Access to emergency care was the subject of federal legislation over 50 years ago, but the need for more rigorous requirements resurfaced in the early 1980s when numerous accounts of patient “dumping” received congressional attention. Out of this a new federal statute called the Emergency Medical Treatment and Labor Act (EMTALA) was conceived. It was a small amendment to a massive budget bill, the Consolidated Omnibus Budget Reconciliation Act (COBRA). This relatively inconspicuous piece of legislation and the 1989 and 1991 amendments to it, as well as final regulations published in 1994 by the Health Care Financing Administration (HCFA is now named the Centers for Medicare and Medicaid Services or CMS) and the large body of court decisions that have resulted from it, have made the scope of EMTALA so broad that now most of its provisions have little, if anything, to do with economically motivated patient transfers.
First, and foremost, EMTALA represents a right to emergency health care, an unfunded government mandate. As Robert Bitterman relates in his book EMTALA: Providing Emergency Care Under Federal Law, EMTALA provides far more than a guarantee of emergency department screening and stabilization for true emergency conditions. It is, in reality, catastrophic health coverage for any individual who comes to the emergency department regardless of whether they have insurance coverage or the ability to pay.
Congress also provided a private cause of action by individuals and facilities. Lawsuits brought by individuals who have suffered personal harm because of an EMTALA violation have become commonplace. Several years ago it became apparent that EMTALA might become a federal malpractice law and in many states an EMTALA lawsuit is not subject to the tort restrictions of malpractice actions. The courts have ruled that only hospitals, and not physicians, can be sued for damages under EMTALA. However, there are two ways physicians can become involved in EMTALA liability. First, state EMTALA equivalent laws allow harmed individuals to sue physicians. Second, hospitals may seek recourse against physicians whose actions resulted in the hospital’s liability. In addition, significant fines and penalties can be leveled against physicians for EMTALA violations including exclusion from the Medicare program. Managed care adds even more wrinkles to EMTALA compliance.
Managed care market practices have heightened the problem of declining reimbursements. At the same time managed care has not participated in providing care to uninsured or the underinsured people. In fact, as Bitterman stated in his book, the tenets of managed care are irreconcilable with EMTALA. Managed care payment practices pose disincentives for emergency department care, yet EMTALA mandates such care.
Patient “Dumping” and EMTALA
EMTALA is known as the “anti-dumping” law because it was enacted by Congress in 1986 to ensure that patients who come to hospitals for treatment of an emergency condition are neither turned away nor transferred to another facility for inability to pay. Dumping includes events that go well beyond inter-hospital patient transfers. In fact, it extends to any movement of a patient outside hospital facilities at the discretion of any person employed by or affiliated with the hospital. Thus discharging, referring, or removing a patient from the hospital building may constitute patient dumping. According to EMTALA “transfer means the movement (including the discharge) of an individual outside a hospital’s facilities.” All patient discharges from an emergency department are transfers. All patient discharges from a hospital after an inpatient stay, no matter how long, also are transfers. All traditional transfers from an emergency department or inpatient setting to another acute care facility, whether for further care or for testing, such as a CT or MRI scan, are transfers. Only those transfers of patients who have emergency medical conditions that have not been stabilized are contrrolled by EMTALA.
What Hospital Obligations are Imposed by EMTALA?
Hospitals that maintain an emergency department must comply with the following requirements. They have an obligation to provide an appropriate medical screening examination for determining whether a person has an emergency medical condition or is in active labor. They have an obligation to treat the emergency medical condition until stabilized or transfer the patient to an appropriate facility if they are unable to stabilize the patient. Hospitals with specialized capabilities or facilities are required to accept transfer of patients who require such specialized services, if the hospital has the capacity to treat the individual. Also, EMTALA requires hospitals to provide on-call physicians to enable the hospital to determine whether a patient has an emergency medical condition, to help stabilize emergency patients, and to accept patients in transfer from other facilities. The law also prohibits hospitals from delaying access because of an individual’s insurance status. What this means is that hospitals under EMTALA must provide a screening examination to any individual who presents to the emergency department, provide treatment for any emergency and accept certain patients in transfer regardless of those patients’ ability to pay or insurance status. Therefore, rights that did not exist at common law were created by EMTALA. Previously hospitals owed no duty to render any medical care, including emergency examinations and stabilizing treatment.
Under EMTALA, the hospital, not its medical staff or individual physicians, is responsible for maintaining an on-call roster for the emergency department. The hospital is required to “adopt and enforce a policy to ensure compliance with the requirements of [EMTALA].”
Why Should Neurosurgeons be Concerned About EMTALA?
Hospitals and neurosurgeons must find ways to comply with EMTALA legal mandates. Hospitals and medical staffs must acknowledge that EMTALA exists and is the law of the land. Many times, we have heard stories of anger, denial or failure by neurosurgeons, and other physicians, to take this step and not doing so thwarts meaningful compliance. Medical staffs and hospitals must design effective on-call systems so that those problems with EMTALA are minimized. Hospitals and medical staffs must define services that they will provide and those that they will not on a prospective basis. Physicians must learn the documentation paradigm required by EMTALA to protect their hospitals and themselves from liability. Neurosurgeons must become educated on the impact related to hospital on-call responsibilities. Neurosurgeons must concede that they become an agent of the hospital when they take call and no longer represent the interests of their practice or group affiliation.
