Courts typically do not allow the Centers for Medicare & Medicaid Services (CMS)’ interpretation of EMTALA violations as evidence in medical malpractice litigation.
“It may be discoverable, but it is typically not admissible under the federal rules of evidence,” says Robert A. Bitterman, MD, JD, FACEP, an emergency physician (EP) and attorney who advises hospitals facing EMTALA investigations. He adds that most EMTALA violations occur because hospitals simply aren’t acting in ways that are in the best interest of their patients.
A non-attorney in a regional CMS office deciding that the hospital violated the civil statute is unreliable, legally speaking, Bitterman says, because there was no due process involved in that determination.
“It is not allowed, and that is as it should be,” he says. “Also, a significant portion of the time, CMS is just dead wrong.”
Bitterman says the following are examples of misinterpretations of EMTALA:
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EDs are no longer allowed to ask for money, even if this does not delay the stabilization process in any way.
In December 2013, CMS issued a memo involving EMTALA and the Affordable Care Act (ACA).
“[CMS] changed what they deemed to be appropriate behavior in the screening process as it relates to asking for money,” Bitterman explains.
Previously, EDs could go through normal registration processes, such as asking patients for co-pays.
“It was OK to ask for money, as long as hospitals did so in a non-economically coercive way,” Bitterman says, noting that it was never acceptable for EDs to tell patients to pay to be seen, for instance. “But because CMS ‘reinterpreted’ EMTALA in light of the ACA, it’s now an abuse of patients’ rights if you actually ask them to pay for services.”
This means EDs can’t ask for any money at all until the screening exam is complete and the patient is stable (or the patient is admitted).
“And that’s not what the statute says at all,” Bitterman notes. “It says you can’t delay access to the screening and stabilization on account of the patient’s insurance status.”
The change stems from the increase in high-deductible plans offered on healthcare exchanges.
“There are a lot more financial questions happening,” Bitterman adds. “CMS didn’t want money in any way to be in the middle between patients and providers.”
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CMS has taken the position that any medical misadventure, such as an EP misdiagnosing a patient, is a violation of the screening component of EMTALA.
“This turns an ordinary negligence issue into a regulatory violation of federal law,” Bitterman says.
Courts take a different position — that issues of medical negligence belong in state courts under state malpractice law.
“Federal and state courts, which interpret federal law, say it’s got to be something outside your normal screening procedures — ‘disparate screening’ — other than questioning the judgment of the examining physician in the hospital,” Bitterman says.
CMS says the court’s interpretation of the law does not apply to it because CMS may interpret the law differently from a regulatory perspective.
“This puts physicians in a bind,” Bitterman notes. “Ordinary malpractice has been turned into a regulatory nightmare because of the way CMS interprets and enforces the statute.”
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The 10 regional offices of CMS are allowed to interpret EMTALA in different ways.
“CMS will not step in and tell each office how to interpret the law. So you can have different enforcement in different areas of the country,” Bitterman explains.
EMTALA requirements end when the patient is stabilized, according to the statute. However, some CMS regional offices believe that EMTALA governs any transfer, regardless of whether the patient is stable or unstable.
“They also believe that if the patient is stable, the hospital doesn’t have to accept the transfer,” Bitterman adds. Others say that the hospitals have to accept even a stable patient, if the patient has an emergency medical condition that the accepting hospital can treat.
“Hospitals have no redress to go to CMS if they believe one of the regional offices is misinterpreting the law,” Bitterman says. “In other words, there is no due process.”
The only thing the hospital can do is comply with the CMS regional office’s interpretation of the law.
“If the hospital wants to challenge that interpretation, in the meantime, they’d be terminated from Medicare,” Bitterman warns. “So rather than say, ‘You’re wrong — back off,’ hospitals have to go through the process of coming under compliance.”
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CMS induces hindsight bias by giving peer reviewers after-the-fact information.
To determine if an EP acted appropriately, peer reviewers should receive only the information that the EP had at the time, Bitterman argues. If the EP’s judgment about a child with a fever is questionable, for instance, the reviewer should explore the medical records from the ED visit — but not the records of the patient’s subsequent visit to another ED, including the fact that the patient experienced an adverse outcome.
“This is something that is very well-established in statistical analysis and any kind of peer review mechanism,” Bitterman notes.
CMS, however, gives the peer review physician information about the patient’s subsequent treatment and outcome.
“That induces hindsight bias on behalf of CMS, so the process is rigged,” Bitterman concludes. “All hospitals are asking for here, is, ‘If you are going to question our judgement, do so in the correct manner.’”
