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Emergency Medical Treatment and Labor Act What Every Physician Should Know About the Federal Antidumping Law David A. Hyman, MD, JD; and David M. Studdert, ScD, LLB
Since 1986, the Emergency Medical Treatment and Labor Act (EMTALA) has imposed an obligation on hospitals and physicians to evaluate and stabilize patients who present to a hospital ED seeking care. Available sanctions for noncompliance include fines, damages awarded in civil litigation, and exclusion from Medicare. EMTALA uses several terms that are familiar to physicians (eg, “emergency medical condition,” “stabilize,” and “transfer”), but the statutory definitions do not map neatly onto the way in which these terms are used and understood in clinical settings. Thus, there is potential for a mismatch between a physician’s on-the-spot professional judgment and what the statute demands. We review what every physician should know about EMTALA and answer six common questions about the law. CHEST 2015; 147(6):1691-1696
CMS 5 Centers for Medicare and Medicaid Services; EMTALA 5 Emergency Medical Treatment and Labor Act; HHS 5 US Department of Health and Human Services; MCO 5 managed care organization; OIG 5 Office of Inspector General; PPACA 5 Patient Protection and Affordable Care Act
ABBREVIATIONS:
A patient shows up at a hospital ED complaining of a serious medical condition. The intake department conducts a “wallet biopsy” and determines that the patient lacks insurance and is unable to pay for treatment. After subjecting the patient to a long wait, followed by a cursory evaluation, the ED “dumps” the patient, either into the street or onto the local county hospital. In 1986, Congress responded to the problem of patient dumping by enacting the Emergency Medical Treatment and Labor Act (EMTALA).1 Before EMTALA, about one-half of the states had laws on the books requiring hospitals to provide emergency
Manuscript received August 19, 2014; revision accepted November 19, 2014. AFFILIATIONS: From the University of Illinois College of Law and College of Medicine (Dr Hyman), Champaign, IL; and the Center for Health Policy (Dr Studdert), Stanford University School of Medicine, and Stanford Law School, Stanford, CA. CORRESPONDENCE TO: David A. Hyman, MD, JD, University of Illinois College of Law, 504 E Pennsylvania Ave, Champaign, IL 61820; e-mail: [email protected]
care, regardless of the patient’s ability to pay. However, state officials typically did little to enforce these laws, and in most states, victims of patient dumping could not bring a lawsuit on their own.2 For hospitals and physicians involved directly or indirectly in the provision of emergency medical services, EMTALA was a major legal development. In this article, we outline the basic structure of EMTALA, address some questions commonly asked by physicians about how the law works, and consider the impact of managed care and federal health reforms on the future of EMTALA.
Reproduction of this article is prohibited without written permission from the American College of Chest Physicians. See online for more details. DOI: 10.1378/chest.14-2046 © 2015 AMERICAN COLLEGE OF CHEST PHYSICIANS.
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Key Provisions and Terms Although EMTALA is often referred to as the “antidumping” statute, its provisions sweep more broadly. EMTALA imposes three distinct duties on hospitals and physicians. First, patients who come to a hospital ED must receive an “appropriate” screening examination to determine whether they have an “emergency medical condition.”3 An emergency medical condition is defined as “manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to” place the health of the individual patient (or an unborn child) “in serious jeopardy.” For a pregnant woman having contractions, the definition is met if there is insufficient time to effect a safe transfer prior to delivery or if the transfer poses a threat to the woman or her fetus. Second, EMTALA requires that a patient with an emergency medical condition be stabilized or transferred to another facility.4 “Stabilized” is defined as sufficient medical treatment “to assure, within reasonable medical probability, that no material deterioration of the condition” is likely to result from transferring the individual. For pregnant women having contractions, it means the delivery of the fetus and placenta. “Transfer” is “the movement (including the discharge) of an individual outside a hospital’s facilities” at the direction of any person employed by or affiliated with the hospital. Individuals who are declared dead in the ED are excluded from this definition, as are those who leave against medical advice. Third, if a decision is made to transfer an unstable patient, certain prescribed conditions must be met for the transfer to be lawful.5 Specifically, unless the patient or the patient’s legal representative requests the transfer in writing, a physician (or “qualified medical person” if no physician is physically present in the ED) must certify that “the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks” associated with the transfer. In addition, the transfer must be “appropriate.” EMTALA lays out the elements that constitute an “appropriate transfer”: the transferring hospital must use whatever capacity it has to provide treatment that minimizes the risks of the transfer; the receiving facility must have space, qualified personnel on hand, and have agreed to accept the transfer; medical records and other relevant clinical information must be forwarded; and the physical transfer must be done using qualified personnel and appropriate equipment.
A number of the terms that are central to defining obligations under EMTALA—including “emergency medical condition,” “stabilization,” and “transfer”—are familiar to physicians. However, it is crucial to recognize that the statutory definitions do not map neatly onto the way in which these terms are used and understood in clinical settings. Further complicating this picture is the fact that medical judgment remains an important reference point in the practice requirements set by EMTALA. Thus, the potential for a mismatch between a physician’s on-the-spot professional judgment and the after-the-fact evaluations called for by EMTALA is an important source of tension in the implementation of the statute.
