Following the Rules
What Boards Need to Know About Regulatory Issues
EMTALA
In the 1980s, it was not uncommon for emergency departments to avoid treating patients who could not pay by transferring or “dumping” them on public hospitals without patients’ consent and often when they were in a critical or unstable condition. Of 467 patients who had been transferred from Chicago-area EDs to Cook County Hospital in 1986, 87 percent lacked adequate insurance; 94 percent had not consented to the transfer; 22 percent needed intensive care within 24 hours of arrival; and the conditions of 24 percent had not been stabilized.
Also during that time, women in labor were driven as many as 50 or 100 miles to a public hospital because they were indigent or underinsured, recalls Robert Bitterman, M.D., a physician and attorney who wrote Providing Emergency Care under Federal Law: EMTALA in 2001 (updated in 2004).
Although organizations such as the American College of Emergency Physicians (ACEP) had safeguards for ensuring access to care for indigent patients, their guidelines had no regulatory teeth. So it did not surprise care providers, when, in 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA)—commonly called by those in the health care field as the “Patient Anti-Dumping Law.”
The concept underlying EMTALA is simple enough: Hospitals must provide medical screening to any patient who visits their ED, determine whether the patient needs emergency care and stabilize the patient. Hospitals may only transfer the patient to another facility if the benefits outweigh the risks.
Over the past two decades, however, hundreds of court decisions and countless pages of regulations, interpretive guidelines, and commentaries have been issued on how to fulfill these obligations. And a complex process of enforcement has evolved, involving the regional offices of the Centers for Medicare & Medicaid Services (CMS), state survey agencies, quality improvement organizations, and the Office of the Inspector General (OIG).
Consequently, there are two different standards of liability: one imposed by the federal government and one by civil federal courts, and often variations in the way the regional offices enforce the law in their districts. Sue Dill Calloway, a nurse, attorney and director of risk management for the Ohio Insurance Company (OHIC), “teasingly refers to EMTALA as the ‘Lawyer Employment Act,’ because it almost takes a lawyer to figure it out.”
For example, Dill Calloway cites a case in which a hospital refused to accept a patient because it was on diversion. Even though the patient had three forms of insurance and the hospital didn’t turn her away because she lacked proof of payment, this was considered to be an EMTALA violation. “We’ve seen that as EMTALA has evolved over time, it’s not the same creature we started out with,” she says.
Other incidents have been labeled EMTALA violations even though the actions of those hospitals might appear to be reasonable. When surgery for appendicitis was delayed to await the results of HIV testing, a federal court nevertheless allowed a claim under EMTALA because that hospital’s standard was immediate surgery for appendicitis.
It’s no wonder health care professionals are perplexed about EMTALA, if they know about it at all. Bitterman estimates that 30 percent to 40 percent of medical staff members haven’t heard about EMTALA or know how it may affect their practice. A study by the Government Accountability Office (GAO) in 2001 found that 60 percent of on-call physicians found the law to be confusing.
Health care professionals also are not prepared for the process of complying with an investigation, which can be onerous. When a CMS regional office decides to investigate an EMTALA complaint, a team of surveyors, usually from the state health department, arrives at a hospital unannounced and with the full power and authority to look at any documents—even those that are not directly related to the incident. Surveyors often review a sample of six months of medical records in the ED and interview physicians, nurses, ambulance drivers, etc., says Alan J. Steinberg, partner in the law firm of Horty, Springer & Mattern, Pittsburgh.
If surveyors find any violation of the law, the hospital has 23 to 90 days to fix it or face a severe penalty: The harshest is immediate termination from the Medicare program. A hospital also may be fined up to $50,000 for each violation, and there can be more than one violation in a complaint. On top of that, complying with an investigation can cost the hospital anywhere between $100,000 and $200,000, says Bitterman.
CMS is actively involved in investigating EMTALA complaints—about 400 since 1995. Of those, state surveyors have cited around 200 for violations of the law. Although CMS has terminated only four hospitals from the Medicare program because of EMTALA violations (two of which were eventually reinstated), OIG has imposed fines totaling more than $5.6 million on 194 hospitals and 19 physicians, according to the GAO study.
Because of the law’s complexities, board members cannot be expected to understand EMTALA chapter and verse. However, experts recommend that boards be up to speed on three principal issues:.
1. Compliance. “Board members may not have to get into the details of policies and procedures, but they need to know that their administrator and medical staff meet the obligations under the law,” says David Siegel, M.D., J.D., principal partner of Siegel Consulting Inc., Tampa, Fla., specializing in quality and pay-for-performance issues, and chair of the EMTALA Technical Advisory Group, (TAG), which includes hospital and patient representatives, state surveyors and EMTALA investigators, who recommend changes in the law to the Secretary of Health & Human Services.
