Desperate to stop the flow of red ink, Level I trauma center will deny transfers

Facility asserts other hospitals can care for lower-level trauma patients

Caught between the proverbial rock and a hard place, the University of Mississippi Medical Center (UMC) in Jackson has taken drastic action and announced that on a case-by-case basis, it may decide not to accept future transfers from facilities it believes have the resources to care for those patients themselves. But in so doing, UMC may have put itself in danger of violating the Emergency Medical Treatment & Labor Act (EMTALA), says one expert.

While perhaps being one of the more dramatic responses to a growing trend, the medical center’s decision is not all that surprising. UMC experienced a $20 million increase in the amount of indigent or uncompensated care from fiscal 2003 to 2004 — from $48 million to $68 million.

"We have, like everyone else, been monitoring our financial situation and seen dramatic increases in costs of uncompensated care," says Dan Jones, MD, UMC vice chancellor. UMC performed an analysis of the reasons for that dramatic increase and found that roughly two-thirds were related to trauma. "We further found that essentially all that growth in trauma uncompensated care was in lower-level trauma cases," Jones says.

Michael Frank, MD, JD, general counsel for Emergency Medicine Physicians (EMP), a physicians group based in Canton, OH, says, "There’s definitely a trend for hospitals to try to find ways to deal with shrinking reimbursement and growing acuity, and everyone has to find ways to make ends meet." He adds, however, that he is unaware of other facilities taking this specific action.

UMC will tell other hospitals that it will not accept the transfer of some lower-level trauma patients. "We are the state’s only Level I trauma center, but we saw we could not sustain our current course and started talking publicly about other centers’ ability to handle lower-level trauma cases," recalls Jones. "Everyone has a need and a desire to move patients on to another place, but we simply had to put the notice out that we can’t financially sustain this increased growth in uncompensated trauma care."

Did UMC decide upon this course of action after learning that other facilities were doing the same thing? Jones says no. "We did it based on what our judgment was here," he notes. "There are, however, other large trauma centers nationally that are looking at how they accept transferred trauma patients."

Beware of EMTALA

That may be so, but Frank contends that UMC’s new policy may violate the spirit — if not the letter — of EMTALA.

"One of EMTALA’s provisions requires hospitals that have specialized units’ to accept the transfer of unstable patients who need further evaluation or stabilizing treatment, and to refuse to accept those patients would constitute reverse dumping," he notes.

Even though the actual law refers only to specialized units and even gives examples (e.g., regional trauma centers, burn units, and neonatal intensive care units), the Centers for Medicare & Medicaid Services (CMS) and the associated regulators and investigators generally have decided to interpret this law to mean that any hospital that has a facility for caring for patients that the transferring facility does not have is under the obligation to receive transfer — and to refuse would be reverse dumping, Frank explains.

"It is not [literally] supported by the statute, but it is by practice," he says.

What’s more, Frank adds, it doesn’t take much for your facility to be deemed to have a specialized unit. "It could be as simple as, We have a bed open in our telemetry unit, and you don’t,’" he explains.

In addition, Frank notes, it isn’t up to the hospital being asked to accept a transfer to decide that the hospital seeking transfer is fully capable of treating the patient in question. "That judgment is not up to the receiving hospital," he asserts. "Obviously, a transferring hospital is not going to call up and say, We could take care of this patient, but we’re not going to.’ But Mississippi is saying they’re going to second-guess the transferring hospital and basically tell them, We say you can take care of this patient, so we won’t.’"

Such a decision, however, "is pre-emptive and could land the receiving hospital in a lot of trouble if it turns out afterward that the transferring hospital, in fact, could not take care of that patient," Frank asserts.

If a receiving hospital decides there is a problem with a hospital transfer request, the proper course of action is to contact CMS and complain — in which case, there would be an investigation after the fact, he explains.

Jones, having consulted with his own counsel, is confident that UMC’s actions fit within the guidelines of EMTALA. The term "refuse to treat" is never something you will hear out of any administrator, he declares.

"We do make decisions on a case-by-case basis; and if we have limited beds available, we may say, Not now,’ in terms of a request for transfer in a situation where patients are being managed at the time of the call and the facility has the resources to care for that patient," Jones says. "We certainly aren’t going to refuse to care for people who need it and can’t get it other places."

As for Frank’s observation that it’s not up to the receiving hospital to determine the transferring facility’s ability to care for a patient, Jones contends he has that concern covered as well. "There are simple questions that are easy to ask and answer, like, Is there a neurosurgeon available on your staff?’" he offers. "We’ve been very careful that we do not get crossed with any EMTALA guidelines."

ED managers, beware

As more and more facilities desperately seek solutions to this problem, Frank advises ED managers to be aware of their rights — and the potential legal exposure they may face under EMTALA. "ED managers are the ones being put on the hot seat; they generally will be giving the receiving calls," he notes.

While under EMTALA, there is no private right of action due to actions of individual physicians. "It is very common for suing attorneys to name physicians for violation of EMTALA; the first thing your defense attorney needs to do is get it stricken," Frank advises.

However, he adds, physicians who do violate EMTALA can be subject to monetary fines as high as $50,000 for each violation and/or exclusion from government programs such as Medicare.

The good news is that you have every right to refuse a request from upper management that violates EMTALA. "There are whistle-blower and compliance protections, so under EMTALA a physician can’t be penalized for refusing to violate EMTALA or complaining about a violation," Frank adds.

Sources

For more information on transfer strategies, contact:

  • Michael Frank, MD, JD, General Counsel, Emergency Medicine Physicians, 4535 Dressler Road, Canton, OH 44718. Phone: (330) 493-4443.
  • Dan Jones, MD, Vice Chancellor, University of Mississippi Medical Center, 2500 N. State St., Jackson, MS 39216-4505. Phone: (601) 984-5572.