALA. In Roberts v. Galen (1999), the U.S. Supreme Court ruled that no improper motive must be proved to find a hospital in violation of EMTALA.32 The case concerned a woman who was severely injured in a motor vehicle collision and was admitted to Humana Hospital-University of Louisville for two months. She was then transferred to a long-term care facility in Indiana. Shortly thereafter she deteriorated and had to be transferred to a hospital in Indiana, where she remained for months. Although the patient appeared stable for transfer to the nursing facility, she did have some evidence of a urinary tract infection just before her transfer, which, according to the plaintiffs, made her unstable. The 6th Circuit Court of Appeals held that, even though the patient had no health insurance, there was no improper motive for transfer, since the patient already had been treated at Humana for such an extended period of time, and upheld the District Court’s ruling in favor of the defendants. Up to this point the courts had generally found that plaintiffs had to show that an "improper motive," such as one involving the patient’s indigency, race or sex, was involved before the hospital could be found liable for an EMTALA violation, although those cases involved screening requirements.33 The Supreme Court stated that the plain language of the statute indicated that there was no such improper motive requirement. Thus, liability turned only on whether the patient was properly stabilized prior to the transfer. Although the Supreme Court limited its decision to stabilization and transfer requirements, it is likely that future court decisions on EMTALA, in general, will no longer consider the improper motive argument in their decision, thus making it easier for plaintiffs to prove EMTALA violations. As with CMS regulations, court decisions help define the practical ramifications of EMTALA law, and are constantly being issued and often in conflict with prior rulings. Close monitoring of such court cases is essential to maintain compliance with EMTALA.
EMTALA: Managing Managed Care
EMTALA was created at a time when managed care was on the upswing in the United States. Managed care philosophy, with its emphasis on pre-authorization, contracted hospitals, and provider networks, may sometimes be in direct opposition to the EMTALA principle of unencumbered emergency care. Citations have been issued for delaying the MSE to wait for authorization from the managed care plan, or having the care refused and sending the patient away without an MSE. It is permissible to obtain basic demographic information on patients on registration, and this can include insurance information. But no delays should be caused by this, and at no time should the MSE be delayed to wait for a call back for authorization. Remember, the MSE is an ongoing process, so once the initial evaluation is done, if there is a need for further testing, such as CT scans, this should not be delayed by waiting for authorization from the managed care plan.
Finally, CMS has addressed what is known as "dual staffing."34 In this arrangement, the ED is staffed by an emergency physician and a physician associated with the managed care plan, who cares only for the managed care plan patients as they present to the ED. CMS has stated that such arrangements are allowable only if the care given to each group of patients is not different. Thus, protocols for the MSE, quality assurance issues, and transfer protocols must be the same for both tracks. Any substantive difference, such as marked differences in ED wait times between managed care and other patients, can be interpreted as discriminatory and an EMTALA violation, making dual staffing difficult, if not impossible, to do.
Finally, what if the patient asks the staff about payment issues? This is an important but rarely discussed issue. Most patients in extremis couldn’t care less about the cost of saving their lives, but what about the patient who shows up with a sprained ankle and wants to know if her plan covers her care, or, if she has no insurance, what the visit might cost. Although everyone wants to equate medical care to other areas of the marketplace, imagine going to your local department store and putting a bunch of items into your shopping cart with no price tags attached and no idea what your total will be when you check out. This is exactly what ED patients do every day. Then imagine that, thanks to federal law, the stock boy at the store is forbidden to tell you what the items cost until you have finished shopping, for fear that telling you how expensive they are would force you to leave the cart in the aisle and run out of the store.
When a patient asks about financial liability, CMS advises that a "well trained and knowledgeable" ED staff member must: 1) tell the patient that it is the hospital’s responsibility to provide screening for an EMC regardless of his insurance status; 2) encourage the patient to remain for the exam and discuss the financial issues later; and 3) discuss the issues related to a voluntary withdrawal from the ED if the patient requests.34 Generally, these questions should be handled by the charge nurse or physician and not by the registration clerk. The bottom line is that patients should never feel that they were coerced to leave due to financial issues, and that every avenue was left open to them to stay and be treated.
EMTALA Violations: What if CMS Shows Up at Your Door?
