EXECUTIVE SUMMARY

Hospitals continue violating EMTALA despite years of compliance efforts and the threat of severe penalties. In most cases, the hospital does not intend to dump patients.

• ED overcrowding and behavioral health issues can complicate compliance efforts.

• The number of violations may be higher than reflected in OIG data.

• Receiving hospitals should discuss suspected violations with the transferring hospital.


The Emergency Medical Treatment and Labor Act (EMTALA) was passed in 1986 after several well-publicized instances in which patients died after being turned away from hospitals because they could not pay for treatment, and it imposes fines of up to $50,000 and disqualification from Medicare.

That is plenty of time for healthcare organizations to implement compliance programs and the penalties are severe enough to warrant attention, so why do EMTALA violations still occur? It’s rarely because hospitals are simply trying to dump patients, compliance experts say. There are several factors at work, from lingering uncertainty about specific compliance requirements to real-world difficulties like overloaded EDs and behavioral health issues that can clash with efforts to follow the rules.

A review of investigations by the Office of the Inspector General (OIG) of the Department of Health and Human Services, including cases settled from 2002–2015, found that in that period there were 192 settlements with fines against hospitals and physicians totaling $6,357,000. Ninety-six percent of the settlements were against hospitals, and the rest against physicians. (An abstract of the review is available online at: https://bit.ly/2Hc11CV.)

The most common settlements were for failing to screen, accounting for 75%, and failing to stabilize, cited in 42.7% of the cases. Inappropriate transfer and failing to transfer each accounted for 11.5% of the violations, while hospitals failed to accept an appropriate transfer in 13%. The settlements claimed patients were turned away from hospitals for insurance or financial status in 15.6% of the cases.

Just under 7% of violations involved patients in active labor. An on-call physician refused to see the patient in 6.3% of the cases.

More Violations Not Reported

Those numbers may only reflect part of the problem with EMTALA compliance, says Charleen Hsuan, PhD, assistant professor of health policy and administration at Pennsylvania State University in University Park. Her research indicates that receiving hospitals often suspect an EMTALA violation but do not report it.

EMTALA violations occur because there are still strong financial pressures to avoid costly patients, even though clinicians and risk managers try not to be unduly swayed by those concerns, she says. Another primary factor is that EMTALA is not simple, at least not when it comes to applying it in real-world situations, she says.

Hsuan’s research indicated that there is consistency in how clinicians are trained in EMTALA compliance.

“There are a lot of moving pieces to it. There are a lot of assumptions being made about who actually provides the EMTALA training, with some of those interviewed saying the hospital association takes care of it but the association saying no, the hospital handles its own EMTALA training,” Hsuan says. “That’s important to figure out right away, the hospital’s assumptions about who knows what about EMTALA. Medical schools tell us that they don’t even cover EMTALA, except maybe for the emergency medicine specialists.”

There also can be conflicting priorities between physicians and risk managers, she says. Physicians are concerned about malpractice and may turn away patients, thinking they are protecting themselves if they are unable to provide the best care to the patient, or if the patient otherwise is a malpractice risk.

“Physicians often are surprised to learn that they can be held personally liable for an EMTALA violation and can even lose their Medicare certification. It’s not just the hospital that can be held responsible,” Hsuan says. “That’s a point the hospital should repeat to physicians, emphasizing that this problem affects both hospitals and physicians.”

Some hospitals are implementing EMTALA best practice procedures such as routing all transfers to a specified person, such as the ED director, who can ensure compliance, Hsuan says. That can help when individual ED physicians may not be as familiar with EMTALA requirements and might refuse transfers inappropriately. Those policies often are implemented after a hospital is cited for an EMTALA violation, she says.

Another best practice is to clarify the screening process for specific conditions.

“Hospitals sometimes get into trouble when the patient has come in 10 times before and has a history of being drunk or abusing substances, and the clinician assumes it’s the same thing this time. They don’t implement the usual screening process, and it turns out that this 11th time the patient actually was suffering from something else,” Hsuan says. “The hospital can make clear that the appropriate screening process applies every single time, no matter the history with the patient and even when you think you know what’s really going on.”

Contracted physician groups should be required to show that their doctors are trained in EMTALA, including on-call specialty groups, Hsuan says. Hospitals also can take a more active role in ensuring that physicians participate in refresher sessions and updates on EMTALA, she says.

