Washington Watch

EMTALA: What Do Hospital Departments Think About It and What Is HCFA Doing To Enforce It?

by James L. Thorne, Esq.

Introduction
Passed by Congress as part of the Consolidated Omnibus Reconciliation Act (COBRA) of 1985, EMTALA sought to address the perceived problem of "patient dumping." This physical sounding term encompasses certain situations where hospitals fail to screen, treat, or appropriately transfer patients.

Thus, according to Section 9121 of COBRA, Medicare-participating hospitals must provide a medical screening exam to any individual who comes to the Emergency Medicine department and requests examination or treatment for a medical condition.

In a "nutshell," 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 the opinion of this writer, Congress addressed a valid concern when it passed EMTALA. Yet, Emergency Medicine practitioners have voiced their misgivings about certain aspects and effects of the law since it was passed. Has Congress or the appropriate federal regulatory agency been listening and, more importantly, has either done anything to address the shortcomings of EMTALA?

Well, the involved federal regulatory agency--Health and Human Services-has been listening. Further, its Office of Inspector General just issued two companion reports on EMTALA in late-January 2001. These reports and what they conclude is the subject of this article. One report is entitled a "Survey of Hospital Emergency Departments." The other, companion report is entitled "The Enforcement Process." The reports are definitely worth reviewing by AAEM members because they catalogue the EMTALA issues you have been raising for years. However, if these reports are any indication of federal action, it does not appear that true reform will be made unless Emergency Medicine practitioners actively push for reform.

Background
It is important to remember that (as stated in one of the new reports); Congress created a bifurcated enforcement mechanism for EMTALA within the Department of Health and Human Services. The Health Care Financing Administration (HCFA) authorizes investigations of dumping complaints by State survey agencies, determines if a violation occurred, and, if appropriate, terminates a hospital's provider agreement. In conjunction with HCFA, the Office of Inspector General (OIG) assesses civil monetary penalties against hospitals and physicians and may exclude physicians from the Medicare program for repeated or gross and flagrant behavior. The HCFA may seek the input of the local peer review organization (PRO) after the State's investigation to help determine whether the hospital adequately screened, examined, and treated a patient but must seek PRO input in most circumstances before forwarding a case to the OIG if the alleged violation involves a question of medical judgment.

This bifurcated enforcement mechanism may be part of the enforcement problem and lack of timely remedial action that Emergency Medicine practitioners need.

The "Survey of Hospital Emergency Departments" Report
Both reports were prepared by the OIG's Office of Evaluation and Inspections (OEI), in particular, the OEI's San Francisco regional office. The reports were based on information collected between June and December 1999.

In its actual collection of information, the San Francisco regional office conducted two surveys to achieve its objectives. The first was a telephone survey of emergency department directors at more than 100 randomly selected hospitals across the nation. The second was an anonymous mail survey of emergency department and on-call personnel at the same hospitals. In addition, San Francisco regional office personnel met with representatives of another Emergency Medicine physicians' association and, according to the report, read numerous articles and reports on Emergency Medicine.

The 25-page "Survey" Report made eight specific "findings" and three recommended "action" conclusions. The "findings" and a brief explanation of each, include:

1. Emergency department personnel are familiar with EMTALA requirements, but many are unaware of recent policy changes.
   
   According to the report, only 65 percent of emergency department directors are aware of HCFA's Interpretive Guidelines, published in June 1998, and only 27 percent knew of the proposed EMTALA Advisory Bulletin issued by HCFA and the OIG in November 1998.

2. Training increases EMTALA familiarity for all staff, but on-call specialists and staff in high-volume emergency departments are less likely to receive training.
   
   According to the report, almost two-thirds of emergency physicians, nurses, and registration staff have received some training on EMTALA, compared to only about one-quarter of on-call specialists. In high -volume departments, emergency physicians were more likely than any other staff type to access multiple information sources.

3. Respondents report that hospitals generally comply with EMTALA, but some concerns about compliance remain.
   
   Based on the survey, 95 percent report that their hospital has implemented policies to comply with major EMTALA requirements. However, a small number believe that their hospitals are engaged in practices that may violate the law. Four percent believe an inappropriate transfer from their hospital has taken place in the past year. Eight percent believe that decisions regarding medical screening are at least sometimes influenced by a patient's ability to pay. Fifteen percent of staff in those hospitals that seek authorization for screening exams and 10 percent in those that seek authorization for stabilizing treatments believe that screening or treatment is not provided when authorization is denied.