Penalties, Enforcement, and the Medical Malpractice Distinction If any of these three duties are breached, hospitals and physicians (including physicians who are on call to the ED) face civil monetary penalties of up to $50,000 per violation. Violation may also lead to exclusion from the Medicare program—a financial death sentence for most hospitals. In addition, aggrieved patients may bring private lawsuits against hospitals—but not against physicians. There has been some governmental enforcement of EMTALA. The Office of Inspector General (OIG) and the Centers for Medicare and Medicaid Services (CMS), both part of the federal Department of Health and Human Services (HHS), share responsibility for enforcement. OIG publicly reports details of settlement agreements reached with hospitals and physicians over patient dumping; there have been . 170 since 2002, an average of approximately 13 settlements per year.6 Hospitals account for most of these cases, but cases involving physician-defendants have resulted in civil monetary penalties as high as $35,000. Such fines are usually not covered by medical malpractice insurance. There have been many more private suits. Most of these cases have been brought in federal court and centered on allegations that ED staff failed to conduct an appropriate medical screening examination. Federal courts have sometimes struggled to distinguish these EMTALA-based claims from garden-variety medical malpractice claims. EMTALA explicitly states that it does not preempt state law,7 and courts have repeatedly held that it should not be interpreted as a federal malpractice statute. To be sure, many types of malpractice allegations do not fit within EMTALA. But in some clinical situations, EMTALA’s reliance on terms like
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“appropriate” blurs the line between the standards set by federal law and those set by traditional (state) negligence law. Thus, one federal appellate court held: “a refusal to follow regular screening procedures in a particular instance contravenes the statute, but faulty screening, in a particular case, as opposed to disparate screening or refusing to screen at all, does not contravene the statute.”8 Another federal court drew the distinction this way: “once EMTALA has met that purpose of ensuring a hospital undertakes stabilizing treatment…the patient’s care is then governed not by EMTALA but by the state malpractice law.”9 Stated differently, EMTALA applies when the facts show a failure to screen or stabilize, whereas the quality of care provided in executing those tasks is a matter for state medical malpractice law, to be assessed against professional standards in the usual way. In practice, the distinction can be difficult to draw, but evidence of a systematic practice excluding certain kinds of patients from access to care is a red flag.10 Plaintiffs also fare better when they can show their experience was substantively different from the course of emergency care that other patients usually receive. And providers are more likely to be held to have violated EMTALA if they contravene an express hospital policy or by-law.
Frequently Asked Questions We address six questions that, in our experience, physicians frequently ask about EMTALA. Which Hospitals Are Covered by EMTALA?
EMTALA obligations are triggered when a patient comes to the ED of a “qualifying” hospital and requests medical treatment. A “qualifying” hospital is a hospital that participates in the Medicare program. What Counts as Having an ED?
There was uncertainty about this question following enactment of EMTALA. Aside from some technical changes to EMTALA in 1989,11 Congress has not revisited the Act to amend or clarify ambiguous provisions. HHS, on the other hand, has issued a series of regulations and guidance documents to aid in the interpretation of the statute and resolve simmering uncertainties. The most important of these came from the CMS in 2003. CMS defined a “dedicated emergency department” as one that is either licensed by the state as an ED (regardless of where it is located in relation to the rest of the hospital), held out to the public as an ED, or where at least one-third of outpatient encounters con-
sists of emergent or urgent care obtained without an appointment.12 When Does a Patient Come to the ED?
Does an individual have to physically enter the four walls of an ED to trigger EMTALA, or is arriving at nearby location sufficient? Consider, for example, entry to a different wing of the hospital, a hospital-affiliated building, a medical office building adjoining the main hospital, or an off-campus outpatient clinic? Does being in an ambulance headed for the ED qualify? What about the office of a physician with admitting privileges at a qualifying hospital when that office is geographically separated from the hospital’s premises? EMTALA itself does not explicitly answer these questions; the “right” answer has evolved over time through case law and regulations. Currently, the answer is that an individual “comes to” an ED if they are physically present on hospital property, defined as “the entire main hospital campus…including the parking lot, sidewalk and driveway or hospital departments, including any buildings owned by the hospital that are within 250 yards of the hospital,” and either requests examination or treatment of an emergency medical condition, or would be perceived to be suffering from an emergency medical condition by a prudent layperson.13 Conversely, if an individual is a registered outpatient, and they present on hospital property but not to the ED, there is no obligation to provide a medical screening examination as long as they are already receiving a scheduled course of outpatient care. Thus, barring unusual circumstances, physicians’ offices are generally not covered by EMTALA. On the other hand, all acts of evaluation and treatment by physicians in the ED are clearly covered, regardless of whether the physician is employed or an independent contractor, practices full- or part-time there, or is acting in the capacity of an on-call specialist. Being en route to a hospital in a hospital-owned or -operated ambulance counts as coming to an ED. Does a Patient Have to Be Uninsured for EMTALA to Apply?
EMTALA casts a wide net. Although it was enacted to address the problem of dumping of uninsured patients, it applies to both uninsured and insured patients. Indeed, a provider’s motivation is not relevant14,15; it is no defense to an EMTALA claim to argue that the patient had insurance and there was no financial incentive to dump them. Of course, hospitals may still inquire
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as to a patient’s insurance status, but they may not delay the evaluation and treatment of patients with emergency medical conditions to do so. What Constitutes an “Appropriate Medical Screening Examination”?
EMTALA states that “a hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition…exists.” The term “appropriate” is not defined, and, as noted here, courts have struggled to infer its meaning, including its distinction from the negligence standard that applies in state malpractice claims. (As one court wryly noted, “‘appropriate’ is one of the most wonderful weasel words in the dictionary, and a great aid to the resolution of disputed issues in the drafting of legislation.”16) It is generally accepted that a hospital fulfills its duty to screen under EMTALA if it “provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints. The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.”17 Hence, disparate treatment will not suffice, nor will leaving a patient to sit in the ED waiting room until they become discouraged and leave. When Does the Duty to Stabilize End?
