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I recently started working on a previously promised thread about specialty call. Since understanding specialty call requires a basic understanding of the EMTALA law I had planned to link to previously posted information. In the course of searching however I found that while we have had many discussions about EMTALA here on the EM board we didn't have a purely informational "from the ground up" type of thread.
What follows is my explanation of the basics of EMTALA. Knowing that a lot of folks have better things to do than to slog through this I'm putting some of the useful links at the beginning. Here is the most useful link which is to ACEP's EMTALA FAQ page. It's a good read and I highly recommend it. That said remember that they are not the ultimate authority on EMTALA. That's the government and they don't really accept that role as we'll discuss later. ACEP is helping us out in that they are trying to keep up with what EMTALA has been most recently interpreted to mean by the courts and they are able to devote a lot of resources to this end.
ACEP's EMTALA FAQ
Here are a few links to old SDN threads about EMTALA:
An old thread I started as a resident when I was just becoming aware of EMTALA
EMTALA Scenarios and Discussion
General EMTALA Discussion
Here are some other useful EMTALA links:
AAEM's EMTALA page with lots of good links
Wikipedia's EMTALA page
Wikipedia's COBRA page
Some of the actual legal code (in PDF)
An EMTALA lawyer's site with some good info
So, despite the hubris of thinking I can make some of this even sort of comprehensible, here it is:
EMTALA
The Emergency Medical Treatment and Labor Act or EMTALA is of critical importance to all physicians who practice in a hospital environment and it is of particular concern to Emergency Physicians (EPs). EMTALA, which was enacted in 1986, continues to be controversial. That controversy can be seen in the statute's characterizations by its proponents as the "anti patient dumping law" and by its detractors as "the law that grants free healthcare." We will briefly discuss the controversial aspects at the end but since EMTALA is so important to the daily life and function of EPs this thread is being created to try to educate SDN users in as non-biased a manner as is possible. To get an idea of where we are let's look back at where we were.
History
Before EMTALA doctors and hospitals had no legal mandate to treat anyone (ethical mandates aside). When patients who had no insurance and no money showed up at a hospital, even if they were very sick and unstable, the hospital could and did call an ambulance to take the patient to a county or charity hospital. Even if a hospital was willing to treat a non-paying patient there was no guarantee that a doctor would be willing to work for free particularly if specialty care was needed. Conversely, if a physician was willing to see a non paying patient the hospital frequently denied the use of its facilities. This resulted in many catastrophic outcomes for patients including some disasters when hospitals transferred women in active labor.
This practice eventually garnered enough publicity and outcry that there was a backlash against the hospitals and physicians. That backlash spurred politicians to pass EMTALA as a part of the 1986 Consolidated Omnibus Budget Reconciliation Act also known as COBRA. EMTALA stopped the most egregious practices in regard to transfer of patients due to financial issues but it has many drawbacks as well. Before we look at EMTALA's strengths and weaknesses let's look at what EMTALA actually says.
EMTALA's Mandate
EMTALA requires that
While that may seem fairly straight forward at first glance this is a dizzyingly complex mandate. The difficulty in determining even the simple definitions of the terms used illustrates the pitfalls of EMTALA. Compounding the problems associated with defining EMTALA terms is the fact that the government has been reluctant to provide comprehensive definitions of its own. That reluctance is due to a desire on the part of the regulatory agencies involved to leave EMTALA as a fluid or living statute that they can redefine as they see fit. They believe, and rightly so, that establishing solid definitions would result in hospitals tailoring their policies to provide the minimum services and no more. From the point of view of a hospital or an Emergency Physician that is a maddening situation as either could be vulnerable in any situation to a change in the regulatory stance. Changes in this stance are dictated by case law. In other words, situations happen and doctors and institutions are either found in violation or not by the investigating bodies. Those findings determine what the rules are going forward. What everyone thought was compliant one day may be found to be in violation the next.