4. Respondents believe that some aspects of EMTALA are unclear or questionable.
   
   It will probably come as no surprise to AAEM members that 40 percent of emergency physicians and more than 60 percent of directors believe that some parts of the EMTALA law or regulations are unclear. For example, since they cannot guarantee timely appointments with specialists, emergency physicians worry that EMTALA may obligate them to ensure that a patient has appropriate follow-up outside the emergency department. Further, several respondents were unclear whether EMTALA applied to a transfer of an emergency department patient to another building on the same medical campus. Others questioned EMTALA's applicability to patients who are otherwise stable but must be transferred to a specialist's office or another facility with special equipment in order to complete testing.
   
   State law can also further complicate matters for hospitals and emergency physicians. For example, according to one emergency department director, Indiana's Medicaid regulations stipulate that the emergency physician should call the primary care physician before screening, but EMTALA mandates a screening without delay. Others say that assessing civil monetary penalties in EMTALA cases where there is a quality of care issue turns the law into a federal malpractice statute.
   
   Another particularly controversial question, according to the survey is "When does a hospital's EMTALA responsibility end?" For example, is there EMTALA exposure whenever an appropriately discharged patient is readmitted for an exacerbation of an original condition? According to the report, the HHS plans to issue a Notice of Proposed Rulemaking on this issue in the near future.

5. Respondents believe that while EMTALA may help protect patients, it also may contribute to a hospital's administrative and financial problems.
   
   In contrast to certain patient care improvements, EMTALA has had a negative effect on other aspects of Emergency Medicine, according to more than 25 percent of directors and almost 40 percent of the staff surveyed. Surprisingly (because it was not asked), 12 percent of directors volunteered that EMTALA has contributed to the financial problems that many emergency departments are now facing. Mandating medical screening and stabilization of emergency conditions without providing a source of funding is one of the major concerns "volunteered " by the respondents. Several respondents commented that having to provide screening exams for non-emergent patients who lack insurance or whose insurance will not pay is especially frustrating. It does make you wonder what percent of the respondents would have addressed this issue if the question had been asked-a higher percentage, no doubt!

6. Investigations, many of which do not confirm violations, often prompt changes in forms and procedures.
   
   According to HCFA logs, since 1986 a total of 73 investigations were conducted at 47 of the 123 valid hospitals in the survey sample. Violations were confirmed in only one-third of the investigations, but almost half of the investigated hospitals changed some aspect of their emergency department's operations as a result. Typically, hospitals revised old forms, introduced new ones, or amended other practices.

7. Managed care presents special problems for hospitals in complying with EMTALA.
   
   Almost 20 percent of emergency department directors say that dealing with managed care strains emergency department finances, a situation that is made worse by EMTALA. According to many respondents, private managed care organizations deny or reduce payment for mandated medical screening exams when the patient is found not to have an emergency condition. As a group, the respondents reported that many private plans will not pay for emergency services that have not been authorized before they are rendered. This leaves hospitals with the difficult choice of calling the health plan before the exam and possibly violating EMTALA or waiting until after the exam is provided and risking non-payment. In the Advisory Bulletin, HCFA and OIG state they "were unable to resolve (the issue) because we do not have the authority under (EMTALA).to regulate non-Medicare and non-Medicaid managed care plans."

8. Hospitals have difficulty staffing on-call panels for some specialties.
   
   As you know, a hospital's EMTALA responsibilities extend to on-call specialists and these responsibilities are included in the hospital Medicare provider agreements. Yet, according to the report, many hospitals are having difficulty filling on-call rosters, particularly in States with high managed care penetration or a large proportion of people without health insurance.

The report indicates that only 12 percent of emergency physicians and nurses give specialists' refusal as a reason for their on-call shortage, but, of these respondents, 63 percent work in California, Pennsylvania, Texas, or Nevada. These are the states with the highest rates of HMO penetration and uninsured persons among all of the states sampled in the survey. Further, according to the report, ".research conducted by private organizations suggest that financial concerns are at the heart of many specialists' reluctance to join call panels." Specialists do not wish to participate on call panels because they stand a good chance of not being reimbursed for services they are required to provide.

Based on these "findings," accurate or not, the OIG "Survey of Hospital Emergency Departments" then concluded with the following three recommendations:

1. Federal Register publication (of EMTALA publications and changes) should be supplemented with other methods of communicating important policy decisions, such as e-mail and Internet.

2. HCFA should continue to support legislation that would compel private managed care plans to reimburse hospitals for EMTALA-related services provided to their members, including screening exams which do not reveal the presence of an emergency medical condition.