EMTALA is clear that patients with emergency medical conditions must be stabilized before transfer or discharge, but it is silent regarding extenuating circumstances. The contours of this duty were tested in in re Baby K, a controversial case from 1994.18 Baby K was an anencephalic infant who had been admitted multiple times for respiratory distress. The infant’s parents insisted on treatment, invoking the hospital’s obligations under EMTALA’s stabilization requirement. The hospital sought a declaratory judgment regarding its obligation, arguing that the treatment was futile, medically and ethically inappropriate, and inconsistent with its standard approach in such cases. The federal court interpreted EMTALA strictly and rejected the hospital’s argument. It held that Congress “required hospitals and physicians to provide stabilizing care to any individual presenting in an emergency medical condition” and that it was “beyond the limits of our judicial function to address
the moral or ethical propriety of providing emergency stabilizing medical treatment to anencephalic infants” or carve out exceptions to a generally applicable law.18 Although Baby K was widely criticized, the court’s basic approach to EMTALA was consistent with many other cases, holding hospitals and physicians to the strict terms of the statute. Two years later, the same court sought to tone down its very broad interpretation of EMTALA’s stabilization requirement, but its suggestion that Baby K did not “present the issue of the temporal duration of that obligation” only muddied the waters.9 A more prosaic example of the uncertainty regarding the scope of the stabilization requirement of EMTALA is the question of whether the duty ceases (giving way to regular malpractice law) once the patient is admitted to the hospital. The answer is not entirely clear. Some courts have ruled the duty does not extend into inpatient care9,19; others have said that it does.20 CMS sought to dispel the confusion by issuing regulations indicating that an admission satisfies the stabilization requirements of EMTALA, but one federal appellate court has rejected this interpretation.21 A reasonable rule of thumb in the face of this uncertainty is to expect that there is probably minimal exposure to EMTALA liability once the patient is admitted.
The Impact of EMTALA EMTALA critics point out that the law operates as an unfunded mandate and claim it has adversely affected the availability and quality of emergency medical services nationwide.22 The medical profession has criticized EMTALA for contributing to staffing and capacity problems in EDs. One area of particular concern has been the requirement to provide on-call physician coverage. There is a long-standing shortage of physicians willing to provide on-call emergency services, and the American College of Emergency Physicians concluded in 2006 that EMTALA exacerbates this problem.23 Many physicians are now paid for providing on-call coverage, and the HHS OIG has explicitly authorized such payments.24-26 The many supporters of EMTALA, on the other hand, argue that the law has served to largely eliminate patient dumping. They see it as a critical safety net for ensuring uninsured patients get access to care at their time of greatest need. The competing claims about the efficacy of EMTALA have proven difficult to test empirically. There is widespread evidence of overcrowding and budgetary stress in EDs. It is also clear that hundreds of trauma centers have
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closed over the last 20 years. But the uncompensated and timely care that EMTALA has induced also has value. Tallying these costs and benefits is challenging and calls for some heroic assumptions.27 Isolating empirically the role of EMTALA in causing various undesirable developments in emergency medical services is also very challenging, given the wide array of influences at work.
EMTALA in a Changing Health Care Delivery Landscape Two of the most important changes in health policy over the last 25 years are the growth of managed care and the reforms introduced by the Patient Protection and Affordable Care Act (PPACA). How have they affected the operation of EMTALA? EMTALA was based on the assumption that hospitals were not eager to treat uninsured patients but sought insured patients because those patients (or their insurers) would pay for the services provided. The rise of managed care, along with preapproval provisions for visits to the ED, made these payments less certain and inserted another decision maker into the process. Under EMTALA, hospitals are required to conduct an appropriate medical screening examination and provide stabilizing treatment, regardless of whether they will be paid and regardless of whether the patient’s insurance company has determined that the clinical need is not emergent.28 The same applies to physicians who are on call to the ED. A number of states have responded to this dynamic by requiring managed care organizations (MCOs) to adhere to a “prudent layperson” standard for coverage of emergency care. PPACA subsequently made this prudent layperson standard applicable in all states.29 The prudent layperson “fix” does not change the duties imposed by EMTALA, but it reduces the potential for misalignment between EMTALA and insurance coverage, by reducing uncertainty about whether insurers will pay for the services that hospitals must provide pursuant to EMTALA. Can MCOs themselves be held liable under EMTALA for their part in impeding access to emergency care? Two lower courts have rejected such claims,30,31 and to the best of our knowledge, OIG has never pursued an enforcement action against an MCO. Finally, PPACA explicitly preserves EMTALA: It includes a provision stating that it does not “relieve any health care provider from providing emergency services as required by State or Federal law,” and EMTALA is
explicitly named.32 A principal aim of the federal health reforms is to produce a large and enduring reduction in the number of uninsured patients. To the extent PPACA is successful in achieving this aim, will the need for EMTALA decline? The financing of PPACA certainly reflects this expectation. Hospitals rely on so-called “disproportionate share” payments under Medicare to support the costs of providing care to indigent patients. PPACA includes a schedule of reductions in these payment levels over time, premised on the logic of a declining number of uninsured patients. However, there are at least two reasons to expect that uninsured patients will continue to turn to EDs for care. First, the PPACA insurance provisions apply only to US citizens and legal immigrants,33 whereas EMTALA’s mandate applies to anyone who presents at a qualifying hospital ED. Second, no one expects that the PPACA will result in universal insurance coverage. Millions will remain uninsured,34 and many of them will no doubt continue to seek care in EDs. The confluence of the factors—the continuation of EMTALA’s mandate, residual uninsured, and reductions in the disproportionate share payments—has led some commentators to suggest that the reforms introduced by PPACA will do little to relieve stress on the safety net.35 The health-care delivery environment continues to change at a rapid pace, spurred in part by PPACA. Mergers and new institutional forms, such as accountable care organizations, are altering health-care markets and bringing physician groups and hospitals closer together. In pursuit of lower costs and higher quality, many of these new institutional forms are seeking to remake the way care decisions are made. These shifts may serve to smooth EMTALA compliance by bringing the responsibilities of payers, hospitals, and physicians into closer alignment. Or, they may create new tensions and controversies. It is too soon to make predictions about such matters, let alone have any confidence in such predictions.
