Why patients still need EMTALA

In September 2012, a man arrived in the emergency department at Bon Secours St. Francis Health System in Greenville, S.C., after being shot in the leg during a robbery. A few months later, in February 2013, another man came to the same St. Francis ED after being shot in the abdomen at a club. In both cases, the hospital didn't provide stabilizing treatment because the on-call specialist declined to come in and evaluate the patients. It transferred the patients to another hospital.

This past December, Bon Secours St. Francis agreed to pay a $100,000 civil penalty to settle allegations that it violated the federal Emergency Medical Treatment and Active Labor Act (EMTALA) by improperly transferring the two gunshot victims, even though it had the capacity to treat them. The benefits of the transfer did not outweigh the risks and unnecessarily placed their health at further risk, according to HHS' Office of Inspector General.

Spurred by the federal investigation, the hospital's administrators, physicians and staff launched an initiative to improve the ED's trauma processes and internal communication. Everyone was instructed on hospital and physician responsibilities under EMTALA. The hospital formed a multidisciplinary trauma committee to regularly review emergency and transfer cases, improve processes for treating patients quickly, and strengthen collaboration between ED staff and specialty surgeons.

“Our physicians have taken full ownership of this process and agreed that when a physician is on call, they call back to the ED within 15 minutes and they have boots on the ground at the patient's bedside within an hour,” said Dr. Saria Saccocio, the hospital's chief medical officer.

All of that happened because of a law signed 30 years ago by President Ronald Reagan. Congress passed EMTALA, known as the patient anti-dumping law, in response to national outrage over a surge in community hospitals transferring unstable emergency patients—including women in labor—to public hospitals and academic medical hospitals, largely for financial reasons.

It was the first federal legislation establishing an affirmative right to healthcare, albeit a limited one. Experts say the law remains essential in ensuring that people receive basic treatment for emergencies, since tens of millions of Americans remain uninsured or underinsured despite the coverage expansions under the Affordable Care Act.

EMTALA requires Medicare-participating hospitals to screen patients for emergency medical conditions and provide stabilizing treatment, regardless of their ability to pay. Hospitals with specialized capabilities must accept appropriate transfers to provide stabilizing treatment. The law does not require providers to continue treating patients once they are stable, nor does it generally apply after someone is admitted as an inpatient.

Hospitals found in violation of the law potentially face a $50,000 civil fine per incident, and can be barred from the Medicare and Medicaid programs. The law also gives dumped patients or their families the right to sue the provider.

EMTALA—whose basic requirements are posted on the walls of every hospital ED—is widely credited with sharply reducing the number of cases of hospitals dumping or avoiding uninsured or underinsured patients. “It was the first universal healthcare law,” said retired Democratic congressman Pete Stark of California, one of the authors of the bipartisan legislation. “It's done what it was meant to do—making emergency rooms open to everyone without cost.”

“When I started practicing in 1976, I witnessed substantial economic discrimination against patients,” said Dr. Robert Bitterman, an emergency physician and attorney who advises hospitals facing EMTALA investigations. “EMTALA largely changed the very bad behavior that was going on in the 1970s and 1980s. It still happens occasionally, but this isn't common anymore.”

Despite the law's positive impact, there continue to be hundreds of complaints each year about allegedly inappropriate transfers that potentially endanger the lives of patients facing medical emergencies.

About 200 complaints a year are found to have merit. While that represents a tiny fraction of the more than 136 million annual emergency department visits in the U.S., there's broad agreement that the law continues to play an important role.

“If the law went away and there were no penalties, given human nature and financial pressures, the attitude would be, 'Who cares if the patient is unstable, get 'em out of here,' ” said Dr. Mark Langdorf, a professor of clinical emergency medicine at the University of California at Irvine who co-authored a new study on EMTALA enforcement.

The law's failure to finance its mandate is still widely resented by hospital leaders and physicians. “Hospitals are required by law to provide services, regardless of ability to pay,” said Chip Kahn, CEO of the Federation of American Hospitals, who helped draft the law as a staffer for then-Sen. David Durenberger of Minnesota. “But at the end of the day, those services have to be funded.”

Experts say there are a variety of reasons why violations of the law continue to occur. Factors include pressure on hospitals to improve their finances, poor staff training, flawed systems and processes, communication mishaps, growing challenges in getting specialty physicians to be on-call to the ED, and a lack of inpatient beds and community resources for serving mentally ill patients.

“Part of it is failure to follow policies and procedures, part is lack of education of medical and nursing staff,” Bitterman said. “Some hospitals just want money and are reluctant to change their ways.”

“Hospitals take seriously their EMTALA responsibility and other responsibilities to their patients,” said Tom Nickels, executive vice president of the American Hospital Association. “Unfortunate and isolated cases result from a breakdown in communication. ... There always will be opportunities to improve communications, processes and care.”

