EMTALA Update

Stephen J. Frew, JD
medlaw.com

The newest government advisory committee on EMTALA is headed for another disaster if their initial draft statement of issues and reform is an indicator. Like the prior industry group, the current one is looking at industry "feel good" remedies. In this case, that will endanger the public, create bad press for the industry, and does not address the actual issues and concerns in the field.

Our 2001 survey of our website visiters indicated that more than 98% of the responders (including physicians, nurses, lawyers, and hospital administrators) favored the requirements of the EMTALA law and disagreed only on specific applications and the vague standards CMS applied.

WHAT DO HOSPITALS AND DOCS WANT FROM EMTALA REFORM?

What they wanted, the survey suggested, is a clear set of standards that provide a "safe-harbor" -- they wanted detailed a prototype policy and procedures they could adopt and be certain that they would not be in violation.

SO, WHERE IS THIS GROUP HEADED?

The lofty goal of the technical advisory group is "changes in regulation, enforcement processes and creation of a new structure to guide development of a comprehensive approach to emergency care availability." It sounds good, but it is as vague and politically correct as any of the CMS advisaries. Worse yet, the group started out with some fundimentally incorrect "givens" that guarantee that an objective and effective solution is not going to be forthcoming.

Their first major misconception is that "the scope of EMTALA has been broadened from its orginal application to the emergency department."

While the PPS regulations have introduced new issues beyond the original scope of the law, the legal language of the law has made it clear that more than the ED was covered from its inception. The fact that the industry chose to ignore that does not mean that the Supreme Court's application of the plain wording of the law to house-wide is wrong or creating new enlargements.

STRIKE TWO --

Then they make the second misstatement is the "given" that the sole purpose of the law was to provide access to indigent patients in the ED. That is only ONE of the reasons for the law. The basis of the law was both denial of access and active dumping on other facilities-- transfers of indigent patients. Research submitted suggested that transfers killed patients. Focus on the access piece and ignoring the transfer piece is a politically convenient approach, but it ignores the reality that EMTALA was an anti-transfer law just as much as an ED access rule.

It also conveniently ducks the true issue that allowed these practices to exist in 1985 -- the fact that 27 states allowed private hospitals to deny care to non-paying patients even in life-or-death situations or to transfer them at great risk to their lives with no remedy under the tort laws or under the hospital licensure laws of those states.

The very first citation against a hospital was for TRANSFERRING OB patients for financial reasons...not for denial of access to ED's...and it was in Pete Stark's (EMTALA author) backyard. That is a definite indication of what was intended IN REAL TIME.

STRIKE THREE--

This could be an innocent mistake...maybe no one on the committee was in active practice of medicine in 1986, so they don't remember. Or maybe they were in practice then, and Alzhiemer's has set in. In 1986, the LEADING complaint from ED physicians was that they could not get on-call physicians to come in and take care of patients even in critical cases.

In 1988, the on-call requirement was added to clarify (as if it were not already pretty clear) that on-call physicians had to come in and that hospitals had to set up call systems because on-call physicians were STILL REFUSING to come in.

Again, the very first citation against a physician was against a specialist who refused to render care to an uninsured, unaligned patient. That violation occurred within days of EMTALA going into effect, and the industry organizations spent hundreds of thousands of dollars on appeals trying to beat EMTALA on-call application -- only to have the 5th Circuit Court of Appeals shoot them down.

Again, that is more indicative of intent and clear language than nastalgic references to the "Good Old Days" when EMTALA only covered "evil" ED docs that turned away patients, and the medical staff always came in when called.

Come on people...it is bad enough to lie to the outside world, but we should not create shared industry delusional excuses among ourselves.

The on-call crisis existed in 1986 and it still exists today, only worse because it now is freed from the issue of "professionalism and ethics" and refusing call and letting patients suffer in some cases has become politically acceptable in terms of "lifestyle". The physician talking about the ethical duty to serve the community is now a rare individual -- in 1985 and 1986 the species had not been quite as close to extinction as it is today.

STRIKE FOUR --

As reported in the AMA News, surveys have documented ED over-crowding, which in fact exists, but there is a common thread to articles that attempts to causally link this problem to the fact EMTALA requires us to reasonably evaluate everyone who presents.

A. That is good medicine B. That is good ethics C. That is good risk management D. That should have been the practice even without a rule -- it wasn't and isn't

EMTALA IS NOT THE CAUSE...IT IS THE RESPONSE

EMTALA cannot be objectively blamed for ED over-crowding when studies confirm that ED visits have sky-rocketed but non-urgent patients are dropping -- perhaps because they cannot get seen in a reasonable time.

First of all, most of the ED's that I with which I have discussed over-flow have had problems with patients backing-up from a lack of in-patient beds predominantly, not generally because of primary presentations overwhelming the ED while beds are wide open in-house.