Conclusions EMTALA has been a divisive law since its enactment nearly 30 years ago. In some quarters, it is lionized. As one commentator recently wrote, “some laws…transcend their immediate purpose and reflect deeply held social values and beliefs. [EMTALA] is one such law.... [It] remains a sweeping testament to the fundamental proposition that in the wealthiest nation on Earth, no person should be denied emergency medical care.”36 Other commentators have been far less impressed. One of us wrote more than 15 years ago: “EMTALA’s flaws
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far exceed its limited virtues. The statute is sloppily drafted, and the most important words are undefined or defined far too broadly. The premise of the statute is silly at best; one cannot impose open-ended obligations of this sort on private parties and expect them to meekly comply—and the inevitable adaptive responses make everyone worse off.”37 Whether one subscribes to one of these competing views or has another view on the law’s premise and value, the fact remains that EMTALA is an important piece of health-care regulation, especially for physicians involved in the delivery of emergency medical services. Private EMTALA litigation is robust, and that is unlikely to change anytime soon. Ignorance of the duties the statute creates is no defense. For all these reasons, physicians should develop a working knowledge of the legal obligations EMTALA imposes on them and on the hospitals in which they practice.
Acknowledgments Financial/nonfinancial disclosures: The authors have reported to CHEST that no potential conflicts of interest exist with any companies/ organizations whose products or services may be discussed in this article.
References 1. 42 USC §§1395dd et seq. 2. Rothenberg KH. Who cares? The evolution of the legal duty to provide emergency care. Houst Law Rev. 1989;26(1):21-76. 3. 42 USC §1395dd(a). 4. 42 USC §1395dd(b). 5. 42 USC §1395dd(c). 6. Office of Inspector General, US Department of Health and Human Services. Patient dumping. Office of Inspector General website. https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp. Accessed January 20, 2015. 7. 42 USC §1395dd(f). 8. Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995). 9. Bryan v. Rectors and Visitors of the University of Virginia, 95 F.3d 349 (4th Cir. 1996). 10. Owens v. Nacogdoches County Hosp. Dist., 741 F. Supp. 1269 (E.D. Tex. 1990) 11. Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239 §6211, 103 Stat. 2154 (Dec. 19, 1989) 12. 42 CFR §489.24.
13. CMS Manual System. Pub. 100-07, State Operations Provider Certification, Transmittal 46, Interpretive Guidelines for §489.24(a)(1)(i) May 29, 2009. http://www.cms.gov/Regulationsand- Guidance/Guidance/Transmittals/downloads/R46SOMA.pdf. Accessed January 20, 2015. 14. Roberts v. Galen of Virginia, 525 US 249 (1999). 15. Martin v. Ohio County Hospital Corp, 295 S.W.3d 104 (Ky 2009). 16. Cleland v. Bronson, 917 F. 2d 266 (6th Cir. 1990). 17. Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995). 18. In re Baby K, 16 F.3d 590 (4th Cir. 1994). 19. Bryant v. Adventist Health System/West, 289 F.3d 1162 (9th Cir. 2002). 20. Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990). 21. Moses v. Providence Hospital and Medical Center, 561 F.3d 573 (6th Cir. 2009). 22. Epstein RA. Mortal Peril: Our Inalienable Right to Health Care? New York, NY: Basic Books; 2000. 23. American College of Emergency Physicians. On-call specialist coverage in US emergency departments. 2006. http://www.acep. org/Content.aspx?id=36752. Accessed January 20, 2015. 24. Advisory Opinion OIG. 012-15. 2013. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2012/AdvOpn12-15-mod.pdf. Accessed January 20, 2015. 25. Advisory Opinion OIG. 09-05. 2009. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2009/AdvOpn09-05.pdf. Accessed January 20, 2015. 26. Advisory Opinion OIG. 07-10. 2007. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2007/AdvOpn07-10A.pdf. Accessed January 20, 2015. 27. Conover CJ, Zeitler E. Costs and benefits of EMTALA. Duke University, 2006. https://fds.duke.edu/db/attachment/1366. Accessed January 20, 2015. 28. 59 Fed. Reg. 32, 116 (June 22, 1994); 64 Fed. Reg. at 61, 356. 29. 29 CFR 2590.715-2719A. 30. Colon-Ramos v. Clinica Santa Rosa, Inc., 938 F. Supp. 2d 222 (D.P.R. 2013). 31. Dearmas v. Av-Med Inc, 814 F. Supp. 1103 (S.D. Fla. 1993). 32. §1303c. 33. §1501(d)(3). 34. Buettgens M, Hall MA. Who will be uninsured after health insurance reform? Robert Wood Johnson Foundation report. March 2011. http://www.rwjf.org/content/dam/farm/reports/issue_ briefs/2011/rwjf69624. Accessed January 20, 2015. 35. Vickery KD, Sauser K, Davis MM. Policy responses to demand for health care access: from the individual to the population. JAMA. 2013;309(7):665-666. 36. Rosenbaum S. The enduring role of the Emergency Medical Treatment and Active Labor Act. Health Aff (Millwood). 2013; 32(12):2075-2081. 37. Hyman DA. Patient dumping and EMTALA: past imperfect/future shock. Health Matrix Clevel. 1998;8(1):29-56.