When EMTALA was first enacted, the medical community paid little attention to it. More important at the time were the changes in Medicare reimbursement that also were part of the COBRA law of 1986. However, about one year later, a California hospital became the first to be threatened by CMS with termination of its Medicare provider agreement for violations of the statute. Since 1994, on average, CMS has conducted about 400 EMTALA investigations per year. To date, about one-third of all U.S. hospitals have been investigated by CMS for alleged violations of EMTALA law and, of those, one-third have been cited by the OIG.35
As the federal government has become more interested in fraud and abuse in health care, the number of EMTALA violations and settlements has risen significantly. In 1987, there were 13 documented violations; in 1997, there were about 174.9 The monetary penalties also are on the rise. From 1986-1996, the government collected $1.45 million. This is compared to more than $2 million collected from 1997-1998.9 Inappropriate transfers accounted for about half of these penalties, with failure to provide an MSE accounting for another 20%. Another 16% were for not stabilizing patients prior to transfer, and 12% involved delay or refusal to treat based on financial considerations.35 Thus enforcement, a criticism of the laws already on the books in 1986, has not been a problem with EMTALA. What happens when a possible EMTALA violation is reported and what your hospital and ED can expect is outlined in this section.
First of all, how is an investigation started? Quite simply, any citizen, physician, or hospital may make a complaint about a possible EMTALA violation. As mentioned previously, the complainant may be a malpractice attorney who sees a potential EMTALA violation and advises his or her client to file a complaint on that issue prior to proceeding with the state malpractice claim. All complaints are forwarded to the appropriate CMS Regional Office (RO) and the RO then refers the complaint back to the state’s CMS survey agency (SA) if it feels an investigation is warranted. The agency then has five working days to initiate an investigation and usually tries to conclude it within 15 days. Thus, you have little time to prepare. The accused hospital and physician do not get any advanced announcement that an investigation is coming until CMS representatives show up at the door. Thus, the man with the sprained ankle who waited an excessive amount of time in the waiting room and the parents of the child who you diagnosed with a cold (but who later turned out to have pneumonia) may file claims with CMS, alleging that they were denied their rights under EMTALA, and an investigation may ensue.
There also is little in the way of due process for the accused hospital and/or physician. Complainants do not have to give their names and, if they do, are guaranteed anonymity during the investigation. In addition, the burden is on the hospital to either prove it did not violate the statute or, if it did, to show that it has established a plan of correction to prevent future violations.
The investigatory team is first assembled, consisting of officials from the state survey agency (SA) and possibly other federal officials such as FBI agents or federal marshals, as well as physicians and nurses experienced in both EMTALA law and peer review procedures, usually specific to the specialty being investigated.
The first order of business is the entrance conference, usually held with the CEO/president of the hospital. At that time the hospital will be asked for a "few" items for the team.36 (See Table 4.) Look at this list carefully. This is not just material that applies to the index case, but is all encompassing, including ED meeting minutes, personnel records, incident reports, and a lot of data that appears at first glance not to apply to the case. This is more understandable when you consider the emphasis of the investigators. They are really not as concerned with whether a violation took place in the index case as they are with determining if the hospital is in compliance, in general, with the law. Thus, the information they gather covers just about any issue that could indicate non-compliance. Make sure you have your paperwork in order at all times.
The investigators will then request that 20-50 patient charts be pulled. They (not you) will select these charts based on the index case and will tend to pull high-risk patients, such as those transferred out of the facility, return cases, patients leaving against medical advice, and refusal of treatment cases. They will look for patterns of non-compliance and discrimination, dealing with diagnosis (e.g. AIDS), race, color, insurance type, handicap, or nationality. Interviews with appropriate staff also may be conducted. After the fact-finding is over, there is an exit interview with the principals from the entrance interview.
At no time during this interview will you be told if a violation occurred. This is because the SA still must turn over everything to the RO for final peer review and disposition, usually in 10-15 working days from the conclusion of the investigation.
After the peer review process, the RO will issue its findings. First, it may find that the complaint was not substantiated and drop the case outright. Again, the RO’s main aim is not to find out if there was a violation in the index case, but to find areas of general non-compliance with the law. So, you may win the battle of the index case and lose the war for compliance if they find other evidence during the investigation.
Second, the RO may find that the hospital was "in compliance, but previously out of compliance." That is, the hospital on its own identified and corrected the problem.