Physicians definitely are feeling more financial pressure than ever and that affects their EMTALA compliance efforts, says Jay Jagannathan, MD, a neurosurgeon in Troy, MI. His practice provides on-call specialty coverage at trauma centers in Michigan, and he says some hospitals are known for trying to avoid Medicaid and other patients who could be a financial burden. That is a reasonable business decision, considering lean reimbursements and other financial demands, but it sometimes runs counter to EMTALA, he notes.

Limited bed space is another factor that physicians often run into when trying to make appropriate transfers, particularly with patients who need specialized services like neurological intensive care, he says.

“It often comes down to having appropriate triage units so those beds can be made available, and having good open lines of communication between hospital administration and the specialists about what those capabilities are,” Jagannathan says. “Being in a field where fairly minor changes in time can make dramatic differences in patient outcome, we put a high value on processes that eliminate any unnecessary delay. About a once or twice a month I see delays that could have been prevented with better mechanisms in place by the hospital.”

Social factors must be considered when assessing EMTALA compliance, says Candy Campbell, DNP, RN, CNL, CEP, FNAP, assistant professor, MSN-CNL maternity lead, at the School of Nursing and Health Professions at the University of San Francisco in California. Some facilities face great pressure to accommodate the needs of communities with high rates of homelessness, substance abuse, and other social ills, she notes. (See the story in this issue for more on how homelessness affects EMTALA compliance.)

EMTALA can be abused by those who are seeking a way off the streets or pain medications, she notes. People learn that hospitals are not allowed to turn patients away without a screening, and combined with malpractice fears that prompt a workup for any complaint, that means many EDs will be crowded with people who have ulterior motives, she says.

In addition, some hospitals face a glut of trauma patients from gang violence and other criminal activity, which means some patients will be denied care because they are more stable than the trauma patients who need the available beds and resources.

“These are multifaceted problems, and we’re doing our best with EMTALA to make sure hospitals don’t take advantage of poor people,” Campbell says. “The intent of the law is admirable, of course, but there are so many factors that complicate compliance. As a medical person, I question how many of these instances are really violations of the law, and how many of them are people just trying to bilk the system? I don’t know.”

EMTALA may appear to be simple and straightforward, but it becomes less so when applied to an individual patient, says Kevin Klauer, DO, EJD, FACEP, chief medical officer for hospital-based services and the chief risk officer for TeamHealth, an organization based in Knoxville, TN, with more than 20,000 clinicians nationwide.

In particular, Klauer says hospitals sometimes focus only on transfers and give short shrift to the other components of EMTALA.

“If you’ve not recognized someone’s emergency medical condition and you haven’t provided the appropriate stabilizing treatment, but you’ve discharged them, that can be an EMTALA violation,” he notes.

The intake process also is important, he says. It must treat people equally and not produce a delay in the screening or treatment process to obtain financial information, he says.

The continuing increase in patient volume at EDs across the country is creating “the perfect storm for more EMTALA violations,” Klauer says.

“Part of EMTALA is that you be afforded a timely medical screening examination. You can’t wait hours because they might decompensate,” Klauer says. “If you have a busy day and your waiting room is overrun, the hospital is full, and you’re boarding, you’re going to have delayed medical screening examinations. Everyone who walks out because they’re tired of waiting could file an EMTALA complaint.”

Technical Violations, Not Dumping

EMTALA violations sometimes occur through “technical” violations. says Callan Stein, JD, partner in the Boston office of Barrett & Singal. These are not situations of “patient dumping,” which the statute was enacted to prevent, but rather situations where everyone involved — the patient, the transferring hospital, and the receiving hospital — agrees on a course of action but the technical requirements for an EMTALA-compliant transfer are not met, usually because of exigent circumstances.

“For example, I worked on a case where a patient presented to a hospital in active labor with twins and requested a transfer to a neighboring hospital where her obstetrician worked. The hospital agreed to transfer the patient and the neighboring hospital agreed to receive the patient, but because of the urgency of the situation, the transferring hospital’s emergency department did not consult with a physician before transferring the patient as required by EMTALA,” Stein says. “Thankfully there was no harm to the patient or the babies, but this still constituted a violation of EMTALA, albeit a technical one.”

