While declining numbers of "patient dumping" settlements and diminished dollar recoveries may point to decreased enforcement, an official with HHS' inspector general's office said there's much more to the story.
Government and private lawyers and consumer advocates offer many reasons for the precipitous drop in patient dumping settlements by the inspector general in the past three years, after record highs from 1998-2000.
The inspector general was slow to enforce the 1986 Emergency Medical Treatment and Active Labor Act, better known as the patient antidumping law, which bars hospitals from refusing or delaying treatment for emergency patients for economic or other reasons.
In fiscal 1990, for example, the inspector general inked only five settlements with hospitals for a total of $200,000, and the number of settlements didn't exceed the teens until 1995, hovering between 14 and 18 yearly until 1998 (See chart).
The number of settlements rose to 53 in 1998, with recoveries totaling $1.8 million. That trend continued for three years, peaking at 61 settlements in 1999 with fines of $1.72 million. But by fiscal 2001, settlements dropped to 21, and this year to date number only 12. Total annual monetary recoveries since those high-water mark years have averaged less than $500,000.
So what happened?
Peter Lurie, deputy director of the Washington-based consumer health organization Public Citizen's Health Research Group, said either hospitals are improving their compliance or enforcement is dropping off.
"Whenever you see a rapid drop-off, you have to think it's more likely due to discretionary government behavior than a change in behavior by hospitals," Lurie said. "Hospitals have known about this law for years; why should they suddenly get religion in 2000?"
Rockford, Ill., lawyer Stephen Frew, who authored a book on the law for the American College of Emergency Physicians, said he believes the inspector general's office lacks the manpower to vigorously enforce the law.
"(HHS Secretary) Tommy Thompson has tried to make the office more user-friendly and this step back probably represents an administrative consensus to take a lower public profile on EMTALA cases," Frew said. "There are just a handful of people in the office handling EMTALA cases and most of them have other duties, so I think it's become a manpower issue."
Mac Thornton, former chief counsel to the inspector general and now in private practice with the Washington office of Sonnenschein, Nath & Rosenthal, said a confluence of factors contributed to both the sudden rise in EMTALA settlements and its quick decline. Thornton said that in the early 1990s, funding for the office had declined and enforcement suffered.
But by the late 1990s, Inspector General June Gibbs Brown decided to make enforcement of the patient antidumping law one of her top priorities and resources were focused there.
Flush with new enforcement dollars mandated by the Health Insurance Portability and Accountability Act of 1996, a bulked-up inspector general's office began tackling more than 600 backlogged patient dumping cases referred to the office by HCFA, now the Centers for Medicare and Medicaid Services.
"There was a huge backlog in 1997," Thornton said. "By 2001, the backlog was gone and there were fewer referrals coming from the CMS. At the same time, the numbers were telling us that the hospital industry was getting the message and had become much more careful with its EMTALA compliance."
But Thornton said Inspector General Janet Rehnquist, who resigns effective June 1, did not view EMTALA enforcement as a high priority.
"She did not order any cuts in staff or resources," he noted. "But it was not a front-burner issue, and the agency was staffed where her interests lay."
Sandra Sands, senior counsel to the inspector general charged with overseeing EMTALA enforcement, said it would be wrong to assume that the office's commitment to enforcing the law has diminished.
"I think that's absolutely untrue," Sands said.
She conceded that the agency per- iodically shifts resources when it is concerned about trends and practices of healthcare providers.
For example, she said the inspector general has been focusing recently on administrative remedies for violations of the antikickback law.
"During the period when there were greater numbers of settlements, we were making a concerted effort because we were seeing a lack of compliance by the hospital industry," she explained, saying times have changed.
"But at the same time we were assessing more civil monetary penalties, we were also doing many other things to increase awareness of hospital obligations and working with state and national hospital associations on education efforts. We don't feel we need to keep up the same level of enforcement to achieve an effective level of compliance."
She said the inspector general's office thoroughly reviews every dumping case that the CMS refers to it. She said staffing and resources dedicated to EMTALA enforcement actually have increased.
"We continue to enforce what we believe are egregious violations of the law," she said. "But we don't assess civil monetary penalties in every case."
Maureen Mudron, Washington counsel for the American Hospital Association, said hospitals always have taken the patient antidumping law seriously. She said the AHA and state associations worked with government agencies to clarify the law and understand their responsibilities.
"The AHA worked hard with the agency to develop a knowledge base and common understanding and to clear confusion between regional offices," Mudron said. "There's been an ongoing educational effort as well. I think the inspector general numbers reflect that hospitals appreciate their obligations under the law."
Lowell Brown, a lawyer with the Los Angeles office of Foley & Lardner, said hospitals have gotten more EMTALA-savvy. "The level of education and awareness is higher than it was five years ago," Brown said.
The most recent hospital to settle, Kaiser Foundation Hospital Sunset in Los Angeles, said it learned something from its EMTALA experience.
April, the hospital agreed to pay $20,000 to resolve its liability in a 2001 case in which one of its on-call cardiac surgeons refused to accept a transfer patient in critical condition.
Kaiser Sunset spokeswoman Pamela Dean said the incident led the hospital to review and improve its transfer policy.
"We've put in procedures that kick up a doctor's decision to deny a transfer or refuse to accept a patient to a higher level of review and bring in another physician to make a final decision," Dean said.