Critical Care Plus

New Regulations Expected to Affect ICU Population

New rules put forth by the bush administration that took effect on Nov. 10 significantly relax strictures in the 1986 Emergency Medical Treatment and Labor Act (EMTALA) that required hospitals and some hospital-owned clinics to examine and treat people who need emergency medical care even when those patients can’t pay. The law applies to all hospitals that participate in Medicare and offer emergency services.

Because many ICU patients enter hospitals through the emergency room, the new regulation may also improve the ICU staff-to-patient ratio by lowering the number of ICU patients, though by how much will depend on the type of ICU and on a hospital’s current admission and staffing policies. The new regulation says that the 1986 law will not apply to emergency patients once a hospital has admitted them. After more than a decade of downsizing, many hospitals throughout the country are experiencing system stress in their emergency departments due to diminished capacity.

Surgical ICUs will Probably Experience Few Effects

According to Eugene Litvak, PhD, a professor of health care and operations management at Boston University School of Management, the proportion of emergent surgeries in surgical ICUs is usually very small. Litvak doubts that relaxed rules will much affect them but says that multidisciplinary ICUs are another story. Reduced demand from EDs will immediately affect these ICUs, Litvak says, but it’s hard to speculate what the extent of the effect would be because hospitals differ widely in numbers of available staff and in the proportion of medical and surgical ICU patients they serve.

Litvak has conducted research on the effects of artificial variability on ICU staffing at several major medical centers. His research shows a high correlation between those times when patients can’t get into ICU or floor units and times when most surgical patients leave operating rooms and post-operative care unit floor beds, thus turning ED patients into "boarders" who block the patient flow.

Drafted in response to scores of complaints from hospitals and physicians that the old standards exposed them to lawsuits and fines for non-compliance, the new rule states that hospitals will not need not to make specialists available 24/7 and can legally exempt senior medical staff from on-call duty. The preamble to the new regulation says, "The overall effect of this final rule will be to reduce the compliance burden for hospitals and physicians."

The administration drafted the new rule after reviewing complaints from scores of hospitals and doctors who said the old standards were confusing and encouraged people without insurance to look for free care in emergency rooms.

Hospitals and doctors who violate the 1986 law can be fined $50,000 per violation and be excluded from receiving Medicare reimbursement. Since 1998, more than $4 million in fines have been collected by the government from 164 hospitals and physicians accused of violating the 1986 law.

Because courts have frequently ruled for patients and against hospitals, some patients may find that winning lawsuits filed due to injuries that occurred as a violation of federal standards. Patients who are turned away or refused emergency care will still be able to sue, but hospitals will have stronger defenses because the new rule reduces requirements about when and where hospitals must provide emergency services.

At least one ED physician, Robert A. Bitterman, who practices at the Carolinas Medical Center in Charlotte, NC, has commented that the new rule may make it more difficult for ED patients to gain timely access to specialist physicians because specialists are not accepting on-call duties as frequently as they used to. As a result, Bitterman says many EDs are without on-call coverage for such specialties as neurosurgery and orthopedics. (For more information, contact Eugene Litvak at [617] 358-1633 or Robert Bitterman at [704] 355-2000.)