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Violations of the Emergency Medical Treatment and Labor Act (EMTALA) have increased recently, and there could be several explanations, according to Sara H. Shanti, JD, an attorney with the law firm of Drinker Biddle & Reath in Chicago who frequently advises healthcare clients on EMTALA compliance.
The November 2013 EMTALA deficiency report from the Centers for Medicare and Medicaid Services (CMS) shows a dramatic increase in violations, from 696 in March 2013 to 1,140 in November 2013.
The sharp increase might be due to increased involvement in EMTALA enforcement by the Office of the Inspector General (OIG), Shanti says.
"In the past they were involved, but they left much of the work to CMS, which in turn relied on surveys by state inspectors. There was a lot of downstream delegation," she says. "In 2011 OIG took a renewed interest in overseeing CMS and also at looking more directly at deficiencies. There has been so much talk about healthcare in general for the past few years, in addition to the talk about Obamacare, and so issues like EMTALA compliance are getting more attention from all directions."
EMTALA investigations have been complaint-driven for the most part, Shanti notes, and consumers are becoming more aware of their rights as patients. That increased awareness could account for some increase in deficiencies, she suggests. (Some states have also enacted laws that broaden the reach of EMTALA. See the story on p. 54 for more details.)
"It’s one thing for the surveyors to come on site and look at the books and the numbers, where everything might look pretty much OK," Shanti says. "But those numbers may not capture the individual who was sitting in the waiting room for hours and finally got up and left, or the people who left after speaking with someone. Those incidents aren’t captured in the hospital’s books, but if there is some reason people are more willing to complain now, that is data the OIG and CMS would rely on."
That supposition is supported by the recent increase in civil suits, which Shanti says also might be attributed to the public being more aware of their rights and what constitutes malpractice. "The government does watch those headlines, and they will jump in if they want to either join the complaint or investigate the matter for conditions of participation or other government requirements," she says. "Some of the things that end up in the newspaper or civil court come to the government’s attention that way."
Auditing also is becoming more common in healthcare for several reasons, such as quality issues and patient privacy. When auditors are in the hospital poking around for one reason, they might come across evidence of a completely different matter such as an EMTALA violation, she says. So the general increase in auditing can lead to a rise in completely unrelated violations.
The increase in violations is particularly the case when there is any kind of complaint against the emergency department (ED), Shanti says. The patient might not have complained about EMTALA but an EMTALA deficiency might be the end result.
"We see this a lot with discrimination allegations in the ED," Shanti says. "The patient may complain about being treated differently than another person, and when the investigators go in to look around, they could find evidence that triggers an EMTALA investigation."
Another factor is the regulators’ being more strict with healthcare providers, Shanti says. Now that the rule has been around for 10 years, the government is taking a stronger approach to violations and is much less willing to accept pleas of misunderstanding the rule.
"The ante has been raised with EMTALA compliance," Shanti says. "Hospitals have to pay more attention to EMTALA compliance more than they ever did before."