ACS Views on Legislative, Regulatory, and Other Issues

Emergency Medical Treatment and Labor Act (EMTALA)—

Letter to Jim Bossenmeyer, 8/16/04
ACS Response to Revised EMTALA Interpretive Guidelines 7/04
Revised EMTALA Interpretive Guidelines (415K PDF)
CMS Interim Guidance Memo on EMTALA (75K PDF)
EMTALA Summary
Final Rule on EMTALA, (285K PDF) 9/9/03
CMS FAQ sheet clarifying hospitals' responsibilities concerning on-call physicians (95K PDF)
Memorandum stating CMS' revised policy to allow on-call physicians to provide simultaneous coverage at several hospitals (85K PDF)
Letter to Thomas A. Scully, 7/8/02
Overview

Background

Congress passed the Emergency Medical Treatment and Labor Act (EMTALA) as part of the Consolidated Omnibus Reconciliation Act (COBRA) of 1985 to address the problem of "patient dumping." Under EMTALA, Medicare participating hospitals must provide a medical screening exam to any individual who comes to the emergency department and requests examination or treatment for a medical condition. If a hospital determines that an individual has a medical emergency, it must then stabilize the condition or provide for an appropriate transfer. The hospital is obligated to provide these services regardless of the individual's ability to pay and without delay to inquire about the individual's method of payment or insurance status. In addition, the statute also requires hospitals to maintain a backup call system for any service for which the hospital promotes itself to the community. Failure of hospitals or physicians to comply with any EMTALA mandated responsibilities can result in fines from $25,000 to $50,000 for each infraction.

Over the last few years, many surgeons have become more reluctant to take call at hospitals. These staffing shortages most often occur because the community in which the hospital is located does not provide a sufficient base of patients to support specialists in a particular field or because certain services are not offered at the hospital. In addition, significant reductions in payments for surgical services under Medicare's resource-based physician payment system and the managed care industry's reluctance to pay for many EMTALA mandated services have further exacerbated this problem.

This white paper illustrates: the problems facing physicians today as a result of the expanding scope of EMTALA; possible solutions for refining the statute; and appropriate action that the College should take to educate policymakers and the Fellows regarding these proposed solutions for strengthening our country's health care safety net.

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Problems

EMTALA presents a broad range of problems for surgeons and their patients.

• In many parts of the country, especially in rural areas and those with small hospitals providing care over a great distance, there is an insufficient base to support specialists in a number of fields, including neurosurgery, cardiovascular services, pediatrics, obstetrics/gynecology and orthopedics. A single specialist -- who covers multiple hospitals, possibly across a wide area -- cannot possibly respond in a timely fashion to a call from an emergency room. In addition, a single specialist covering an entire area might be required to be on-call 24-hours a day, seven days a week. These requirements are clearly impossible to meet. Finally, when "on-call", a physician's response is expected to be timely, and in fact, rapid. In some states, such as New Jersey, response time has been defined as within 30 minutes.
  
  
• As a condition for joining a hospital's medical staff, many physicians are required to take emergency call, in most cases, without limitation. Physicians cannot be selective about the day or the circumstance, such as limiting their on-call responsibilities to just weekdays or weekends. In fact, the physician is expected to leave other activities, such as office practice or potentially even a surgical procedure, in order to answer the call from the emergency department. This may cost the practitioner revenue because of the abandonment of regular medical activities.
  
  
• The problem has been compounded by the fact that managed care plans often require pre-authorization for services in the emergency room. Under EMTALA though, it is illegal for hospitals and physicians to obtain pre-authorization before providing medical treatment. Thus, the hospital and physician are often between a rock and a hard place when dealing with emergent managed care patients -- either foregoing payment or risking EMTALA fines.
  
  
• Managed-care physicians, who provide their services on a prepaid basis, have little motivation to provide services in the emergency room setting, especially when their HMO won't reimburse them for these activities. As a result, the private practitioners left on emergency room panels and emergency room physicians are increasingly carrying the burden of caring for uninsured or poor-paying patients. Emergency facilities, which set up dual, parallel coverage by managed care physicians and private physicians have proven to be unwieldy, inefficient, and too expensive to maintain.
  
  
• Physicians are withdrawing from emergency room panels rather than subjecting themselves to EMTALA's onerous requirements. Hospitals, which mandate emergency room coverage as a requirement for hospital privileges, are finding their medical staff shrinking because physicians would rather resign from the staff than deal with the accompanying burden of EMTALA responsibilities. The result is a hole in the safety net for patient care and closure of emergency rooms. Some hospitals have responded to this problem by even offering stipends to physician panels to cover the emergency room, but in many cases these hospitals cannot maintain funds to underwrite such programs or physicians to fill them.
  