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Medical Ethics
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Emergency Medical Treatment and Labor Act What Every Physician Should Know About the Federal Antidumping Law David A. Hyman, MD, JD; and David M. Studdert, ScD, LLB
Since 1986, the Emergency Medical Treatment and Labor Act (EMTALA) has imposed an obligation on hospitals and physicians to evaluate and stabilize patients who present to a hospital ED seeking care. Available sanctions for noncompliance include fines, damages awarded in civil litigation, and exclusion from Medicare. EMTALA uses several terms that are familiar to physicians (eg, “emergency medical condition,” “stabilize,” and “transfer”), but the statutory definitions do not map neatly onto the way in which these terms are used and understood in clinical settings. Thus, there is potential for a mismatch between a physician’s on-the-spot professional judgment and what the statute demands. We review what every physician should know about EMTALA and answer six common questions about the law. CHEST 2015; 147(6):1691-1696
CMS 5 Centers for Medicare and Medicaid Services; EMTALA 5 Emergency Medical Treatment and Labor Act; HHS 5 US Department of Health and Human Services; MCO 5 managed care organization; OIG 5 Office of Inspector General; PPACA 5 Patient Protection and Affordable Care Act
ABBREVIATIONS:
A patient shows up at a hospital ED complaining of a serious medical condition. The intake department conducts a “wallet biopsy” and determines that the patient lacks insurance and is unable to pay for treatment. After subjecting the patient to a long wait, followed by a cursory evaluation, the ED “dumps” the patient, either into the street or onto the local county hospital. In 1986, Congress responded to the problem of patient dumping by enacting the Emergency Medical Treatment and Labor Act (EMTALA).1 Before EMTALA, about one-half of the states had laws on the books requiring hospitals to provide emergency
Manuscript received August 19, 2014; revision accepted November 19, 2014. AFFILIATIONS: From the University of Illinois College of Law and College of Medicine (Dr Hyman), Champaign, IL; and the Center for Health Policy (Dr Studdert), Stanford University School of Medicine, and Stanford Law School, Stanford, CA. CORRESPONDENCE TO: David A. Hyman, MD, JD, University of Illinois College of Law, 504 E Pennsylvania Ave, Champaign, IL 61820; e-mail: [email protected]
care, regardless of the patient’s ability to pay. However, state officials typically did little to enforce these laws, and in most states, victims of patient dumping could not bring a lawsuit on their own.2 For hospitals and physicians involved directly or indirectly in the provision of emergency medical services, EMTALA was a major legal development. In this article, we outline the basic structure of EMTALA, address some questions commonly asked by physicians about how the law works, and consider the impact of managed care and federal health reforms on the future of EMTALA.
Reproduction of this article is prohibited without written permission from the American College of Chest Physicians. See online for more details. DOI: 10.1378/chest.14-2046 © 2015 AMERICAN COLLEGE OF CHEST PHYSICIANS.
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Key Provisions and Terms Although EMTALA is often referred to as the “antidumping” statute, its provisions sweep more broadly. EMTALA imposes three distinct duties on hospitals and physicians. First, patients who come to a hospital ED must receive an “appropriate” screening examination to determine whether they have an “emergency medical condition.”3 An emergency medical condition is defined as “manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to” place the health of the individual patient (or an unborn child) “in serious jeopardy.” For a pregnant woman having contractions, the definition is met if there is insufficient time to effect a safe transfer prior to delivery or if the transfer poses a threat to the woman or her fetus. Second, EMTALA requires that a patient with an emergency medical condition be stabilized or transferred to another facility.4 “Stabilized” is defined as sufficient medical treatment “to assure, within reasonable medical probability, that no material deterioration of the condition” is likely to result from transferring the individual. For pregnant women having contractions, it means the delivery of the fetus and placenta. “Transfer” is “the movement (including the discharge) of an individual outside a hospital’s facilities” at the direction of any person employed by or affiliated with the hospital. Individuals who are declared dead in the ED are excluded from this definition, as are those who leave against medical advice. Third, if a decision is made to transfer an unstable patient, certain prescribed conditions must be met for the transfer to be lawful.5 Specifically, unless the patient or the patient’s legal representative requests the transfer in writing, a physician (or “qualified medical person” if no physician is physically present in the ED) must certify that “the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks” associated with the transfer. In addition, the transfer must be “appropriate.” EMTALA lays out the elements that constitute an “appropriate transfer”: the transferring hospital must use whatever capacity it has to provide treatment that minimizes the risks of the transfer; the receiving facility must have space, qualified personnel on hand, and have agreed to accept the transfer; medical records and other relevant clinical information must be forwarded; and the physical transfer must be done using qualified personnel and appropriate equipment.
A number of the terms that are central to defining obligations under EMTALA—including “emergency medical condition,” “stabilization,” and “transfer”—are familiar to physicians. However, it is crucial to recognize that the statutory definitions do not map neatly onto the way in which these terms are used and understood in clinical settings. Further complicating this picture is the fact that medical judgment remains an important reference point in the practice requirements set by EMTALA. Thus, the potential for a mismatch between a physician’s on-the-spot professional judgment and the after-the-fact evaluations called for by EMTALA is an important source of tension in the implementation of the statute.