So even though the definitions are tough here is the attempt:
Definitions
Emergency Department
What is an "Emergency Department" as defined by EMTALA? This is important and like all of these definitions it is not as straightforward as one would think. A regular doctor's office has a doctor, a nurse and basic medical equipment. Is that an ER? Can patients present to a doctor's office and demand care without regard to ability to pay? No. What about an "urgent care?" If not then what capability creates the distinction? The definition of an "Emergency Department" used by EMTALA is
"Without regard to ability to pay"
This means that you can not withhold treatments, diagnostics, etc. because a patient can not pay for them. It is permissible to collect insurance and financial information but treatment decisions can not be influenced by that information. It is permissible to bill patients after the fact for care they received. Where institutions get into trouble is when it can be shown that they have been treating their paying patients and non paying patient differently. That will result in a violation.
So it is important to understand that it is not a violation of EMTALA for hospitals to ask patients if they have insurance or if they can pay for services. It is a violation to withhold services based on their answer if they have a medical emergency. EMTALA does not mandate free care. Patients can be billed for services rendered.
Medical Screening Exam
This is probably the biggest problem definition in all of EMTALA. A medical screening exam is assumed to be (remember, definitions are sketchy) an exam by an appropriate provider to determine if an emergent medical condition exists. So who is an "appropriate provider?" A triage nurse? A doctor? A midlevel? The admitting clerk? No one knows for sure and different institutions interpret this in different ways. It is understood that a patient must be evaluated to determine if a medical emergency exists.
If as a result of that medical screening exam it is determined that no medical emergency exists then the EMTALA obligation for that patient has been met. Many institutions (and the number is increasing) then demand payment from these patients before they will render non-emergent care. This practice is called "deferral of care."
This is an SDN thread about "deferral of care."
This is ACEP's position statement on deferral of care (they're against it).
Another facet of the medical screening exam issue is that it does not stop at a physical exam. If a patient requires diagnostics to determine if an emergency exists then the facility is require to provide those diagnostics. For example, if a patient needs a CT scan to determine if they have a surgical emergency the facility must provide it as a part of the medical screening exam.
Stabilizing Care
It is also not enough to just diagnose the problem. EMTALA also requires that the institution provide whatever stabilizing treatment the patient requires within its capabilities. This does not mean just putting on a splint or a bandage. If a patient needs a CABG EMTALA requires that they get it.
Presenting to the ED
Again this seems like it would be straightforward but is very complicated. Obviously if a patient walks in the front door and asks to be treated that's "presenting to the ED." But what if they are in an ambulance? What if they show up in the hospital's main lobby? What if they are in the hospital's parking lot or down the street? Is the ED staff obligated to go get them?
This has been one of the main areas where hospitals have had to change policies to keep up with evolving case law. Those decisions have led us to the current situation where most EMTALA interpreters view "presenting to the ED" to mean an obligation to go get a patient who is anywhere from 100 to 400 yards from either the ED doors or the border of the hospital's property.
Ambulance traffic represents a special area of concern for EMTALA compliance. A hospital that refuses to accept an ambulance may be in violation. One of the Kafkaesque aspects of EMTALA can occur if an ambulance arrives at a hospital with a patient and then leaves to go to another hospital. The original hospital, without any knowledge that the patient or ambulance were ever there could be in violation. This scenario has happened for various reasons such as a patient suddenly makes or changes a destination request or a patient's condition suddenly changes or deteriorates and the crew thinks the patient in their new condition would be better served by another hospital.
Consequences for Violations
Allegations of EMTALA violations are investigated by the federal government's Office of Inspector General (OIG) or its appointees. The OIG often empowers state agencies to investigate allegations. EMTALA complaints can be filed by patients, families, physicians or facilities.
If an institution or physician are found in violation the consequences can be dire. The worst result of an EMTALA violation is the dreaded "death sentence" which is the loss of the ability of the defendant to participate in Medicare or Medicaid programs. Other sanctions that can result include fines of up to $50,000 and for lesser violations requirements that violators change policies and create remediation plans.
One interesting aspect of this is that there is a mandatory reporting requirement for transfers that are the result of a physician's failure to treat a patient. The most common example of this would be when a physician is on call as reflected by the institution's call list. If that physician refuses to see the patient when called or if he just won't respond to calls or pages and the patient has to be transferred the sending institution is required by statute to name that physician on the transfer documents. This is one reason why the call list is very important.
Call lists are required to be kept on file by the intuitions. In the above situation where a physician does not respond the most common response by the offending physician is "I wasn't the one on call." Checking the list will answer that. An institution that doesn't keep good on call records can be in violation just for that.