Trustees may ask for copies of hospital policies and procedures and medical staff bylaws to be sure they reflect the law’s requirements. Board members should ask the hospital risk manager if any concerns or violations related to EMTALA have arisen and if they have been addressed in a timely manner. Trustees also may want to know that the hospital regularly conducts audits to be sure EMTALA practices are being followed, that a designated person is in charge of compliance—such as a compliance officer or the manager or director of the emergency department—and that physicians and employees receive regular education and training on EMTALA, says Dill Calloway.
2. On-Call Policies. Under EMTALA, the hospital is obligated to develop an on-call roster of physicians who will conduct emergency medical screenings and stabilize patients with emergency conditions. However, most hospitals are finding it difficult to get physicians to assume on-call responsibilities, especially those in the surgical specialties and obstetrics and gynecology.
Trustees therefore need to be aware of their hospital’s on-call system as well as how the administration applies and monitors it. “How the system functions and what roles the ... physicians play is something the board has to be on top of, not only because of liability under federal law, regulatory action, and civil law, but because it has a great deal to do with the quality of care provided in the community,” says Bitterman.
3. Transfers. Trustees should realize that, because of the transfer provisions of EMTALA, the hospital might receive emergency cases from hospitals hundreds of miles away. “Hospitals that happen to be well-stocked with on-call physicians and have a good cadre of clinical services may find they are magnets for transfers from inner-city hospitals that don’t have these services, and this can be a financial drain. So trustees need to know how their hospitals handle transfers in as well as out, [of their facility]” advises Bitterman.
The future of the law depends on whether Congress addresses tangential monetary and liability concerns. EMTALA is an unfunded mandate. In its final recommendations, which will be released at the end of this year, TAG will recommend that the federal government find ways to at least partially fund hospital compliance and provide some degree of liability protection. “The law says you have to do this, but we’re not even paying you to do it. So some areas of liability protection may be improved to encourage the hospital and the physicians to participate in the system,” says Siegel.—Karen Sandrick
In Brief
EMTALA | The Emergency Medical Treatment and Active Labor Act was passed by Congress in 1986 to prevent hospitals from “dumping” patients who cannot pay for services by refusing treatment or by transferring or discharging these patients.
The Board’s Role and Reason for Interest | In addition to ensuring that their hospital adheres to EMTALA principles, trustees should be aware of the way in which their hospital maintains an on-call roster of physicians to medically screen and stabilize emergency patients and women in acute labor.
Compliance Issues | Civil court decisions plus federal regulations, interpretive guidelines, and commentary have created two different standards of liability. A complex process of enforcement involving regional offices of the Centers for Medicare & Medicaid Services (CMS) has often produced variations in the application and interpretation of the law.
Penalties | A hospital may be terminated from participation in the Medicare program if a violation of the law is not corrected within 90 days. A hospital may be fined up to $50,000 for each violation, and there may be more than one violation in a complaint.
Oversight | CMS enforces the law through its regional offices.
Key Players | CMS and its regional offices, state survey agencies, quality improvement organizations, and the Office of the Inspector General.
Future | An advisory group on EMTALA implementation is advising the federal government to provide at least partial funding for hospital compliance and some degree of liability protection.
Resources
AHA Resources | AHA members can access the association’s EMTALA advocacy alerts at www.aha.org. Additional information is available through the AHA Resource Center at (312) 422-2050.
Interpretive Guidelines | The Guidelines have two parts. Part One describes the procedures CMS surveyors follow to investigate complaints under EMTALA. Part Two outlines responsibilities of on-call physicians and receiving hospitals. The Guidelines can be accessed at www.cms.hhs.gov/manuals/downloads/som107_Appendicestoc.pdf.
Regulations | Finalized Nov. 10, 2003, the regulations can be found at http://frwebgate.access.gpo.gov/cgibin/getpage.cgi?position=all&page=53221&dbname=2003_register.
Questions | Contact CMS’ Donna Smith by calling her at (410) 786-0095 or e-mailing donna.smith@cms.hhs.gov.
Glossary
EMTALA | Passed by Congress as part of COBRA in 1986, to prevent “dumping” patients who cannot pay for services by refusing treatment, transferring them to other hospitals (usually public) or discharging them.
Emergency Medical Condition | A medical problem that may jeopardize a patient’s health or result in a patient’s physical or mental impairment or dysfunction if it is not treated immediately.
Medical Screening Exam | A physical and mental health evaluation to determine if a patient has an emergency medical condition or if a pregnant woman is in active labor. If an emergency medical condition does not exist, EMTALA does not apply.
Stabilization | Involves treatment necessary to ensure a patient’s emergency medical condition is contained within the staff’s and facility’s capability.
Technical Advisory Group (TAG) | Created by the Medicare Modernization Act of 2003 to advise the Secretary of Health & Human Services on issues related to EMTALA’s implementation.
Transfer | Considered appropriate under EMTALA if a hospital has provided medical care to minimize a patient’s or fetus’ risk, the receiving facility has space and qualified personnel to treat the patient, and the facility has accepted the transfer.
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This article 1st appeared in the May 2007 issue of Trustee Magazine.
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