Penalties, Enforcement, and the Medical Malpractice Distinction If any of these three duties are breached, hospitals and physicians (including physicians who are on call to the ED) face civil monetary penalties of up to $50,000 per violation. Violation may also lead to exclusion from the Medicare program—a financial death sentence for most hospitals. In addition, aggrieved patients may bring private lawsuits against hospitals—but not against physicians. There has been some governmental enforcement of EMTALA. The Office of Inspector General (OIG) and the Centers for Medicare and Medicaid Services (CMS), both part of the federal Department of Health and Human Services (HHS), share responsibility for enforcement. OIG publicly reports details of settlement agreements reached with hospitals and physicians over patient dumping; there have been . 170 since 2002, an average of approximately 13 settlements per year.6 Hospitals account for most of these cases, but cases involving physician-defendants have resulted in civil monetary penalties as high as $35,000. Such fines are usually not covered by medical malpractice insurance. There have been many more private suits. Most of these cases have been brought in federal court and centered on allegations that ED staff failed to conduct an appropriate medical screening examination. Federal courts have sometimes struggled to distinguish these EMTALA-based claims from garden-variety medical malpractice claims. EMTALA explicitly states that it does not preempt state law,7 and courts have repeatedly held that it should not be interpreted as a federal malpractice statute. To be sure, many types of malpractice allegations do not fit within EMTALA. But in some clinical situations, EMTALA’s reliance on terms like
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“appropriate” blurs the line between the standards set by federal law and those set by traditional (state) negligence law. Thus, one federal appellate court held: “a refusal to follow regular screening procedures in a particular instance contravenes the statute, but faulty screening, in a particular case, as opposed to disparate screening or refusing to screen at all, does not contravene the statute.”8 Another federal court drew the distinction this way: “once EMTALA has met that purpose of ensuring a hospital undertakes stabilizing treatment…the patient’s care is then governed not by EMTALA but by the state malpractice law.”9 Stated differently, EMTALA applies when the facts show a failure to screen or stabilize, whereas the quality of care provided in executing those tasks is a matter for state medical malpractice law, to be assessed against professional standards in the usual way. In practice, the distinction can be difficult to draw, but evidence of a systematic practice excluding certain kinds of patients from access to care is a red flag.10 Plaintiffs also fare better when they can show their experience was substantively different from the course of emergency care that other patients usually receive. And providers are more likely to be held to have violated EMTALA if they contravene an express hospital policy or by-law.
Frequently Asked Questions We address six questions that, in our experience, physicians frequently ask about EMTALA. Which Hospitals Are Covered by EMTALA?
EMTALA obligations are triggered when a patient comes to the ED of a “qualifying” hospital and requests medical treatment. A “qualifying” hospital is a hospital that participates in the Medicare program. What Counts as Having an ED?
There was uncertainty about this question following enactment of EMTALA. Aside from some technical changes to EMTALA in 1989,11 Congress has not revisited the Act to amend or clarify ambiguous provisions. HHS, on the other hand, has issued a series of regulations and guidance documents to aid in the interpretation of the statute and resolve simmering uncertainties. The most important of these came from the CMS in 2003. CMS defined a “dedicated emergency department” as one that is either licensed by the state as an ED (regardless of where it is located in relation to the rest of the hospital), held out to the public as an ED, or where at least one-third of outpatient encounters con-
sists of emergent or urgent care obtained without an appointment.12 When Does a Patient Come to the ED?
Does an individual have to physically enter the four walls of an ED to trigger EMTALA, or is arriving at nearby location sufficient? Consider, for example, entry to a different wing of the hospital, a hospital-affiliated building, a medical office building adjoining the main hospital, or an off-campus outpatient clinic? Does being in an ambulance headed for the ED qualify? What about the office of a physician with admitting privileges at a qualifying hospital when that office is geographically separated from the hospital’s premises? EMTALA itself does not explicitly answer these questions; the “right” answer has evolved over time through case law and regulations. Currently, the answer is that an individual “comes to” an ED if they are physically present on hospital property, defined as “the entire main hospital campus…including the parking lot, sidewalk and driveway or hospital departments, including any buildings owned by the hospital that are within 250 yards of the hospital,” and either requests examination or treatment of an emergency medical condition, or would be perceived to be suffering from an emergency medical condition by a prudent layperson.13 Conversely, if an individual is a registered outpatient, and they present on hospital property but not to the ED, there is no obligation to provide a medical screening examination as long as they are already receiving a scheduled course of outpatient care. Thus, barring unusual circumstances, physicians’ offices are generally not covered by EMTALA. On the other hand, all acts of evaluation and treatment by physicians in the ED are clearly covered, regardless of whether the physician is employed or an independent contractor, practices full- or part-time there, or is acting in the capacity of an on-call specialist. Being en route to a hospital in a hospital-owned or -operated ambulance counts as coming to an ED. Does a Patient Have to Be Uninsured for EMTALA to Apply?
EMTALA casts a wide net. Although it was enacted to address the problem of dumping of uninsured patients, it applies to both uninsured and insured patients. Indeed, a provider’s motivation is not relevant14,15; it is no defense to an EMTALA claim to argue that the patient had insurance and there was no financial incentive to dump them. Of course, hospitals may still inquire
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as to a patient’s insurance status, but they may not delay the evaluation and treatment of patients with emergency medical conditions to do so. What Constitutes an “Appropriate Medical Screening Examination”?