Higher Levels of Care
While EMTALA was created to keep institutions from transferring patients inappropriately thought was given to the fact that it would be a disaster to eliminate all transfers. Many institutions lack various services and those hospitals must be able to transfer to hospitals with the services a patient needs.
For example if a patient presents to an ED at a hospital and during the course of doing the required medical screening exam a CT scan determines that the patient has a neurosurgical emergency. If that hospital does not have neurosurgery it can contact a hospital that does have that service and request that they accept the patient as a transfer. Since the receiving facility is a higher level of care they are obligated by EMTALA to accept that patient as long as they have capacity (i.e. room for the patient). Refusing a transfer request when you are a higher level of care is a violation.
Does EMTALA Apply to Inpatients?
This is a common scenario. A patient is admitted to a hospital for services the hospital has available. During the course of the admission the patient develops a new condition or a worsening of a previous problem and now requires services that the hospital does not have. Can that patient be transferred to another hospital with the requirement that they accept it because they are a higher level of care? I have to admit I don't know the answer to this. The prevailing opinion seems to be that EMTALA does not apply to inpatients and so no, an EMTALA mandated transfer can not be initiated. However there seems to be some change or at least rethinking on this taking place. This policy actually results in more transfers because hospitals and admitting doctors do not want to "get stuck" with a patient who can't be cared for due to lack of capabilities.
Why is EMTALA controversial?
EMTALA was created to stop the unethical and immoral practice of refusing care to patient with emergent need as well as the more mundane dumping of medically indigent patients. By prohibiting those practices however an entitlement was created to emergency medical care. Patients were guaranteed the professional services of physicians and the resources of hospitals without regard to ability to pay. EMTALA did NOT create funding for those services and resources. EMTALA is an unfunded mandate. For that reason EMTALA is frequently accused of unfairly forcing doctors and hospitals to work for free.
So that's my summary of EMTALA. I'm going to link to this thread in the FAQ. My hope is that this thread will be used for discussions about EMTALA compliance and new information and cases but NOT for discussions about the more controversial aspects of EMTALA's existence. I'm happy to debate those but let's keep this thread for facts and use some of the other threads for opinions.
Footnote 1 - ACEP.org
Footnote 2 - ACEP.org
What follows is my explanation of the basics of EMTALA. Knowing that a lot of folks have better things to do than to slog through this I'm putting some of the useful links at the beginning. Here is the most useful link which is to ACEP's EMTALA FAQ page. It's a good read and I highly recommend it. That said remember that they are not the ultimate authority on EMTALA. That's the government and they don't really accept that role as we'll discuss later. ACEP is helping us out in that they are trying to keep up with what EMTALA has been most recently interpreted to mean by the courts and they are able to devote a lot of resources to this end.
ACEP's EMTALA FAQ
Here are a few links to old SDN threads about EMTALA:
An old thread I started as a resident when I was just becoming aware of EMTALA
EMTALA Scenarios and Discussion
General EMTALA Discussion
Here are some other useful EMTALA links:
AAEM's EMTALA page with lots of good links
Wikipedia's EMTALA page
Wikipedia's COBRA page
Some of the actual legal code (in PDF)
An EMTALA lawyer's site with some good info
So, despite the hubris of thinking I can make some of this even sort of comprehensible, here it is:
EMTALA
The Emergency Medical Treatment and Labor Act or EMTALA is of critical importance to all physicians who practice in a hospital environment and it is of particular concern to Emergency Physicians (EPs). EMTALA, which was enacted in 1986, continues to be controversial. That controversy can be seen in the statute's characterizations by its proponents as the "anti patient dumping law" and by its detractors as "the law that grants free healthcare." We will briefly discuss the controversial aspects at the end but since EMTALA is so important to the daily life and function of EPs this thread is being created to try to educate SDN users in as non-biased a manner as is possible. To get an idea of where we are let's look back at where we were.
History
Before EMTALA doctors and hospitals had no legal mandate to treat anyone (ethical mandates aside). When patients who had no insurance and no money showed up at a hospital, even if they were very sick and unstable, the hospital could and did call an ambulance to take the patient to a county or charity hospital. Even if a hospital was willing to treat a non-paying patient there was no guarantee that a doctor would be willing to work for free particularly if specialty care was needed. Conversely, if a physician was willing to see a non paying patient the hospital frequently denied the use of its facilities. This resulted in many catastrophic outcomes for patients including some disasters when hospitals transferred women in active labor.