Next, many ED's operating in blatant violation of EMTALA have the same problems. Almost all of the ED's I have surveyed were suffering from inadequate staffing and inadequate space allocation that obstructed patient flow.

They generally had severely dysfunctional systems flow, and their general medical staffs were using the ED as a convenience support service to their office practices to lower office over-head. Hospitals were subsidizing private physicians by diverting scarce ED resources to serve office patients.

THE REAL ISSUES:

And...there is one more issue...hospitals closed beds in anticipation of the great managed care elimination of hospitalizations. It did not materialize -- why?

At least one overwhelming factor is that the baby-boomers are aging, and we are now requiring exponentially more care, using more resources, and going to the hospital more often.

The government and insurance has slashed access to private healthcare by cutting physician compensation and eviscerating graduate medical education because "we need more generalists". We cannot get in to the clinic within a reasonable time, and the physicians have referred us to the ED, or we self-select the ED.

The ED is over-crowded...that much is true.

Eliminating EMTALA would NOT improve that 2% -- we have major problems to deal with, but EMTALA should be way down the list in terms of causes for over-crowding. How about the panel coming up with a way to obtain an adequate number of qualified nurses for the ED -- now, THAT would make a difference. Or how about compensation for care? Or access to hospital beds? Or access to primary care?

I personally would like to have the Secretary's Advisory Committee on Regulatory Reform solve the main issue -- the aging of baby-boomers (like me) -- and NO, euthanasia is not acceptable. Scape-goating EMTALA is not intellectually honest and serves to obscure the financial, industry, and social issues that are at the true core of the issues of ED and hospital over-crowding.

SPECIFICS FROM THE COMMITTEE DRAFT STATEMENT:

1. Modify the definition of "hospital property" to be only the Emergency Department and any facility that holds itself out to the public as being available to provide emergency or urgent care.

MY ANSWER: If I drag myself to the driveway of the hospital with a heart attack, I have not made it to "hospital property" under this suggestion -- result, it is OK if the hospital leaves me there to die.

UNACCEPTABLE.

The duty to a patient should not be artificially limited -- it should cover the hospital campus and hospital operated units or services. CMS over-did it when they extended it to remote sites.

To limit EMTALA to exclude other areas of the hospital, such as surgery, OB, or the hallways will take a partial REPEAL of EMTALA because the administration of CMS cannot change the Supreme Court opinion on what the law provides.

And...hospitals in CA are closing ED's right and left to evade emergency care -- if I have a heart attack and walk into a capable hospital without an ED, the committee recommendation would allow this hospital to say -- "sorry we don't see emergencies, go to the next hospital because EMTALA doesn't apply to us."

UNACCEPTABLE.

The committee cannot say --"well that wouldn't happen". It happens NOW in some places even with EMTALA. The industry will not prevent these problems from occurring if EMTALA backs off. ..it will be an open invitation to return to the "bad old days" because you collapsed in the cafeteria instead of coming to the ED.

2. Define limits of EMTALA by clarifying that EMTALA requirements end when an ER physician has made a decision that no emergency exists and the patient may be dismissed, that an emergency exists and the patient requires admission, or that an emergency exists which requires transfer to another facility.

MY ANSWER: First, this will take a partial REPEAL of EMTALA, because the courts have already defined the limits of EMTALA to include the on-going care, etc. including in-patients known to have an EMC.

The suggestion also repeals the restrictions and requirements for transfers, on-call physicians, duty to accept transfers, and whistle-blower protections, once the ER physician makes a decision. (Let alone addressing the issue of whether it was a forced decision based on hospital economics)

The suggestion is absurd on its face --" we have a duty to determine whether or not you have an emergency, we are not subject to review of that determination, and if you happen to have an emergency, we only have to confirm it, and then our duty ceases..."

3. Provide immediate guidance that use of community based EMS protocols, including established 911 protocols, is not a violation of EMTALA.

MY ANSWER: I strongly endorse community-wide EMS plans that involve EMS, law enforcement, hospitals, fire and dispatching in a single, unified approach to the delivery of emergency care. Unilateral decisions by hospitals should not be allowed to dictate hospital destination. The CMS "Ambulance Rule" does not adequately protect public safety. If a "community EMS protocol rule" replaces the ambulance rule, it should require proof of broad-based input and be driven by EMS, not by hospitals.

4. Exclude from EMTALA patients who are referred to the Emergency Department for diagnostic or scheduled therapeutic services.

MY ANSWER: If you cannot handle the patient load of unscheduled patients, why do you want to perpetuate subsidizing office practices by performing services that can be done in the office and continue to be overwhelmed?

If the issue is having to give an MSE to these folks, EMTALA does not require it now.

You only have to log them as scheduled visits or out-patient testing. The exception is if they ask for help or demonstrate a need for current assessment.