Stein does not believe that EMTALA violation arose because of confusion with the law. The hospital risk manager recognized fairly quickly after the transfer that it was technically not compliant with EMTALA, he says. But even though the ED staff had been trained on proper transfer procedure, the specific and exigent circumstances of this case resulted in the violation, he says.

Details Matter

While the core obligations of EMTALA are well understood by most hospitals, the devil is in the details, says Travis G. Lloyd, JD, partner with the law firm of Bradley Arant Boult Cummings in Nashville, TN. Many key terms like “emergency medical condition” and “medical screening examination” and key concepts like appropriate stabilization and transfer are defined in ways that give hospitals and practitioners discretion to make appropriate clinical judgments, he says. But, invariably, questions arise at the margins of those definitions.

In addition, many hospitals have struggled with managing patients who present with behavioral health issues, Lloyd says, noting how a South Carolina hospital made headlines last year when it entered into a $1.3 million settlement with OIG to resolve allegations that it had failed to properly handle behavioral health patients presenting at its ED. According to the settlement agreement, the hospital allegedly held behavioral health patients in its ED without having an on-call psychiatrist evaluate them or admitting them to the hospital’s inpatient behavioral health unit.

“In each instance, the patient was involuntarily brought to the hospital’s emergency department, often by law enforcement,” Lloyd says. “While the hospital had an inpatient behavioral health unit, the unit had a policy of only admitting patients that are voluntarily committed. Instead of admitting the patients, the hospital allegedly held them for extended periods of time in the emergency department while it tried to stabilize them or have them transferred.”

Urgent Care Problematic

There also continues to be uncertainty about the application of the law to urgent care centers, particularly those owned by hospitals, Lloyd says. In many instances, the analysis comes down to whether the urgent care center is held out to the public as a place that provides care for emergency medical conditions on an urgent basis without requiring an appointment, often a highly fact-intensive inquiry, he says.

If it is so held out, the facility constitutes a “dedicated emergency department” for EMTALA purposes and will be subject to the law’s substantive requirements, he explains.

“One of the major competing priorities is specialist availability. CMS [Centers for Medicare & Medicaid Services] has made clear that it expects a hospital to strive to provide adequate specialty on-call coverage consistent with the services provided at the hospital and the resources the hospital has available,” Lloyd says. “Meeting this requirement can be difficult for small hospitals located in rural areas as well as large hospitals with highly specialized service offerings. In addition, arrangements through which hospitals pay physicians to provide call coverage must be carefully structured in view of fraud and abuse laws, like the Stark Law and Anti-Kickback Statute.”

In the wake of an EMTALA incident, hospitals and risk managers should carefully consider whether there are any process changes that should be made to avoid or reduce the likelihood of future incidents, Lloyd says. Surveyors investigating EMTALA complaints likely will ask what the hospital has done to prevent it from happening again. Follow-up efforts often involve targeted training.

Document Training Efforts

Risk managers should seek to coordinate with medical staff leadership to get physician buy-in on these training efforts, Lloyd says. Administrators and risk managers should document their follow-up to best position the hospital to respond to surveyors’ requests.

Recent changes to the Affordable Care Act and increasing costs of health insurance could lead to more EMTALA dilemmas, since EMTALA’s “big picture” purpose is to stop hospitals from refusing to treat patients who either have no insurance or the “wrong” insurance, notes Karen Owens, JD, an attorney with Coppersmith Brockelman in Phoenix. Violations continue to occur, even after monetary penalties for noncompliance were doubled in 2017 for four primary reasons, Owens says.

First, while the purpose of EMTALA may sound straightforward and self-evident, Owens says the EMTALA law and regulations impose a series of highly prescriptive, fairly technical steps that hospital ED staff must take in connection with examining, treating, and transferring patients seeking emergency services.

“Sometimes these specific technical requirements make sense, and sometimes they are inconsistent with the on-the-ground activities of an emergency department. Noncompliance with any of these requirements can give rise to a violation,” Owens says. “In the hubbub of a busy emergency department, technical compliance sometimes gives way to treating patients and the need to keep moving.”

The on-call requirement in EMTALA still generates problems, Owens says. Under the regulations, hospitals must maintain lists of specialists on the medical staff who can come to the hospital to supplement the skills of the ED practitioners in screening and stabilizing patients. Many hospitals have attained compliance with the list requirement by paying physicians to serve on call or employing physician specialists and including on-call services in their contracts.