This practice eventually garnered enough publicity and outcry that there was a backlash against the hospitals and physicians. That backlash spurred politicians to pass EMTALA as a part of the 1986 Consolidated Omnibus Budget Reconciliation Act also known as COBRA. EMTALA stopped the most egregious practices in regard to transfer of patients due to financial issues but it has many drawbacks as well. Before we look at EMTALA's strengths and weaknesses let's look at what EMTALA actually says.
EMTALA's Mandate
EMTALA requires that
While that may seem fairly straight forward at first glance this is a dizzyingly complex mandate. The difficulty in determining even the simple definitions of the terms used illustrates the pitfalls of EMTALA. Compounding the problems associated with defining EMTALA terms is the fact that the government has been reluctant to provide comprehensive definitions of its own. That reluctance is due to a desire on the part of the regulatory agencies involved to leave EMTALA as a fluid or living statute that they can redefine as they see fit. They believe, and rightly so, that establishing solid definitions would result in hospitals tailoring their policies to provide the minimum services and no more. From the point of view of a hospital or an Emergency Physician that is a maddening situation as either could be vulnerable in any situation to a change in the regulatory stance. Changes in this stance are dictated by case law. In other words, situations happen and doctors and institutions are either found in violation or not by the investigating bodies. Those findings determine what the rules are going forward. What everyone thought was compliant one day may be found to be in violation the next.
So even though the definitions are tough here is the attempt:
Definitions
Emergency Department
What is an "Emergency Department" as defined by EMTALA? This is important and like all of these definitions it is not as straightforward as one would think. A regular doctor's office has a doctor, a nurse and basic medical equipment. Is that an ER? Can patients present to a doctor's office and demand care without regard to ability to pay? No. What about an "urgent care?" If not then what capability creates the distinction? The definition of an "Emergency Department" used by EMTALA is
"Without regard to ability to pay"
This means that you can not withhold treatments, diagnostics, etc. because a patient can not pay for them. It is permissible to collect insurance and financial information but treatment decisions can not be influenced by that information. It is permissible to bill patients after the fact for care they received. Where institutions get into trouble is when it can be shown that they have been treating their paying patients and non paying patient differently. That will result in a violation.
So it is important to understand that it is not a violation of EMTALA for hospitals to ask patients if they have insurance or if they can pay for services. It is a violation to withhold services based on their answer if they have a medical emergency. EMTALA does not mandate free care. Patients can be billed for services rendered.
Medical Screening Exam
This is probably the biggest problem definition in all of EMTALA. A medical screening exam is assumed to be (remember, definitions are sketchy) an exam by an appropriate provider to determine if an emergent medical condition exists. So who is an "appropriate provider?" A triage nurse? A doctor? A midlevel? The admitting clerk? No one knows for sure and different institutions interpret this in different ways. It is understood that a patient must be evaluated to determine if a medical emergency exists.
If as a result of that medical screening exam it is determined that no medical emergency exists then the EMTALA obligation for that patient has been met. Many institutions (and the number is increasing) then demand payment from these patients before they will render non-emergent care. This practice is called "deferral of care."
This is an SDN thread about "deferral of care."
This is ACEP's position statement on deferral of care (they're against it).
Another facet of the medical screening exam issue is that it does not stop at a physical exam. If a patient requires diagnostics to determine if an emergency exists then the facility is require to provide those diagnostics. For example, if a patient needs a CT scan to determine if they have a surgical emergency the facility must provide it as a part of the medical screening exam.
Stabilizing Care
It is also not enough to just diagnose the problem. EMTALA also requires that the institution provide whatever stabilizing treatment the patient requires within its capabilities. This does not mean just putting on a splint or a bandage. If a patient needs a CABG EMTALA requires that they get it.
Presenting to the ED
Again this seems like it would be straightforward but is very complicated. Obviously if a patient walks in the front door and asks to be treated that's "presenting to the ED." But what if they are in an ambulance? What if they show up in the hospital's main lobby? What if they are in the hospital's parking lot or down the street? Is the ED staff obligated to go get them?
