Complying with the Emergency Medical Treatment and Labor Act (EMTALA): Challenges and solutions

The Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicare‐participating hospitals to provide emergency care to patients regardless of their ability to pay, plays an important role in protecting the uninsured. Yet many hospitals do not comply. This study examines the reasons for noncompliance and proposes solutions. We conducted 11 semistructured key informant interviews with hospitals, hospital associations, and patient safety organizations in the Centers for Medicare and Medicaid Services region with the highest number of EMTALA complaints filed. Respondents identified 5 main causes of noncompliance: financial incentives to avoid unprofitable patients, ignorance of EMTALA's requirements, high referral burden at hospitals receiving EMTALA transfer patients, reluctance to jeopardize relationships with transfer partners by reporting borderline EMTALA violations, and opposing priorities of hospitals and physicians. Respondents suggested 5 methods to improve compliance, including educating subspecialists about EMTALA, informally educating hospitals about borderline violations, and incorporating EMTALA‐compliant processes into hospital operations such as by routing transfer requests through the emergency department. To improve compliance we suggest (1) more closely aligning Medicaid/Medicare payment policies with EMTALA, ( 2) amending the Act to permit informal mediation between hospitals about borderline violations, (3) increasing the hospital's role in ensuring EMTALA compliance, and (4) expanding the role of hospital associations.     

Summary of final changes to EMTALA regulations

The Emergency Medical Treatment and Labor Act (EMTALA) was enacted in 1986. Its purpose was to ensure that all individuals receive necessary emergency services from hospitals and not be denied care (i.e., "patient dumping") because of their economic status or lack of insurance. In its application, EMTALA has reduced "patient dumping," but at great cost to hospitals and physicians as an unfunded mandate. Despite 17 years of experience with the law, providers have been uncertain as to where and when, and to whom, the EMTALA obligations apply. The law has also proven to be burdensome and has been interpreted as extending far beyond the hospital emergency room. After reviewing the law for some time, the Centers for Medicare and Medicaid Services (CMS) released its final rules redefining the scope of EMTALA, reaffirming certain guidelines and modifying or clarifying others. The new regulations attempt to restate the parameters of the law as it applies to the emergency department and the hospital, as well as to inpatients and outpatients. The new rules clarify on-call obligations for physicians, confirming guidance issued by CMS in June 2002. This article summarizes the salient features of these new regulations.     

Learning the developments in EMTALA jurisprudence through the lens of John West's “case law update”

This article covers three recurring issues concerning the federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) that keep popping up in John West's Case Law Update case updates, and consistently bedevil hospital risk managers. First, what exactly constitutes an “appropriate” medical screening examination; second, when is a patient actually “stabilized’ under EMTALA; and third, does the EMTALA obligation really “disappear” when a patient is admitted to the hospital? The editors wanted to analyze topics that challenge the courts to “get it right” on the law and that drive risk managers crazy. EMTALA is the “poster child” for such a topic.     

A rural crossroad

The critical access hospital program is one of the few positive things for hospitals to come out of the 1997 Balanced Budget Act. It has meant salvation for the nearly 1,200 hospitals that have received the designation, and enables them to invest in facility upgrades, new equipment and additional staff. But a revamped Medicare managed care initiative threatens their payments and the Centers for Medicare & Medicaid Services and the Medicare Payment Advisory Program are taking a hard look at the program's costs. Some observers fear changes could be proposed that would weaken the CAH program.     

Patient wins skirmish against hospital for forced HIV test

A gay man who was forced to submit to an HIV test before doctors would perform an emergency appendectomy survived a motion by the defendants for dismissal. The plaintiff is suing the physicians, hospital, and nurse for violations of the Federal Emergency Medical Treatment and Active Labor Act (EMTALA), which bars "patient dumping" in emergency rooms. The plaintiff went to the Overland Park Regional Medical Center in Kansas because he had pain in his lower right abdomen. The defendants believed EMTALA was designed to prevent delays in treatment related to a patient's ability to pay. However, the judge ruled the plaintiff was seeking relief under a different section of the provision that prevents emergency rooms from engaging in disparate medical screening procedures. The nurse and the hospital escaped liability on the tort claims.     

