Changes necessary to alleviate EMTALA's ills, HHS Office of Inspector General says

New reports detail doctors' and hospitals' troubles complying with a law that was intended to curtail patient dumping but may have mushroomed out of control.

By Jane Cys, amednews staff. Feb. 12, 2001.

Washington -- The Office of Inspector General released two reports in January recommending several steps the Health Care Financing Administration could take to better communicate and enforce the Emergency Medical Treatment and Labor Act.

Both physicians and hospitals cheered a recommendation that HCFA should continue supporting legislation that would force managed care plans to reimburse hospitals for EMTALA-related services to patients, including screening exams that ultimately don't uncover an emergency condition.

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Robert Schafermeyer, MD, American College of Emergency Physicians president, noted that hospitals often must choose between risking nonpayment for a service that hasn't been preapproved by a private insurer or risking an EMTALA violation for seeking preauthorization for that service. This is part of the reason many emergency departments are facing a growing financial crisis, he said.

"Emergency departments provide a valuable community service, and we all will be affected by threats to that service," Dr. Schafermeyer said. "Emergency physicians have signaled a national call to action because of the adverse effects of many factors, including decreased resources, a national nursing shortage and increased closures of hospitals and emergency departments."

The EMTALA recommendations contained in the two OIG reports are based on the findings of a survey of hospital emergency departments, meetings with California emergency physicians and the agency's evaluation of HCFA's enforcement process.

Interpretation goes too far

Congress passed EMTALA in the mid-1980s to address problems of hospitals "dumping" sick, uninsured patients from their emergency departments before providing them with appropriate care. The law requires hospitals to stabilize patients' emergency medical conditions or make appropriate transfers without inquiring about individuals' ability to pay.

The survey found that many ED directors believe EMTALA serves an important role, but that current interpretations and implementation of the law and its accompanying regulations have exceeded the original intent.

"The intent of the law continues to have meaning, and the fact that it carries a big stick with it means it gets attention," said Charlotte Yeh, MD, chair of ACEP's task force on health care and the uninsured. But "I think what's happening is that [EMTALA is] being used to address all the ills within the changing health care system."

Survey respondents echoed these sentiments. They noted, for example, that emergency medicine is becoming overregulated, which may not be in patients' best interests. They also said that EMTALA seems to be used to enforce quality of care instead of addressing patient dumping.

William G. Plested III, MD, an AMA trustee, said the OIG reports will bring EMTALA's problems, including the unforeseen but severe consequences resulting from the law's ever-expanding interpretation, to the attention of government officials and policy-makers.

The AMA and more than 30 medical organizations recently sent a letter to HCFA urging it to hold off issuing new EMTALA regulations because of expectations that they would further expand the scope and breadth of the law beyond the original congressional intent, Dr. Plested added.

"Fortunately, that [regulation has] been put on hold, and we're going to get some sorely needed studies to try to see if a good idea has turned into a nightmare," Dr. Plested said. "There's a lot of suggestion that that might be the case."

HCFA noted in a letter responding to the reports that it agrees with many of OIG's recommendations and that it intends to issue a new regulation to "further clarify EMTALA requirements as they apply to a changing health care delivery system."

The agency also noted that the number of EMTALA complaints hovers between 300 and 500 annually -- a significant drop from the all-time high of 1,800 complaints. The decline, it said, signifies that EMTALA has been successful in ensuring patient access to emergency care.

Future steps

Although some of the recommendations in the report would require legislative action, HCFA could act upon some of the suggestions quickly, said Maureen Mudron, Washington counsel for the American Hospital Assn.

For example, Mudron noted, HCFA can act internally to fulfill the OIG's recommendation that it form an EMTALA technical advisory group. This panel, made up of representatives from several groups, including organized medicine and the AHA, would help the agency resolve any emerging EMTALA implementation issues.

The advisory group also would ensure that HCFA gets "input from those who are directly affected by the law when it develops guidance, including regulations for implementation," Mudron said. "And it would allow for some of the real-world experiences to come into play."

In its report, the OIG also found that HCFA's enforcement of EMTALA is uneven across geographic regions and that the agency should step up its oversight of regional offices to improve consistency. The agency also noted that HCFA should ensure that it obtains peer review of cases involving medical judgment before initiating termination of a hospitals' provider agreement.

"HCFA only adopted that as a general recommendation -- not as a requirement -- so we're pleased with the continued emphasis on making sure you have good, appropriate physician review," Dr. Yeh said.