EMTALA states that “a hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition…exists.” The term “appropriate” is not defined, and, as noted here, courts have struggled to infer its meaning, including its distinction from the negligence standard that applies in state malpractice claims. (As one court wryly noted, “‘appropriate’ is one of the most wonderful weasel words in the dictionary, and a great aid to the resolution of disputed issues in the drafting of legislation.”16) It is generally accepted that a hospital fulfills its duty to screen under EMTALA if it “provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints. The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.”17 Hence, disparate treatment will not suffice, nor will leaving a patient to sit in the ED waiting room until they become discouraged and leave. When Does the Duty to Stabilize End?
EMTALA is clear that patients with emergency medical conditions must be stabilized before transfer or discharge, but it is silent regarding extenuating circumstances. The contours of this duty were tested in in re Baby K, a controversial case from 1994.18 Baby K was an anencephalic infant who had been admitted multiple times for respiratory distress. The infant’s parents insisted on treatment, invoking the hospital’s obligations under EMTALA’s stabilization requirement. The hospital sought a declaratory judgment regarding its obligation, arguing that the treatment was futile, medically and ethically inappropriate, and inconsistent with its standard approach in such cases. The federal court interpreted EMTALA strictly and rejected the hospital’s argument. It held that Congress “required hospitals and physicians to provide stabilizing care to any individual presenting in an emergency medical condition” and that it was “beyond the limits of our judicial function to address
the moral or ethical propriety of providing emergency stabilizing medical treatment to anencephalic infants” or carve out exceptions to a generally applicable law.18 Although Baby K was widely criticized, the court’s basic approach to EMTALA was consistent with many other cases, holding hospitals and physicians to the strict terms of the statute. Two years later, the same court sought to tone down its very broad interpretation of EMTALA’s stabilization requirement, but its suggestion that Baby K did not “present the issue of the temporal duration of that obligation” only muddied the waters.9 A more prosaic example of the uncertainty regarding the scope of the stabilization requirement of EMTALA is the question of whether the duty ceases (giving way to regular malpractice law) once the patient is admitted to the hospital. The answer is not entirely clear. Some courts have ruled the duty does not extend into inpatient care9,19; others have said that it does.20 CMS sought to dispel the confusion by issuing regulations indicating that an admission satisfies the stabilization requirements of EMTALA, but one federal appellate court has rejected this interpretation.21 A reasonable rule of thumb in the face of this uncertainty is to expect that there is probably minimal exposure to EMTALA liability once the patient is admitted.
The Impact of EMTALA EMTALA critics point out that the law operates as an unfunded mandate and claim it has adversely affected the availability and quality of emergency medical services nationwide.22 The medical profession has criticized EMTALA for contributing to staffing and capacity problems in EDs. One area of particular concern has been the requirement to provide on-call physician coverage. There is a long-standing shortage of physicians willing to provide on-call emergency services, and the American College of Emergency Physicians concluded in 2006 that EMTALA exacerbates this problem.23 Many physicians are now paid for providing on-call coverage, and the HHS OIG has explicitly authorized such payments.24-26 The many supporters of EMTALA, on the other hand, argue that the law has served to largely eliminate patient dumping. They see it as a critical safety net for ensuring uninsured patients get access to care at their time of greatest need. The competing claims about the efficacy of EMTALA have proven difficult to test empirically. There is widespread evidence of overcrowding and budgetary stress in EDs. It is also clear that hundreds of trauma centers have
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closed over the last 20 years. But the uncompensated and timely care that EMTALA has induced also has value. Tallying these costs and benefits is challenging and calls for some heroic assumptions.27 Isolating empirically the role of EMTALA in causing various undesirable developments in emergency medical services is also very challenging, given the wide array of influences at work.
EMTALA in a Changing Health Care Delivery Landscape Two of the most important changes in health policy over the last 25 years are the growth of managed care and the reforms introduced by the Patient Protection and Affordable Care Act (PPACA). How have they affected the operation of EMTALA? EMTALA was based on the assumption that hospitals were not eager to treat uninsured patients but sought insured patients because those patients (or their insurers) would pay for the services provided. The rise of managed care, along with preapproval provisions for visits to the ED, made these payments less certain and inserted another decision maker into the process. Under EMTALA, hospitals are required to conduct an appropriate medical screening examination and provide stabilizing treatment, regardless of whether they will be paid and regardless of whether the patient’s insurance company has determined that the clinical need is not emergent.28 The same applies to physicians who are on call to the ED. A number of states have responded to this dynamic by requiring managed care organizations (MCOs) to adhere to a “prudent layperson” standard for coverage of emergency care. PPACA subsequently made this prudent layperson standard applicable in all states.29 The prudent layperson “fix” does not change the duties imposed by EMTALA, but it reduces the potential for misalignment between EMTALA and insurance coverage, by reducing uncertainty about whether insurers will pay for the services that hospitals must provide pursuant to EMTALA. Can MCOs themselves be held liable under EMTALA for their part in impeding access to emergency care? Two lower courts have rejected such claims,30,31 and to the best of our knowledge, OIG has never pursued an enforcement action against an MCO. Finally, PPACA explicitly preserves EMTALA: It includes a provision stating that it does not “relieve any health care provider from providing emergency services as required by State or Federal law,” and EMTALA is
explicitly named.32 A principal aim of the federal health reforms is to produce a large and enduring reduction in the number of uninsured patients. To the extent PPACA is successful in achieving this aim, will the need for EMTALA decline? The financing of PPACA certainly reflects this expectation. Hospitals rely on so-called “disproportionate share” payments under Medicare to support the costs of providing care to indigent patients. PPACA includes a schedule of reductions in these payment levels over time, premised on the logic of a declining number of uninsured patients. However, there are at least two reasons to expect that uninsured patients will continue to turn to EDs for care. First, the PPACA insurance provisions apply only to US citizens and legal immigrants,33 whereas EMTALA’s mandate applies to anyone who presents at a qualifying hospital ED. Second, no one expects that the PPACA will result in universal insurance coverage. Millions will remain uninsured,34 and many of them will no doubt continue to seek care in EDs. The confluence of the factors—the continuation of EMTALA’s mandate, residual uninsured, and reductions in the disproportionate share payments—has led some commentators to suggest that the reforms introduced by PPACA will do little to relieve stress on the safety net.35 The health-care delivery environment continues to change at a rapid pace, spurred in part by PPACA. Mergers and new institutional forms, such as accountable care organizations, are altering health-care markets and bringing physician groups and hospitals closer together. In pursuit of lower costs and higher quality, many of these new institutional forms are seeking to remake the way care decisions are made. These shifts may serve to smooth EMTALA compliance by bringing the responsibilities of payers, hospitals, and physicians into closer alignment. Or, they may create new tensions and controversies. It is too soon to make predictions about such matters, let alone have any confidence in such predictions.