Obtaining advance beneficiary notices for Medicare physician providers

Medicare has established medical necessity rules that define the medical conditions that make beneficiaries eligible for particular services. These rules are codified in local medical review policies (LMRPs) that are established by Medicare claims payment contractors. If a beneficiary's provider does not inform the patient that a service may not be covered, the provider cannot subsequently bill the beneficiary for the service if it is denied. This article discusses the application of these policies. It illustrates the circumstances in which advance beneficiary notices (ABN) are required to ensure that patients have been notified that services rendered will not be covered by Medicare and will become their financial responsibility. The author also presents special applications of the ABN regulations as they apply to the EMTALA rules, anti-kickback, and other statutes. Samples of the official ABN forms are illustrated.     

Court decisions side with continued treatment of medically futile cases

Confusion reigns in the care of two medically futile cases as one state's supreme court requires hospitals to ask the local state attorney's office to arbitrate conflicts between "acceptable medical treatment and the patient's wishes," and another court applies the federal Emergency Medical Treatment and Active Labor Act (EMTALA) to require a hospital to stabilize an anencephalic child's respiratory distress.     

Hospital cost shifting revisited: new evidence from the balanced budget act of 1997

This paper analyzes hospital cost shifting using a natural experiment generated by the Balanced Budget Act (BBA) of 1997. I find evidence that urban hospitals were able to shift part of the burden of Medicare payment reduction onto private payers. However, the overall estimated degree of cost shifting is small and varies according to a hospital’s share of private patients. At hospitals where Medicare is a small payer relative to private insurers, up to 37% of BBA cuts was transferred to private payers through higher payments. In contrast, hospitals with greater reliance on Medicare were more financially distressed, as these hospitals saw large BBA cuts but were limited in their abilities to cost shift.     

Effects of Medicare BBA spending reductions on the profitability of general acute care hospitals

The Balanced Budget Act of 1997 was intended to reduce spending by about $115 billion from the Medicare Hospital Insurance trust fund over a five-year period. Several studies were funded by the hospital industry that indicated that the actual reductions would be far greater than $115 billion and that these reductions would have a devastating effect on U.S. hospital finances. In 1999, Congress passed the Balanced Budget Refinement Act, which added back about $11 billion in spending for fiscal years 2000 through 2002. In 2000, Congress passed the Benefits Improvement and Protection Act, which restored another $37 billion in spending over a five-year period. These cutbacks were going into effect at the same time as a cyclical decline in hospital operating margins occurred. This study was designed to determine if any separate effect of the Balanced Budget Act could be detected in the operating margins of general acute care hospitals in Tampa Bay, Florida. Operating margins were analyzed for 25 hospitals for a 12-year period (1990 through 2001), and a regression model was tested in which the dependent variable was the difference in mean operating margins for each hospital between the 1990 through 1997 period and the 1998 through 2001 period. The mean percentage of hospital revenue derived from Medicare, five other revenue source variables, and three hospital structural variables were used as the predictor variables. A statistically significant decline in operating margins was seen between these two periods, but Medicare revenue did not account for a significant amount of the variance. Thus, it was concluded that the Balanced Budget Act of 1997 did not significantly affect the operating margins of the study hospitals. Implications for Medicare policy are addressed.     

Cops and docs: The challenges for ED physicians balancing the police,state laws,and EMTALA

State laws are awash with discord concerning whether a police officer's request or court order necessarily obligates physicians to perform a body fluid analysis of an arrested, conscious, nonconsenting suspect. Police typically bring arrestees directly to the emergency department (ED), and federal courts have begun to wrestle with the implications of the Emergency Medical Treatment and Labor Act (EMTALA), which requires that anyone presenting to the ED be screened for treatment. Some state laws require health care providers to comply with any police request for lab analysis, while other states offer more leeway to physicians. Recent trends in federal case law interpreting EMTALA suggest that a medical screening exam is not required for patients brought by police specifically for a blood or urine sample unless either the arrestee requests medical care or a prudent observer would believe medical care was indicated. This article answers two questions: What happens when a police officer presents to the ED requesting service on behalf of an arrestee? What does EMTLA require of physicians in response? We survey current state statutes, review recent state and federal case law, describe example policies from various hospitals, and conclude with recommendations for hospital risk managers.     