This is not a hard one -- CMS has not been arbitrary on this. A patient comes in with orders for pain killers, however, it is not EMTALA that requires the exam -- it is DEA. Changing CMS regs on EMTALA will NOT change that. From a risk management practice, these chronic pain patients are walking time bombs for lawsuits, and ED physicians are masochists to expose themselves to the moral, legal, and licensure risks involved by attempting to avoid MSE's.

I am sorry, I agree that logic and EMTALA say that if the your mom comes in for a scheduled EKG and announces she is having crushing substernal chest pain at this moment, the ED physician needs to get involved and assess this patient NOW -- EMTALA requires an MSE based on the obvious need ...not because of the scheduled EKG. I agree.Why should the committee want the rule to be "If you have a heart attack during a scheduled visit, its ok if you die, because you are not protected by EMTALA."

5. Eliminate the requirement for ABN's to be provided in the ER prior to screening and stabilization.

MY ANSWER: That is already the OIG guidance, but apparently asome PI's are ignoring it.

There are virtually no ABN procedures likely to occur on an MSE and stabilization in the ED, and you are not supposed to get a blanket ABN "just in case" because it is supposed to be specific to the proposed test.

If CMS wants to get the PI's in line on this, that is fine with me.

6. Provide guidance that in the event of disaster or conventional attack involving multiple casualties and where hospitals use an established disaster plan, EMTALA does not apply.

MY ANSWER: I already issued an editorial on this -- including specific standards that should be included in the policy.

7. Provide guidance that in the event of bioterrorism, or threat of bioterrorism, EMTALA does not apply and where hospitals follow a community based, regional, or CDC directed protocol (especially for highly contagious outbreaks like Small Pox) EMTALA does not apply.

MY ANSWER: Again, I have previously editorialized on this one and the standards that such a policy should include. This provision, however, should not be a loophole for hospitals to "opt-out" of preparedness. Hospitals should have to assume an affirmative role in the protocol and preparedness system.

8. Review, update, and clarify the Interpretive guidelines.

MY ANSWER: This is certainly reasonable, but it cannot change the regulations, statute, or Supreme Court decision, so the committee needs to know the scope of the authority for the guidelines is very limited. I suggest that the guidelines should include the standards established by the Supreme Court in the Roberts interpretation of EMTALA and the 1st Circuit case in Lopez-Soto regarding the proper application of the law to in-patients. The in -patient regulations should also be issued per the Supreme Court direction to the Solicitor General.

9. Notify hospitals when EMTALA investigations are completed, regardless of the outcome.

MY ANSWER: That is very reasonable. People should not have to live in fear of whether their case remains open for possible OIG prosecution after the file is closed.

10. Modify enforcement practicies by making PRO review mandatory early in the process and improving training of regional offices and state agencies to improve performance and consistency of review of complaints.

MY ANSWER: Now we are getting to a real issue.

The committee approach is appropriate and the concept of achieving uniformity should take priority over achieving "more favorable" rules. Another group that needs training is the PRO review staff and physicians so that they understand and apply the legal standards, and not usual and customary medical standards.

MISSING THE MARK

You will notice that it takes a long way into the priority list before I find areas of agreement with the committee. That is very disturbing, and suggests that the committee is going off on an agenda that is not what is needed.

Now, the committee may say that these criticisms are a misinterpretation of what is intended...but misinterpretation complaints arethe basis of their criticisms of EMTALA. So, the job they have taken on is to be precise and surgically accurate in their actions and words.

That means getting out of generalities and into specifics that cannot be misinterpretted or misapplied.

And by the way...where in this set of goals is the one thing that the people in the field wanted. Where is the "safe harbor" requirement that CMS create a model compliance system that hospitals can adopt and be assured that they will not be in violation of EMTALA so long as the hospital assures compliance with it.

Where are the suggestions that CMS be given the resources to produce educational materials and provide programs to educate providers?

Where are the issues about federal standards to reimburse hospitals and doctors for uncompensated emergency care?

Where are the suggestions about what the industry is willing to do to assure hospitals and doctors understand and apply the rules?

Where are the patient safety standards to off-set reduced regulation?

Or is this panel just another "feel good" demonstration of cooperative effort at achieving a good appearance with no intention of making any contribution to an overall solution?

That remains to be seen.

Stephen A. Frew JD
Publisher
www.medlaw.com

I am tired of CMS saying that "We are not in the job of telling hospitals what to do -- we just tell them when they did it wrong." CMS has its failings on EMTALA and so does the Industry. It may be as challenging as a Middle East peace accord, but if the committee wants to claim any legitimacy, their recommendations need to address reality, and the reality is that patient safety cannot be sacrificed for industry convenience. The goal needs to be assured public safety to be achieved with reasonable rules and predictable enforcement.

There is still time for the committee to do some good. I hope to see that happen.