Third, the RO may recommend termination of hospital’s Medicare provider agreement in a 90-day track. Usually this means that significant non-compliance issues were identified, but that they do not pose an immediate threat to patient health and safety. This is not a fatal edict and may be remedied if the hospital takes quick and appropriate actions to correct the problems.
Finally, the hospital may be served notice that it will be terminated from Medicare in 23 days if the deficiencies are deemed an immediate threat to patient safety and health. This usually means that the hospital failed to provide stabilizing treatment, improperly transferred patients, denied an MSE in some form or that an on-call physician failed to see the patient when called. The hospital CEO will receive a letter from CMS indicating the date of termination. The hospital is, of course, encouraged to provide evidence (in 23 calendar days, not working days) that the findings of the RO are in error. If the evidence is compelling, the RO will suspend the termination date and hold another survey. If the evidence the hospital provides does not meet the RO approval, the hospital is terminated. If the hospital is terminated from Medicare, it also is required to pay for an announcement in the local newspaper notifying the community of the penalties.
Of course, there is legal recourse the hospital can take: It may file an appeal with the federal district court, but while the appeal process is going on, the hospital’s termination from Medicare continues. Thus, it is in the hospital’s best interest to satisfy the requirements of the RO as soon as possible.
In reality, the RO does not want to shut down hospitals. It only wants to bring them into compliance with the law and, therefore, they are inclined to work with the hospitals.
The bottom line is that, just as you would prefer not to have the Internal Revenue Service audit your taxes, you would prefer not to have CMS investigate your hospital.
Conclusion
As can be seen, EMTALA is a law that, despite its initial intent as a non-discrimination bill, has far-reaching implications for all aspects of emergency care of patients. Although unambiguous in its intent, it is inherently ambiguous in its interpretations and has as many unforeseen ramifications as there are limitless presentations of disease in the ED.
One important consequence is monetary. According to the American Hospital Association, in 1996 about 16% of ED patients were uninsured.37 The ED is the portal of entry for up to three out of four uninsured patients admitted to the nation’s hospitals.38 Traditionally, uncompensated care was recouped by charging more for services for the insured. Through such cost shifting, hospitals were able to provide care for the indigent and stay financially solvent. However, prospective payment systems, DRGs, and HMOs have hindered hospitals’ abilities to continue this practice. The uncompensated costs to emergency physicians for services provided under EMTALA was estimated to be $426 million in 1996, and the costs to hospitals for uncompensated inpatient care is a staggering $10 billion.38
In addition, the number of uninsured in the country continues to rise, with many more being the "working poor." From 1988 to 1996, the number of working people with employer-sponsored health care coverage dropped from 72% to 58%.39 These people go to the ED for much of their acute care. This helps to explain the 25% increase in ED visits from 1988-1996. In 1998, 3.4% of children under the age of 18 were reported to use the ED as their usual source of health care.40 Add to this the fact that the number of EDs in this country have decreased over the same period, and financial strains on the remaining departments and hospitals to provide indigent care and stay financially afloat become critical. Studies have shown that the bulk of this financial strain falls on urban and rural hospitals, the former becoming overcrowded and the latter unable to financially compete and so are threatened with closure.37
Recently, CMS has begun to consider such uncompensated care in its reimbursement formulas for emergency physicians. However, until there is some guarantee of insurance coverage for all Americans our system of EDs will continue to be the "safety net" that protects people from catastrophic medical problems, and EMTALA will continue to be the government’s guarantee that the system will work in the best interest of those people.
A well-versed knowledge of the law is a requirement for anyone who treats hospital patients in an emergency situation. Despite the fear that EMTALA can put in the hearts of health care workers, one need not be afraid to treat, discharge, or transfer patients if one places the health and welfare of the patient above all other considerations and acts accordingly. Those hospitals and physicians who "do the right thing" and practice good medicine that puts the patient’s interests first will, generally, not have to worry about being on the wrong side of the law. Certainly, anyone may file a claim, but with good intent (and a lot of good documentation) you should prevail if there was no violation.
References
1. Fields W. Policy implications for emergency medicine. In: Fields, et al, eds. Defending America’s Safety Net. Dallas: American College of Emergency Physicians: 1999; 43-52.
2. Ansell DA, Schiff RL. Patient dumping: Status, implications, and policy recommendations. JAMA 1987; 257:1500-1502.
3. Schiff RL, Ansell DA, Schlosser JE, et al. Transfers to a public hospital. A prospective study of 467 patients. N Engl J Med 1986;314:552-557.