One of the myths that permeates physicians’ thinking regarding EMTALA is the so-called “three specialists rule.” Many hospitals and medical staffs have conservatively defined their emergency department call requirements, as Bitterman illustrates in his book. His summary of the approach: “If you have three physicians on staff in any one specialty, you must provide uninterrupted emergency department on-call coverage for that specialty.” This approach has been talked about so much that it is assumed it actually came from CMS, but CMS specifically denies that such a rule exists. According to Bitterman, however, CMS does expect full on-call coverage when three physicians in a specialty actively practice at the hospital. CMS regulators state that they review each hospital’s activity on its own merit.
Federal law does not require an individual physician to serve “on call.” Rather the responsibility to provide specialty coverage rests with the facility that offers emergency services. However, it is obviously the physicians on the medical staff who must provide professional services. Once a physician accepts on-call responsibilities the physician must comply with EMTAALA and may be liable for failure to do so. The laws prohibit an on-call physician from refusing to respond for any non-medical reason. When on call, the physician’s duties mirror the hospital’s three main duties under the law: medical screening, stabilization, and acceptance of appropriate transfers.
When on call, the physician represents the hospital, not a private practice or a faculty practice.
Hospitals that have the ability and capacity to treat patients’ emergency medical conditions that another hospital cannot must accept patients in transfer, according to the Federal Patient Self Determination Act. The neurosurgeon must recall that when on call he or she is acting as the hospital’s agent and must accept appropriate transfers whenever the hospital is required to accept them regardless of the effect on the physician’s practice.
Bitterman clearly spells out the situation for the on-call neurosurgeon in his book. “If I’m a neurosurgeon on call for a tertiary facility, does that mean I’m on call for any neurosurgical emergency that presents to all the nearby hospitals that don’t have a neurosurgeon?” Yes, it does, and even for the not-so-nearby hospitals. If you have a skill a patient needs emergently and your hospital can handle the case, you have to accept the appropriate transfer of anyone from anywhere in the United States.
According to CMS regulations implementing EMTALA, “a participating hospital that has specialized capabilities or facilities may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat that individual.” In addition, if a hospital has generally accommodated a patient by whatever means (e.g., moving patients to other units, calling additional staff, borrowing equipment), then it has demonstrated the ability to provide services beyond its patient occupancy limit.
Neurosurgeons should recall that EMTALA enforcement is a complaint driven process. CMS does not investigate, the Department of Health and Human Services Office of Inspector General cannot prosecute, and the courts never get involved if there is no complaint from a patient, family member, whistleblower, or other interested person about the care delivered by a hospital. As Bitterman points out, a patient-centered approach to the delivery of emergency services can prevent complaints and EMTALA consequences. External issues such as managed care, hospital-physician relationships, and economic considerations are irrelevant. Acting only in the best interest of our neurosurgical patients is the only issue that matters. Finally, neurosurgeons must acknowledge that EMTALA exists and is now the law of the land.
John A. Kusske, MD, is a member of the Washington Committee and former chair of the AANS Managed Care Advisory Committee. Katie Orrico, JD, is director of the AANS/CNS Washington, D.C., Office.
EMTALA-RELATED RESOURCES
Providing Emergency Care Under Federal Law: EMTALA, Robert A. Bitterman, MD, JD, FACEP. American College of Emergency Physicians, (800) 798-1822, touch 6. https://www.acep.org/bookstore.
EMTALA: Interpreting and Complying With the Federal Transfer Law, Louise M. Joy, Esq. American Health Lawyers Association, (202) 833-1100.
The Emergency Medical Treatment and Labor Act: Survey of Hospital Emergency Departments, January 2001, Office of Inspector General, U.S. Department of Health and Human Services. Report no. OEI-09-98-00220. https://oig.hhs.gov/oei/reports/a509.pdf.
The Emergency Medical Treatment and Labor Act: The Enforcement Process, January 2001, Office of Inspector General, U.S. Department of Health and Human Services. Report no. OEI-09-98-00221. https://oig.hhs.gov/oei/reports/a510.pdf.
Emergency Care: EMTALA Implementation and Enforcement Issues, June 2001, U.S. General Accounting Office. Report no. GAO-01-747. https://www.gao.gov.
EMTALA Quick Reference Guide for On-Call Physicians, American Medical Association. https://www.ama-assn.org/ama/pub/category/2650.html.
EMTALA Interpretive Guidelines. Centers for Medicare and Medicaid Services. https://www.hcfa.gov/pubforms/07_5Fsom/somap_5Fv_5F01 3_5Fto_5F034.htm.
John A. Kusske, MD, is a member of the Washington Committee and former chair of the AANS Managed Care Advisory Committee. Katie Orrico, JD, is director of the AANS/CNS Washington, D.C., Office