This has been one of the main areas where hospitals have had to change policies to keep up with evolving case law. Those decisions have led us to the current situation where most EMTALA interpreters view "presenting to the ED" to mean an obligation to go get a patient who is anywhere from 100 to 400 yards from either the ED doors or the border of the hospital's property.
Ambulance traffic represents a special area of concern for EMTALA compliance. A hospital that refuses to accept an ambulance may be in violation. One of the Kafkaesque aspects of EMTALA can occur if an ambulance arrives at a hospital with a patient and then leaves to go to another hospital. The original hospital, without any knowledge that the patient or ambulance were ever there could be in violation. This scenario has happened for various reasons such as a patient suddenly makes or changes a destination request or a patient's condition suddenly changes or deteriorates and the crew thinks the patient in their new condition would be better served by another hospital.
Consequences for Violations
Allegations of EMTALA violations are investigated by the federal government's Office of Inspector General (OIG) or its appointees. The OIG often empowers state agencies to investigate allegations. EMTALA complaints can be filed by patients, families, physicians or facilities.
If an institution or physician are found in violation the consequences can be dire. The worst result of an EMTALA violation is the dreaded "death sentence" which is the loss of the ability of the defendant to participate in Medicare or Medicaid programs. Other sanctions that can result include fines of up to $50,000 and for lesser violations requirements that violators change policies and create remediation plans.
One interesting aspect of this is that there is a mandatory reporting requirement for transfers that are the result of a physician's failure to treat a patient. The most common example of this would be when a physician is on call as reflected by the institution's call list. If that physician refuses to see the patient when called or if he just won't respond to calls or pages and the patient has to be transferred the sending institution is required by statute to name that physician on the transfer documents. This is one reason why the call list is very important.
Call lists are required to be kept on file by the intuitions. In the above situation where a physician does not respond the most common response by the offending physician is "I wasn't the one on call." Checking the list will answer that. An institution that doesn't keep good on call records can be in violation just for that.
Higher Levels of Care
While EMTALA was created to keep institutions from transferring patients inappropriately thought was given to the fact that it would be a disaster to eliminate all transfers. Many institutions lack various services and those hospitals must be able to transfer to hospitals with the services a patient needs.
For example if a patient presents to an ED at a hospital and during the course of doing the required medical screening exam a CT scan determines that the patient has a neurosurgical emergency. If that hospital does not have neurosurgery it can contact a hospital that does have that service and request that they accept the patient as a transfer. Since the receiving facility is a higher level of care they are obligated by EMTALA to accept that patient as long as they have capacity (i.e. room for the patient). Refusing a transfer request when you are a higher level of care is a violation.
Does EMTALA Apply to Inpatients?
This is a common scenario. A patient is admitted to a hospital for services the hospital has available. During the course of the admission the patient develops a new condition or a worsening of a previous problem and now requires services that the hospital does not have. Can that patient be transferred to another hospital with the requirement that they accept it because they are a higher level of care? I have to admit I don't know the answer to this. The prevailing opinion seems to be that EMTALA does not apply to inpatients and so no, an EMTALA mandated transfer can not be initiated. However there seems to be some change or at least rethinking on this taking place. This policy actually results in more transfers because hospitals and admitting doctors do not want to "get stuck" with a patient who can't be cared for due to lack of capabilities.
Why is EMTALA controversial?
EMTALA was created to stop the unethical and immoral practice of refusing care to patient with emergent need as well as the more mundane dumping of medically indigent patients. By prohibiting those practices however an entitlement was created to emergency medical care. Patients were guaranteed the professional services of physicians and the resources of hospitals without regard to ability to pay. EMTALA did NOT create funding for those services and resources. EMTALA is an unfunded mandate. For that reason EMTALA is frequently accused of unfairly forcing doctors and hospitals to work for free.
So that's my summary of EMTALA. I'm going to link to this thread in the FAQ. My hope is that this thread will be used for discussions about EMTALA compliance and new information and cases but NOT for discussions about the more controversial aspects of EMTALA's existence. I'm happy to debate those but let's keep this thread for facts and use some of the other threads for opinions.
Footnote 1 - ACEP.org
Footnote 2 - ACEP.org
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