BBA impacts on hospital residents, finances, and Medicare subsidies

Concern over rapidly rising Medicare expenditures prompted Congress to pass the 1997 Balanced Budget Act (BBA) that included provisions reducing graduate medical education (GME) payments and capped the growth in residents for payment purposes. Using Medicare cost reports through 2001, we find that both actual and capped residents continued to grow post-BBA. While teaching hospital total margins declined, GME payment reductions of approximately 17 percent had minimal impact on revenue growth (-0.5 percent annually). Four years after BBA, residents remained a substantial line of business for nearly one-half of teaching hospitals with Medicare effective marginal subsidies exceeding resident stipends by nearly $50,000 on average. Coupled with an estimated replacement cost of over $100,000 per resident, it is not surprising that hospitals accepted nearly 4,000 residents beyond their allowable payment caps in just 4 years post-BBA.     

BANKRUPTCY,MEDICAL INSURANCE,AND A LAW WITH UNINTENDED CONSEQUENCES

Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986, guaranteeing a standard of medical care to anyone who entered an emergency room. This guarantee made default a more reliable substitute for medical insurance. I construct a tractable structural model of the medical insurance market and find that repealing EMTALA would increase the fraction of the population with insurance while decreasing its price. Copyright © 2013 John Wiley & Sons, Ltd.     

Impact of Medicare's prospective payment system on hospitals, skilled nursing facilities, and home health agencies: how the Balanced Budget Act of 1997 may have altered service patterns for Medicare providers

The prospective payment system is one of many changes in reimbursement that has affected the delivery of health care. Originally developed for the payment of inpatient hospital services, it has become a major factor in how all health insurance is reimbursed. The policy implications extend beyond the Medicare program and affect the entire health care delivery system. Initially implemented in 1982 for payments to hospitals, prospective payment system was extended to payments for skilled nursing facility and home health agency services by the Balanced Budget Act of 1997. The intent of the Balanced Budget Act was to bring into balance the federal budget through reductions in spending. The decisions that providers have made to mitigate the impact are a function of ownership type, organizational mission, and current level of Medicare participation. This article summarizes the findings of several initial studies on the Balanced Budget Act's impact and discusses how changes in Medicare reimbursement policy have influenced the delivery of health care for the general public and for Medicare beneficiaries.     

Fixing EMTALA: what's wrong with the Patient Transfer Act

Congress primarily enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986 to prevent the denial of care to uninsured patients in emergency departments. The final version of EMTALA lacks specific protection for indigent patients and saddles hospitals and physicians with more liability than Congress initially intended. Loopholes in the law allow denial of care to patients when temporarily stabilized. Congress should ameliorate these problems through amendment of the law.     

Medicare physician payment changes: impact on physicians and beneficiaries

The Balanced Budget Act (BBA) of 1997 generally reduced Medicare payments for surgical services while increasing them for other services. Concern about implications of these fee reductions prompted the Medicare Payment Advisory Commission to sponsor a national survey of physicians to learn their views on Medicare payment and whether access to care has changed for Medicare beneficiaries. Results suggest that beneficiaries' access to care has not declined. While physicians are concerned about Medicare reimbursement, they are more concerned about reimbursement from managed care plans and Medicaid. Continued monitoring will be important to detect any emerging access problems accompanying upcoming payment reductions.     