Conclusions EMTALA has been a divisive law since its enactment nearly 30 years ago. In some quarters, it is lionized. As one commentator recently wrote, “some laws…transcend their immediate purpose and reflect deeply held social values and beliefs. [EMTALA] is one such law.... [It] remains a sweeping testament to the fundamental proposition that in the wealthiest nation on Earth, no person should be denied emergency medical care.”36 Other commentators have been far less impressed. One of us wrote more than 15 years ago: “EMTALA’s flaws
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far exceed its limited virtues. The statute is sloppily drafted, and the most important words are undefined or defined far too broadly. The premise of the statute is silly at best; one cannot impose open-ended obligations of this sort on private parties and expect them to meekly comply—and the inevitable adaptive responses make everyone worse off.”37 Whether one subscribes to one of these competing views or has another view on the law’s premise and value, the fact remains that EMTALA is an important piece of health-care regulation, especially for physicians involved in the delivery of emergency medical services. Private EMTALA litigation is robust, and that is unlikely to change anytime soon. Ignorance of the duties the statute creates is no defense. For all these reasons, physicians should develop a working knowledge of the legal obligations EMTALA imposes on them and on the hospitals in which they practice.
Acknowledgments Financial/nonfinancial disclosures: The authors have reported to CHEST that no potential conflicts of interest exist with any companies/ organizations whose products or services may be discussed in this article.
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13. CMS Manual System. Pub. 100-07, State Operations Provider Certification, Transmittal 46, Interpretive Guidelines for §489.24(a)(1)(i) May 29, 2009. http://www.cms.gov/Regulationsand- Guidance/Guidance/Transmittals/downloads/R46SOMA.pdf. Accessed January 20, 2015. 14. Roberts v. Galen of Virginia, 525 US 249 (1999). 15. Martin v. Ohio County Hospital Corp, 295 S.W.3d 104 (Ky 2009). 16. Cleland v. Bronson, 917 F. 2d 266 (6th Cir. 1990). 17. Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995). 18. In re Baby K, 16 F.3d 590 (4th Cir. 1994). 19. Bryant v. Adventist Health System/West, 289 F.3d 1162 (9th Cir. 2002). 20. Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990). 21. Moses v. Providence Hospital and Medical Center, 561 F.3d 573 (6th Cir. 2009). 22. Epstein RA. Mortal Peril: Our Inalienable Right to Health Care? New York, NY: Basic Books; 2000. 23. American College of Emergency Physicians. On-call specialist coverage in US emergency departments. 2006. http://www.acep. org/Content.aspx?id=36752. Accessed January 20, 2015. 24. Advisory Opinion OIG. 012-15. 2013. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2012/AdvOpn12-15-mod.pdf. Accessed January 20, 2015. 25. Advisory Opinion OIG. 09-05. 2009. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2009/AdvOpn09-05.pdf. Accessed January 20, 2015. 26. Advisory Opinion OIG. 07-10. 2007. https://oig.hhs.gov/fraud/ docs/advisoryopinions/2007/AdvOpn07-10A.pdf. Accessed January 20, 2015. 27. Conover CJ, Zeitler E. Costs and benefits of EMTALA. Duke University, 2006. https://fds.duke.edu/db/attachment/1366. Accessed January 20, 2015. 28. 59 Fed. Reg. 32, 116 (June 22, 1994); 64 Fed. Reg. at 61, 356. 29. 29 CFR 2590.715-2719A. 30. Colon-Ramos v. Clinica Santa Rosa, Inc., 938 F. Supp. 2d 222 (D.P.R. 2013). 31. Dearmas v. Av-Med Inc, 814 F. Supp. 1103 (S.D. Fla. 1993). 32. §1303c. 33. §1501(d)(3). 34. Buettgens M, Hall MA. Who will be uninsured after health insurance reform? Robert Wood Johnson Foundation report. March 2011. http://www.rwjf.org/content/dam/farm/reports/issue_ briefs/2011/rwjf69624. Accessed January 20, 2015. 35. Vickery KD, Sauser K, Davis MM. Policy responses to demand for health care access: from the individual to the population. JAMA. 2013;309(7):665-666. 36. Rosenbaum S. The enduring role of the Emergency Medical Treatment and Active Labor Act. Health Aff (Millwood). 2013; 32(12):2075-2081. 37. Hyman DA. Patient dumping and EMTALA: past imperfect/future shock. Health Matrix Clevel. 1998;8(1):29-56.
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