  
• These phenomena may paradoxically promote the use of emergency services and contribute to the current over-crowding of emergency rooms and ER diverts in urban areas. Patients are increasingly migrating to urban centers for emergency services, and some, knowledgeable of EMTALA requirements for evaluation and treatment, may use the emergency room when they cannot get an appointment with their regular specialist or primary care physician.
  
  
• Those physicians who continue to cover emergency rooms find themselves working long hours, often entire weekends, followed by the continuation of their regular practice the following Monday. It is not uncommon for physicians and surgeons to have working hours that exceed the limits that have been defined for residency training, i.e., 80 hours per week.
  
  
• Many are unclear regarding the geographic and temporal limitations of the EMTALA regulations. Although originally defined as covering individuals that present to the emergency department, the regulations are now being interpreted as extending coverage to the entire hospital grounds, including physicians' offices within the hospital. EMTALA mandates have even filtered into the inpatient setting -- providing coverage for any emergency arising during hospitalization, which can often lead to a call to the emergency physician panel to manage the inpatient emergency, rather than the normal lines of referral.
  
  
• There may be other unintended consequences of EMTALA, such as fear of EMTALA sanctions inhibiting appropriate transfer for specialized care. Physicians may choose to treat a condition which would be better treated at another institution, rather than risk an EMTALA fine or sanction.
  
  
• When a hospital or management company buys an institution, physicians on staff may be required to cover other hospitals, which are affiliated with the new entity, even though these hospitals are many miles from where the physician traditionally practices.
  
  
• There is concern that an EMTALA violation might be used as a basis for malpractice action.
  
  
• Many hospitals are facing extreme financial situations as a result of neighboring countries channeling uninsured patients into the United States with the knowledge that U.S. hospitals are required to treat these individuals under EMTALA (i.e., Mexican patients crossing the border to receive uncompensated care in Arizona).
  

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Possible Solutions

The following solutions are recommended for reforming EMTALA

• The term, "emergency condition", needs to be better defined and its limitations set. EMTALA should be limited to the hospital emergency department, as originally intended.
  
  
• The government should reimburse hospitals and physicians for services rendered under EMTALA mandates through Medicare, Medicaid or some form of uncompensated care pool. The present circumstance taxes doctors under an unfunded government mandate.
  
  
• Should the government fail to provide some form of coverage for services rendered under EMTALA, it should amend the internal revenue code to provide tax deductions to physicians that provide uncompensated care under the statute.
  
  
• Managed care plans should be mandated to pay for justifiable screening and treatment. The Medicare "prudent lay-person" criteria for reimbursement of emergency room services should be extended to all private insurance plans. It is critical that there be such a standard for managed care plans that is defined, implemented, and based on symptoms, not the final diagnosis. Furthermore, all healthcare insurers should be held liable for failure to cover EMTALA-mandated services and managed care plans' pre-authorization requirement should be eliminated for emergency care.
  

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ACS Action

Following are activities the College may sponsor to help address this issue on behalf of surgeons and their patients:

• Physicians and surgeons need to understand the appropriate and acceptable mechanisms for safe transfer of patients, including the required written permission of the patient. The ACS should work to educate surgeons regarding EMTALA regulations so that they understand their responsibilities and do not inadvertently fail to comply. This may be done through: interactive web-based programs; presentations to the College's state chapters; or articles in the ACS Bulletin.
  
  
• ACS should support legislative language developed by the AMA multi-specialty EMTALA Task Force to reform aspects of EMTALA.
  
  
• ACS should continue to pressure HCFA to delay further expansion of the EMTALA regulations until the forthcoming GAO evaluation of EMTALA's impact on hospitals and physicians can be studied.
  
  
• Major provider organizations, including the ACS, AHA, and the JCAHO, should unite to become actively involved in reforming EMTALA. Policymakers and the public need to be educated that the current situation is unsustainable and that while physicians and surgeons will continue to put patients first, access to care will continue to deteriorate unless the federal government reforms EMTALA. In order to make this case more strongly, the problem should be quantified. In making a public case, not only data but also exemplary case studies should be used.
  
  
• In working with JCAHO, the College should persuade the Commission to disallow hospital advertising for services that the facility is not truly equipped to provide, to both protect patient care and minimize the need for surgeons to take call at hospitals where they do not normally practice.

In summary, EMTALA has become an expanded catchall for "emergency" care. While a well-intentioned attempt to provide anti-dumping protection in the emergency room setting, the consequences of today's EMTALA requirements are impractical, unrealistic, expensive, and compromising to the safety net that it was intended to create.

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Revised April 11, 2006

ACS Views on Legislative, Regulatory, and Other Issues

Advocacy and Health Policy