New EMTALA may damage already weak safety net
ED physicians concerned over relaxed on-call rule
Hospitals struggling to survive while absorbing an increasing amount of uncompensated health care are welcoming recent changes to federal patient-dumping legislation that clarify and limit the instances in which hospitals are required to provide care regardless of a patient’s ability to pay.
But a portion of the new regulations may hurt access to specialty care for the nation’s neediest patients, some experts say.
"EMTALA [Emergency Medical Treatment and Labor Act] is an incredibly important safeguard for all Americans," says Wesley Fields, MD, FACEP, president of the California chapter of the American College of Emergency Physicians (ACEP) and chair of the national organization’s subcommittee on EMTALA regulations. "I think it is pretty interesting that the first form of health care to be protected under federal law is emergency care. Done well, it ensures that working people without insurance are going to be able to not just get medical screening and stabilization, but if they need hospitalization, they will be admitted to the hospital. But I think there is a big difference between EMTALA and the way health care safety nets should work within a market and within a region."
Passed by Congress in 1986, EMTALA required all hospitals that participate in Medicaid to provide medical screening examinations (MSEs) and stabilization to anyone presenting to the hospital and requesting assistance, regardless of that person’s ability to pay for services.
The law was a response to instances of larger, affluent facilities engaging in patient dumping, turning away or transferring indigent patients with life-threatening medical emergencies and sending them to the nearest public hospital.
Under EMTALA, hospitals could be fined, sued, and lose their Medicare participation for:
- failing to provide a medical screening examination sufficient to rule out the presence of a medical emergency;
- failing to provide appropriate treatment to stabilize that patient prior to transferring the person to another site of care;
- asking for financial or payment information prior to performing an MSE;
- failing to maintain an appropriate roster of specialists on-call to treat emergencies.
Some later interpretations of the EMTALA protections further held that hospitals could be liable for failure to provide MSEs when patients presented to off-site urgent care centers owned by the hospital, or were transported to another facility in a hospital-owned ambulance.
Changes announced by the Centers for Medicare & Medicaid Services (CMS) in September and due to take effect Nov. 10 will limit hospitals’ responsibility under the law. The new changes include:
- limiting the definition of hospital property where patients are entitled to emergency care. An off-campus site will be required to comply with EMTALA only if it is specifically licensed as an emergency department (ED), if the site is portrayed to the public as a place that provides emergency care, or if emergency services constituted at least one-third of all outpatient visits in the previous year;
- clarifying that EMTALA does not apply to doctors’ offices, rural health clinics, nursing homes and other "nonhospital" entities;
- stipulating that EMTALA no longer applies to any person who is admitted as an inpatient;
- allowing hospitals more choice in arranging the federally mandated list of doctors who are on call to treat emergency room patients by allowing them to exempt senior medical staff members;
- removing requirements that hospitals have doctors on call 24 hours a day, seven days a week;
- allowing doctors on call to have simultaneous on-call duties at two or more hospitals and to schedule elective surgeries or other medical procedures while on call.
"Many of these changes are constructive," notes Fields. "The clarification that defines hospitals in a way that eliminates urgent care centers, and the point that EMTALA does not apply to a patient who is admitted to the hospital for another reason and then becomes unstable as a result of something that was not a result of the visit to the [ED], are both constructive measures."
On-call issue is tricky
But the relaxation of the requirements for maintaining a comprehensive panel of backup specialists has the potential to be devastating in some areas, Fields says.
The number of specialists willing to take call has reached such low proportions that many hospitals have to provide subsidies to reimburse specialists for the time they agree to be available.
A recent report from the General Accounting Office confirms that reductions in the number of specialists available to perform emergency surgeries and deliver newborns in EDs significantly has affected patient care in five states.
"Hospitals are increasingly being told by their own medical staff that EMTALA compliance is really a hospital problem rather than a medical staff problem," Fields continues. "This is becoming a moral and ethical dilemma on the part of hospitals because, on the one hand, it is unfair to mandate panel participation for individual specialists; but the alternative that is increasingly seen in the marketplace is that hospitals will only get peak compliance or support from medical staff to the extent that they own the problem themselves in the form of providing different kinds of financial support to the specialists."
This hurts hospitals that serve low-income populations the most, he adds. Hospitals struggling to stay in the black may see cutting back on specialist backup for the ED as a good alternative.
"It becomes a matter of how much backup a facility can afford," he notes.
The intent of the change may have been to let hospitals in rural areas off the hook for providing an ophthalmologist or retinal specialist 24 hours a day, seven days a week, he adds. And to a casual observer, it may seem obvious that not all hospitals can, or even need to, provide such an intense level of specialization.
But because the change in EMTALA only requires hospitals to provide "reasonable" specialist coverage, there is a wide area open for interpretation.
"Even hospitals offering basic EMS response have to cover core areas of medical staff like medicine, general surgery, orthopedics, pediatrics, etc.," Fields says. "But you have to figure out what to do with those less frequent, but often very serious situations where you do need that very sophisticated specialist. I think that is our concern."
It’s a real concern for providers of emergency medical services (EMS) because they may be left trying to determine which hospital is maintaining what types of specialists as backup for their ED, says Robert Bass, MD, FACEP, executive director of the Maryland Institute for EMS Systems, and chair of ACEP’s EMS committee.
"From an EMS standpoint, we are concerned that we are going to have to start surveying emergency departments to determine who has complete coverage," he says. "Say we got a patient with an acute myocardial infarction; are we going to have to be concerned about which EDs have cardiologists that day and which don’t?"
The new regulations also clarify that specialists can be on call at more than one facility. Particularly in rural hospitals with few available specialists, this could result in hospitals left with days with very little specialist coverage.
"The regs say that reasonable’ coverage is required. If you’ve only got five doctors and they say that it is reasonable to take call once every two weeks or once a month, and they can argue it is not reasonable to be on call every five days or four, or even every three days, what can you do?" Bass points out.
It’s important to remember, Fields says, that EMTALA is a mandate on individual hospitals, and it’s not designed to be the safety net that some wish it to be.
"The real dilemma, especially with the backup issues, is that some of the specialty services you probably don’t need at every hospital, yet EMTALA is demanded of individual hospitals. It is not obvious to people, especially people in emergency medicine, how the local area will figure out a way to have hospitals that are still competing against each other for some services to comply with EMTALA in a way that provides safe, full-scope backup for patients."
Sources
- Wesley Fields, MD, FACEP, President, American College of Emergency Physicians, California Chapter, 1010 11th St., Suite 310, Sacramento, CA 95814.
- Robert Bass, MD, FACEP, Executive Director, Maryland Institute for EMS Systems, 653 W. Pratt St. Baltimore, MD 21201-1536.
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