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Lawsuits imply EMTALA requires EDs to admit all uninsured patients
Experts question claim’s validity, saying only emergency treatment required
A series of 27 lawsuits aimed at organizations controlling about 250 nonprofit hospitals in 15 states and the Chicago-based American Hospital Association (AHA) have shone the spotlight on the Emergency Medical Treatment and Labor Act (EMTALA) and its requirements concerning the treatment — and admission — of uninsured and underinsured patients. The cases accuse the hospitals of a number of violations, including consumer fraud and violations of EMTALA, breaches of contract, breaches of good faith and fair dealing, and breaches of charitable trust. Among other charges, the lawsuits contend the hospitals would not admit a patient unless the patient agreed to pay charges in full.
While the legal and risk management experts contacted by ED Management question the merits of the cases, two recent reports, both showing growing pressures on America’s EDs to care for such patients, indicate that it’s more important than ever for ED managers to know exactly what their legal and ethical responsibilities are concerning uninsured patients.
One report, released through the Robert Wood Johnson Urgent Matters program at George Washington University in Washington, DC, found that while the fraying safety net and lack of awareness are forcing uninsured and Medicaid patients to seek care in the nation’s already strained EDs, the availability of specialty care for these vulnerable patients is poor in all 10 communities assessed, with waits of six months or more for a visit common. (For information on how to access the report, see resource box below.)
A second report, Characteristics of Emergency Departments Serving High Volumes of Safety-Net Patients: United States, 2000, from the Centers for Disease Control and Prevention’s (CDC) National Center for Health Statistics (NCHS), says that some 36% of the nation’s EDs are considered "high safety net," defined as those where at least 30% of the patients are Medicaid eligible, 30% are uninsured, or a total of 40% of the patients fall into either category.1
What EMTALA requires
So, what exactly are your responsibilities to these patients under EMTALA?
"The first thing you need to do is to recognize that EMTALA does not require hospitals to provide all care," says Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care in the department of emergency medicine of Carolinas Medical Center in Charlotte, NC. "It is only in force when you decide there is an emergency, and you act to stabilize the patient. But people forget that EMTALA ends after a certain point in the visit and everything after that time [with uninsured patients] really is charity care."
What you are required to do for these patients under EMTALA is exactly what you must do for every patient: provide an adequate screening exam to determine if an emergency exists, Bitterman says. If it does not, then the law does not apply beyond the exam.
"You only make a mistake if you do not screen these patients the same way you screen everybody else, or if you determined there was an emergency but did not stabilize the patient adequately prior to discharge or transfer," Bitterman explains.
An important point to remember is that EMTALA has no impact on whether or what you charge patients, says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison of the emergency department at St. Mary Medical Center in Long Beach, CA.
EMTALA says nothing about not charging someone you treat because they are uninsured, Lawrence says. "In fact, it’s a federal mandate that we treat people without any idea of payment at all," he says. In terms of EMTALA, it doesn’t matter whether the hospital writes it off or charges a large fee, he says. "What it does say is that you can’t ask somebody about whether or not they have the ability to pay until: A) You establish whether they have an emergency medical condition, or B) you have stabilized any emergency medical condition you’ve found."
Emergency physicians and hospitals are not supposed to know the financial status of an emergency patient, Lawrence says. The first requirement of EMTALA is that everyone who comes to the ED receives a medical screening exam (MSE), he notes. "At the time of the MSE to determine whether it’s an emergency, we are blind to what their financial status is," Lawrence says. "They could be indigent, or they could be Bill Gates."
If the MSE indicates it is an emergency medical condition, you have to stabilize the patient, which you also do without regard to the patient’s ability to pay, he says. To the extent that stabilization may require admission, unstable patients are required to be admitted — also regardless of the ability to pay, Lawrence continues.
"Once they are stabilized, however, you are rid of EMTALA and can ask all the questions you want about proof of insurance, deposits, and all the other ordinary things a hospital will do to stave off bankruptcy," he says.
Fulfilling the requirements of the law is one thing; doing that task while dealing effectively with the growing number of uninsured patients and helping to keep your hospital financially solvent, is another. At the University of Colorado Hospital in Denver, the ED has come up with a creative, though controversial, method for addressing all three challenges.
The Colorado state legislature has cut hospitals’ support fairly dramatically in the last few years, notes Norman A. Paradis, MD, associate professor of emergency medicine at University of Colorado Hospital. "Even in light of that inadequate funding, what we did not want to cut were lifesaving services such as chemotherapy and transplants and dealing with life-threatening emergencies in the ED," he says. "But every day, we have a large number of people here for nonemergency, i.e., primary care."
The ED managers have decided to tell those patients seeking care for nonemergencies that they can’t continue to treat them for free. "We tell them we want them to make a deposit toward the cost of care," Paradis adds.
How large is the deposit? "If it’s a Medicaid patient, it’s $3," Paradis says. "If they are completely indigent, well, the cost of an average ED visit for a minor problem is remarkably in the hundreds of dollars, so we ask for a $200 deposit toward the total cost of care."
The process, which was instituted two years ago, works in this manner: When patients come into the ED, a senior faculty member sees them within 10 minutes. "They immediately decide if it is an emergency or not, says Paradis. If it is, they are treated and stabilized. If it is not an emergency, the aforementioned deposit is requested.
Not surprisingly, the hospital’s new policy received a good bit of unfavorable local press. "We’ve been excoriated by the local media; from a PR point of view, this has been terrible," Paradis admits.
However, the ED was rationing care before; it just wasn’t doing it rationally, he emphasizes. "Waits in the ED were six hours. Diversions were more than 1,000 hours a year. And if we’re on divert, we are not meeting a fundamental community commitment."
Since this screening process has been put in place, diversions have dropped significantly, Paradis says. "I was initially skeptical, but now I’m enthusiastic," he adds. "Total diversions for the year will be less than 100 hours."
1. Burt CW, Arispe IE. Characteristics of emergency departments serving high volumes of safety-net patients: United States, 2000. National Center for Health Statistics. Vital Health Stat 2004; 13:1-23.
For more information on handling uninsured patients, contact:
To access a free copy of The U.S. Health Care Safety Net and Emergency Department Crowding, go to www.urgentmatters.org and click on "ED Crowding and the Health Care Safety Net."