3. Uncompensated care and on-call panels are problems for many hospitals. "These are very complex problems which exceed the scope of our study: solutions may involve action at the Federal, State, and local levels as well as from private entities."

The OIG report recommendations were agreed to by HCFA and the HCFA's January 16, 2001 "letter of agreement" is attached to the report. Although the HCFA letter is, in some respects, a "form" response, the letter, which you should also read, does contain certain information you may not know. For example, the letter indicates that HCFA plans to issue a Notice of Proposed Rulemaking in the near future that will further clarify EMTALA requirements. Further, according to the letter, a HCFA work group was convened in April 2000 to begin revising the Interpretative Guidelines-Responsibilities of Medicare Participating Hospitals in Emergency Cases (no completion date was stated). In addition, the report recommends that HCFA should establish an EMTALA technical advisory group. In "response," the HCFA letter mentions that HCFA did meet, in 1996-1997, with a group of interested stakeholders from professional organizations and consumer groups and that "a more formal approach may be effective."

The "Enforcement Process" Report
In the 22-page companion "Enforcement Process" Report, the OIG's San Francisco Regional Office interviewed staff at HCFA regional offices, State survey agencies, the local peer review organizations (the PROs), and the OIG-also between June and December 1999. In addition, the San Francisco office, reportedly, reviewed relevant HCFA manuals and guidelines as well as law journals. Further, the regional office personnel obtained logs from HCFA that contain information about EMTALA complaints and the outcomes of investigations between Fiscal Years 1986 and 1998.

This companion report made four specific "findings" concerning EMTALA enforcement and four related recommendations to HCFA. None of the findings are complementary of HCFA. The companion report's "findings" and a brief explanation of them include:

1. The EMTALA enforcement process is compromised by long delays and inadequate feedback.
   
   According to the report, delays in processing EMTALA cases have worsened in recent years, despite a decline in dumping cases. In addition, HCFA regional offices often fail to communicate their decisions to state survey agencies and PROs.

2. The number of EMTALA investigations and their ultimate disposition vary widely by HCFA region and year.
   
   Among others, the San Francisco team found that regional offices vary greatly in the number of EMTALA investigations that they conduct and the outcomes of those investigations. For example, one region, reportedly, found violations in 22 percent of its investigations while another region found violations in 68 percent of its investigations.

3. Poor tracking of EMTALA cases impedes oversight.
   
   The report indicates that HCFA's investigation logs contain numerous errors and omit key information about dumping complaints and EMTALA investigations.

4. Peer review is not always obtained before HCFA considers terminating a hospital for medical reasons.
   
   According to the report, HCFA instructs States to obtain professional medical review during an EMTALA investigation but this does not always occur. Importantly, in 1998, HCFA specified that "review physicians should be board-certified (if the physician being reviewed is board-certified) and should be actively practicing in the same medical specialty as the physician treating the patient whose case led to an alleged violation."
   
   Based on these findings in OIG's "Enforcement Process" Report, the San Francisco team made the following "enforcement" recommendations to HCFA.

1. HCFA should increase its oversight of regional offices,

2. HCFA should improve collection and access to EMTALA data,

3. HCFA should ensure that peer review occurs for cases involving medical judgment, and

4. HCFA should establish an EMTALA technical advisory group.

It is, perhaps, noteworthy that HCFA also concurred with the "Enforcement Process" Report and did so, apparently, utilizing the same January 16, 2001 "form" letter attached to this companion report!

Conclusion
The conclusions and recommendations in the two EMTALA reports will not come as any surprise to AAEM members. Yet, they are worth reviewing. The included graphs are helpful, especially the "figure 2: EMTALA Enforcement Process" on page 7 of the Enforcement Process Report. An important question for AAEM members may be what should AAEM do about the reports? For one, the reports can be used as source documents for demanding HCFA to heed and act on the reported EMTALA failures and recommendations. From my perspective, AAEM should consider calling for the creation, by HCFA, of the recommended EMTALA Technical Advisory Group. Further, AAEM members should serve on the group. Last, the group should work for suggested legislation to compel reimbursement to hospitals and physicians for provided EMTALA-related services.

Editor's Note: AAEM members can call the AAEM office at (800) 884-2236 for copies of the reports.

James L. Thorne is Washington government relations counsel for AAEM. He is Vice President of the Washington, DC governmental relations firm R. Duffy Wall & Associates, Inc. He can be reached at (202) 737-0100 or thornej@RDWA.com.