“All that said, physicians still frequently see on-call service as a burden to be resented. If the hospital’s system allows these specialists to decide whether or not to accept a patient seeking transfer to a higher level of care, they may fail to follow regulatory requirements when making such decisions,” Owens says.

EDs are challenged when patients arrive with a constellation of physical, behavioral, and substance abuse problems. Harried ED personnel may treat the physical complaints but miss or ignore the behavioral health issues, especially if the hospital lacks behavioral health inpatient capabilities, Owens notes.

Conversely, ED personnel may conclude that a patient is drug-seeking rather than legitimately seeking emergency services, and miss real physical or behavioral emergency medical conditions. Conclusions based on prior experiences with a patient or other understandable reasons can lead to a decision not to treat a patient who really needs treatment, she says.

“All this leads to the final reason why EMTALA violations continue to occur: EMTALA has never done anything but treat the symptom while ignoring the underlying problems. The increase in numbers of people with insurance coverage may assist in compliance by keeping patients from using the ED as a primary care provider,” Owens says. “The erosion of the Affordable Care Act likely will reverse that trend. And in the behavioral health and substance abuse areas, appropriate resources simply do not exist at all or in adequate numbers to care for patients in many, many United States communities.”

Communicate Before Reporting

Shifting to hospitals the burden of assisting these patients does not do anything to augment available resources, Owens says. Behavioral health and substance abuse care, as well as ongoing efforts to augment the lives covered by insurance, must continue and increase if hospitals are going to be able to consistently comply with EMTALA, she says. (See the story in this issue for Owens’s advice on how to improve compliance.)

Lloyd notes that the EMTALA regulations provide that, in the event a hospital has reason to believe that it may have received an improperly transferred individual, it must promptly report the matter to CMS or the state survey agency within 72 hours. Failure to report improper transfers potentially subjects the receiving hospital to termination of its provider agreement.

“Although there’s a short fuse on the reporting obligation, a receiving hospital that suspects an improper transfer should contact the transferring hospital to get all of the facts. Through that diligence, the receiving hospital may conclude the transfer was, in fact, proper,” Lloyd says. “Regardless of whether the receiving hospital validates its initial concern, the hospital should document its analysis as it may be asked to explain its decision-making to surveyors.”

Jagannathan says more one-to-one communication between physicians could smooth many EMTALA transfers. He keeps a list of physician contacts at the state’s academic tertiary care centers where he is most likely to transfer patients for specialized care, and says ED physicians should try to know their counterparts at other facilities.

Owens also encourages more communication between hospitals when there is concern over a transfer. More of that communication could improve the relationship and diminish future EMTALA concerns, she says.

“I can’t tell you how often I have heard community hospital personnel complain about being turned down when seeking to transfer patients to big city specialty centers, and then have heard the big hospitals complain that the community hospitals transfer unnecessarily,” Owens says. “Better communications can make a big difference here. The key is to have these discussions when patients are not stuck in the middle.”

SOURCES

• Candy Campbell, DNP, RN, CNL, CEP, FNAP, Assistant Professor, MSN-CNL Maternity Lead, School of Nursing and Health Professions, University of San Francisco. Phone: (800) 407-1688. Email: candy@candycampbell.com.

• Charleen Hsuan, PhD, Assistant Professor of Health Policy and Administration, Pennsylvania State University, University Park. Phone: (814) 863-2859. Email: chsuan@psu.edu.

• Jay Jagannathan, MD, Troy, MI. Phone: (248) 792-6527.

• Kevin Klauer, DO, EJD, FACEP, Chief Medical Officer for Hospital-based Services, Chief Risk Officer, TeamHealth, Knoxville, TN. Phone: (800) 342-2898.

• Travis G. Lloyd, JD, Partner, Bradley Arant Boult Cummings, Nashville, TN. Phone: (615) 252-2306. Email: tlloyd@bradley.com.

• Karen Owens, JD, Coppersmith Brockelman, Phoenix. Phone: (602) 381-5463. Email: kowens@cblawyers.com.

• Callan Stein, JD, Partner, Barrett & Singal, Boston. Phone: (617) 720-5090. Email: cstein@barrettsingal.com.