Hospitals respond to Medicare payment shortfalls by both shifting costs and cutting them, based on market concentration

The coverage expansions planned under the Affordable Care Act are to be financed in part by slowing Medicare payment updates to hospitals, thereby reigniting the debate over whether low prices paid by public payers cause hospitals to increase prices to private insurers--a practice known as cost shifting. Recently, the Medicare Payment Advisory Commission (MedPAC) proposed an alternative explanation of hospital pricing and profitability that could be used to support policies that pressure hospitals to reduce overall costs rather than to only raise prices. This study evaluated the cost-shift and MedPAC perspectives using 2008 data on hospital margins for 30,514 Medicare and privately insured patients undergoing any of seven major procedures in markets where robust hospital competition exists and in markets where hospital care is concentrated in the hands of a few providers. The study presents empirical evidence that, faced with shortfalls between Medicare payments and projected costs, hospitals in concentrated markets focus on raising prices to private insurers, while hospitals in competitive markets focus on cutting costs. Policy makers need to examine whether efforts to promote clinical coordination through provider integration may interfere with efforts to restrain overall health care cost growth by restraining Medicare payment rates.     

Performance of U.S. Teaching Hospitals: A Panel Analysis of Cost Inefficiency

This research summarizes an analysis of the impact of environment pressures on hospital inefficiency during the period 1990-1999. The panel design included 616 hospitals. Of these, 211 were academic medical centers and 415 were hospitals with smaller teaching programs. The primary sources of data were the American Hospital Association's Annual Survey of Hospitals and Medicare Cost Reports. Hospital inefficiency was estimated by a regression technique called stochastic frontier analysis. This technique estimates a "best practice cost frontier" for each hospital that is based on the hospital's outputs and input prices. The cost efficiency of each hospital was defined as the ratio of the stochastic frontier total costs to observed total costs. Average inefficiency declined from 14.35% in 1990 to 11.42% in 1998. It increased to 11.78% in 1999. Decreases in inefficiency were associated with the HMO penetration rate and time. Increases in inefficiency were associated with for-profit ownership status and Medicare share of admissions. The implementation of the provisions of the Balanced Budget Act of 1997 was followed by a small decrease in average hospital inefficiency. Analysis found that the SFA results were moderately sensitive to the specification of the teaching output variable. Thus, although the SFA technique can be useful for detecting differences in inefficiency between groups of hospitals (i.e., those with high versus those with low Medicare shares or for-profit versus not-for-profit hospitals), its relatively low precision indicates it should not be used for exact estimates of the magnitude of differences associated with inefficiency-effects variables.     

Has the Medicare Prospective Payment System Led to Increased Nursing Home Efficiency?

RESEARCH OBJECTIVE: To assess the impact of recent Medicare prospective payment system (PPS) changes on efficiency in skilled nursing homes. DATA SOURCE/STUDY SETTING: Medicare Cost Reports (MCR), On-line Survey Certification and Reporting System (OSCAR), Area Resource Files (ARF), a Centers for Medicare and Medicaid Services (CMS) hospital wage index website, a Consumer Price Index (CPI) database, and a survey of state Medicaid reimbursement rates. The sample was 8,361 nursing homes in the Medicare Cost Report databases from the years 1997 to 2003. STUDY DESIGN: Data-envelopment analyses (DEA) calculated efficiency scores for three separate DEA models: unadjusted, acuity-adjusted, and acuity-and-quality-adjusted efficiency. The efficiency scores from these models were regressed on the Medicare PPS changes (the Balanced Budget Act [BBA], the Balanced Budget Refinement Act [BBRA] and the Benefits Improvement and Protection Act) and other organizational and market explanatory variables using a panel-data truncated regression. PRINCIPAL FINDINGS: Mean values for all efficiency measures decreased over time, the acuity-quality-adjusted efficiency measures decreasing the most. All policy variables were significantly negatively related to all efficiency measures. Higher nurse staffing was negatively related to efficiency in all but the acuity-quality-adjusted model. Other explanatory variables varied in their relationships to the efficiency variables. CONCLUSIONS: The results suggest that the reimbursement policy changes had a significantly negative impact on efficiency. Higher nurse staffing contributed to lower efficiency only when efficiency was not adjusted for quality. Various organizational and market factors also played significant roles in all efficiency models.