EMTALA
A number of people have asked me to comment on EMTALA as an emergency medicine physician. It occurred to me that few people know what this law is, how it affects people (both patients and physicians), or why it is controversial. So here’s some information about the laws under which hospital emergency departments must operate. Hopefully this will also shed some light on why physicians in general are suspicious when politicians get involved with healthcare.
The Emergency Medical Treatment and Labor Act was enacted in 1986, and continues to be controversial. That controversy can be seen in the statute’s characterizations by its proponents as the “anti patient dumping law” and by its detractors as “the law that grants free healthcare in the United States.” I’ll start by defining what EMTALA is, then get to how it affects patients, providers and healthcare as a whole.
I should state that a hospital’s first goal must be to make enough money to stay open. You can’t operate in the red for very long. Money is always part of the equation, even in non profit hospitals. If a hospital does not get paid consistently, it will not be able to keep it’s doors open. By the same token if a physician only works for free and collects nothing, then he can’t keep his office open, can’t pay his loans, his malpractice, etc. In short, if everybody were expected to work for free, then you’d have no health care at all.
Before EMTALA doctors and hospitals had no obligation to treat anyone. When patients who had no insurance and no money showed up at a hospital, even if they were very sick and unstable, the hospital could and did call an ambulance to take the patient to a county or charity hospital, who would treat the patient, often for ‘free.’ University hospitals became the dumping ground for poor patients who were unable to pay for their care. Consequently these charity and university hospitals were losing more and more money giving away free care since they saw a disproportionate number of non paying patients.
Insurance also played a role. If you presented to a hospital who didn’t accept your particular insurance, then you would be transferred to a place that did.
Even if a hospital was willing to treat a non-paying patient there was no guarantee that a doctor would be willing to work for free particularly if specialty care was needed (think plastic surgery for a facial wound, or neurosurgery for head trauma). On the other hand even if a physician was willing to see a non paying patient the hospital frequently denied the use of its facilities (such as an OR suite). This practice resulted in many catastrophic outcomes for patients including some disasters when hospitals transferred women in active labor. Sounds pretty horrible, right? Actually no one disagrees that such behavior was morally wrong and needed to be addressed.
Eventually there was a backlash against the hospitals and physicians. As a result, lawmakers passed EMTALA as a part of the 1986 Consolidated Omnibus Budget Reconciliation Act (COBRA). EMTALA stopped the most egregious practices in regard to transfer of patients due to financial issues but it has many drawbacks as well.
Specifically EMTALA mandates that “Any hospital with an Emergency Department that participates in the Medicare and Medicaid programs will provide, without regard to ability to pay, a medical screening exam and any stabilizing care within the capacity and capability of the institution to any person who presents to a participating Emergency Department.” Basically, if you take government money (and every ED in the nation does), then you are bound by EMTALA.
As usual, the devil is in the details, and is not as straight forward as it sounds. The first problem is that lawmakers intentionally left many definitions vague, leaving a lot of ambiguity on how to fulfill this mandate. The government views this ambiguity as useful, so the law can evolve over time and adapt to the changing face of healthcare. On the provider end of things (i.e. the hospital), the lack of definition is extremely frustrating as expectations and enforcement come case by case. One day you can be in compliance, but the next day, usually after a trial of another hospital, you find that you are no longer in compliance because the rules have changed.
What is considered an emergency department? “A specially equipped and staffed area used for a significant amount of time for the evaluation and treatment of outpatients presenting with medical emergencies.” So urgent care centers and primary care offices do not count and are not held to this law and have no obligation to treat you.
How about “without ability to pay”? Does that mean free care? No, it doesn’t. It means that I can’t make a treatment decision based on your ability to pay. Many hospitals are afraid to even ask for your insurance information for fear of giving the perception of violating this part of the mandate. But you can be billed for whatever care you receive. If you don’t have insurance, you can count on being billed and held accountable for whatever costs you incur during your stay. These bills are often what force people into bankruptcy, however many people without jobs or credit simply disappear and are never heard from again. They have effectively received ‘free’ care. Either way, the hospital eats much of the cost for these types of patients.
Perhaps the most problematic part of the mandate is the definition of ‘medical screening exam.’ A medical screening exam is assumed to be an exam by an appropriate provider to determine if an emergent medical condition exists. So who is an appropriate provider? A triage nurse? A doctor? A midlevel? The admitting clerk? No one knows for sure and different institutions interpret this part in different ways. Moreover, how much is included in the exam? No one is certain as to the extend, but it includes any tests such as CT scans or EKGs which would aid in determination of a medical emergency. But when do you stop? Remember that life itself is a terminal condition! If you die two days later can you argue that an emergency was missed and you were denied care?
Some hospitals, to cut down on excessive volume and wait times, will demand upfront payment from the patient after an initial screening exam determines that there is no medical emergency. This practice is called ‘deferral of care’ and is quite controversial (my hospital does not do this).
You can’t just diagnose the problem then send the patient elsewhere. You must also provide ‘stabilizing care,’ i.e. treatment of that condition. If you need an appendectomy, you get it. If you need a quadruple bypass, you get it. The hospital is required to provide it or get you to some place that can provide that procedure. Again, this is not free care: you will be billed.
The term ‘presenting to the emergency department’ is also a complicated and undefined problem. As it currently stands after much litigation and debate, you as a patient are considered to be presenting to the ED if you are within 400 yards of the hospital. Yup. If you’re shot near a hospital, that hospital has an obligation to treat you, even if it doesn’t know you’re there. This part of EMTALA has been a problem recently when patients experience long wait times in a hospital waiting room. It can be construed as an EMTALA violation if a patient has more subtle disease and waits too long for care in your waiting room. Or if they get tired of waiting and leave on their own. Once you sign in at the waiting room, you are generally not allowed to leave without signing a liability waiver.
Please note that malpractice liability and EMTALA are two separate entities, but feed into one another. You can meet your EMTALA obligation to a patient but still be considered negligent and you can also be medically negligent but meet your EMTALA obligation. The difference is that the government bean counters enforce EMTALA and leave very little room for argument.
There’s also language that provides for necessary transfers. For example I work at a dedicated children’s hospital. Sick kids from the area routinely (and appropriately) transfer to my ED because we are specialists in pediatric care. As a higher level facility, I cannot refuse such a transfer.
EMTALA also has teeth. There are hefty fines for any hospital or physician found to be in violation of its tenets. If I refuse the transfer of a sick child, I can be fined up to $50,000. If a subspecialist such as a neurosurgeon refuses to see a patient on an emergent basis, s/he can be fined. Hospitals diverting ambulances due to having a full bed status can be fined.
Next up: Impacts and funding of EMTALA
Posted via LiveJournal.app.