4. Accreditation Manual for Hospitals. Chicago, IL: Joint Commission on Accreditation of Hospitals; 1984.
5. American College of Emergency Physicians. Emergency care guidelines (position paper). Ann Emerg Med 1982;111:222-226.
6. 42 United States Code of Federal Regulations, 1395dd (or Section 1867 of the Social Security Act).
7. 42 United States Code of Federal Regulations, 489.
8. Introduction to patient transfer regulations. In: Frew SA. Patient Transfers: How to Comply with the Law. Dallas: American College of Emergency Physicians; 1995:1-2.
9. The Emergency Medical Treatment and Labor Act. The enforcement process. Department of Health and Human Services. Office of Inspector General. January, 2001.
10. Arrington v Wong, 9th Cir. No. 98-17135 (2001).
11. Hubler JR. EMTALA-New developments in the regulatory guidelines and an update of recent court opinions. Foresight 2000:48:4
12. ACEP Clinical Policy on Screening Exam. American College of Emergency Physicians: Appropriate interhospital patient transfers.(policy statement). Ann Emerg Med 1993;22:766.
13. Groth SJ, Begley D, Calabro JJ, et al. Emergency department back-up panels: A critical component of the safety net problem. In: Fields, et al, eds. Defending America’s Safety Net. Dallas, TX: American College of Emergency Physicians; 1999: 25-28.
14. Glauser J. Screening examinations, stabilization, and the law. Emergency Medicine News 2000:22.
15. Introduction to patient transfer regulations. In: Frew SA. Patient transfers: How to comply with the law. Dallas, TX: American College of Emergency Physicians; 1995:78.
16. Baber v. Hospital Corporation of America, 977 F2d 872 (4th Circuit 1992).
17. Eberhardt v The City of Los Angeles, 62 F3d 1253 (9th Circuit 1995).
18. Burditt v US Department of Health and Human Services, 934 F2d 1362 (5th Circuit 1991).
19. Gatewood v Washington Healthcare Corporation, 933 F2d 1037 (DC Circuit 1991).
20. Collins v DePaul Hospital, 963 F2d 303 (10th Circuit 1992).
21. Brooks v Maryland General Hospital, 996 F2d 708 (4th Circuit 1993).
22. Williams v Birkeness, 34 F3d 695 (8th Circuit 1994).
23. Urban v King, 43 F3d 523 (10th Circuit 1994).
24. Holcomb v Monahan, 30 F3d 116 (11th Circuit 1994).
25. Collins v DePaul Hospital, 963 F2d 303 (10th Circuit 1992).
26. Green v Touro Infirmary, 992 F2d537 (5th Circuit 1993).
27. Power v Arlington Hospital, 42 F2d, 3d 854, (4th Circuit 1994).
28. Repp v Anadarko Municipal Hospital, 43 F3d 519 (10th Circuit 1994).
29. Correa v Hospital San Fransisco, 69 F3d 1184 (1st Circuit 1995).
30. Lopez v Hawayek, 98 F3d 1594 (1st Circuit 1999).
31. In the Matter of Baby "K", 16 F3d 590 (4th Circuit 1994).
32. Roberts v Galen, 119 S. Ct. 685 (1999).
33. Cleland v Bronson Healthcare Group, 917 F2d 266 (6th Circuit 1990).
34. OIG/CMS Special advisory bulletin on the patient anti-dumping statute. Federal Register 64:61,353-61,357.
35. Levine RJ, Guisto JA, et al. Analysis of federally imposed penalties for violations for the Consolidated Omnibus Reconcilliation Act. Ann Emerg Med 1996;28:45-50.
36. State Operations Manual Provider Certification. Attachment 1. Health Care Financing Administration. May 1998:V5-V6.
37. Fields W. Defining America’s safety net. In: Fields, et al, eds. Defending America’s Safety Net. Dallas, TX: American College of Emergency Physicians; 1999:5-14.
38. Fields W. Defending America’s Safety Net. ACEP News 2000 19:1-6.
39. ACEP News. American College of Emergency Physicians. 2000;19:3.
40. Hodge D. Managed care and the pediatric emergency department. Pediat Clin N Amer 1999, 46:1329-1340.
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