The impetus for EMTALA was an epidemic of patient transfers that were widely seen as inappropriate and dangerous for patients, including pregnant women in labor being turned away from emergency rooms. Studies showed that in the early 1980s, there were about 250,000 transfers a year from private hospitals to public or Veterans Health Administration hospitals.

Nearly 90% were for economic reasons, with 24% of these patients unstable at the time of transfer. Their mortality rate was triple that of other patients. In Chicago during the 1980s, 89% of transferred patients were black or Hispanic, according to a study published in the New England Journal of Medicine.

Public anger peaked after CBS' “60 Minutes” in 1985 broadcast tapes of phone conversations between a referring physician at a Dallas-area private hospital and officials at public Parkland Memorial Hospital, which was being asked to accept an unstable female patient. Parkland balked.

“Don't give me all that crap. She does not have any insurance, the hospital does not want to take care of her, OK?” the doctor attempting to make the transfer said. “This is a private, capitalistic, money-making hospital. They're on my back to have her transferred.”

Enforcement, which started slowly, gained momentum after Congress amended the law in 1989 to require facilities with specialized services to accept transfer patients. Over the years, the law became a basic feature of hospital and physician practice.

“EMTALA is completely embedded in the way hospitals operate,” Kahn said. “When a person is sufficiently in need of care, the first question is, 'What services do we need to provide to make you stable?' Finances are second.”

Indeed, Republican politicians who normally oppose government mandates have pointed to EMTALA when downplaying the need for federal health insurance expansion. Long before Obamacare, the law served as a safety net to ensure that people didn't die in the street. “I mean, people have access to healthcare in America,” President George W. Bush said in 2007. “After all, you just go to an emergency room.”

But EMTALA is no guarantee of appropriate emergency care. From 2002 to 2015, the CMS conducted 6,035 investigations of EMTALA complaints against hospitals and physicians—an average of 431 a year, according to a new study in the Western Journal of Emergency Medicine. The CMS found violations in 2,436 of the complaint cases it surveyed in conjunction with state agencies—an average of 174 a year.

To keep their Medicare certification, hospitals found in violation must submit a corrective plan, which the CMS reviews and approves. The agency then forwards those cases to the OIG for possible civil monetary penalties.

Of the cases referred to the OIG from 2002 to 2015, 192 resulted in settlements, including eight by physicians, according to the study. The most common citations were for failure to screen (75%) and stabilize (42.7%) for emergency conditions. Patients were turned away from hospitals for financial reasons in 15.6% of cases.

David Wright, a CMS deputy regional administrator who has handled EMTALA cases for more than 20 years, said most violations involve hospitals refusing to accept appropriate transfers from facilities that lack the capability to screen and stabilize the patient's emergency condition. “It's either an individual action or it's something driven by resource constraints hospitals face,” he said.

Many EMTALA violators do not receive fines and those cases are not publicly reported by the OIG, said Sandra Sands, a senior attorney with the OIG who has been handling EMTALA cases since 1989. “The cases we report on the Internet are among the worst cases, but they aren't the only bad cases,” she said. “We don't have the resources to pursue every case.”

Settlements in 2014 and 2015 included two cases where the patients died, according to the OIG. A settlement in December by Lake City Medical Center in Florida, an HCA facility, involved a patient who a hospital staffer determined did not need immediate medical attention. Police were called to escort the patient out of the ED even though she had vomited and complained of arm pain. She was taken to another hospital where she was placed on a ventilator in the ICU and diagnosed with bacterial meningitis.

Lake City Medical Center self-reported the case. Corrective action included staff termination, EMTALA education for all ED and registration staff, and training for the hospital's senior managers and nursing supervisors, according to a hospital spokeswoman.

In October 2014, the DCH Medical Center in Tuscaloosa, Ala., paid $40,000 to settle a case involving a gunshot victim, for whom the emergency physician called the on-call general surgeon to help. According to the OIG, the surgeon said he was busy performing previously scheduled elective procedures. No other surgeon was available.

After waiting two hours, the patient died without having received an evaluation or stabilizing treatment. The hospital declined to comment on the case, saying there is pending civil litigation.

A number of cases reported by the OIG involved patients with psychiatric emergencies. Between 2011 and 2014, the OIG reported fining five hospitals for such violations, including a $180,000 settlement in 2012 with Duke University Health System, Durham, N.C., for allegedly failing to accept five transfers of patients with unstable psychiatric emergency conditions.

Dr. Marc Futernick, president of the California chapter of the American College of Emergency Physicians, said lack of EMTALA enforcement in psychiatric emergency cases is a big problem. His ED often holds psychiatric patients for many days because psychiatric units at many Los Angeles-area hospitals conduct financial screening and won't accept patients for stabilization who are uninsured or on Medi-Cal. “You can't send these hospitals a patient without insurance,” he said.

A growing issue in recent years has been the refusal of many physicians to accept emergency on-call duty, particularly in specialties such as trauma surgery, orthopedics, ophthalmology, neurosurgery and hand surgery. Hospitals are required to have appropriate specialists available to screen and stabilize ED patients. But Bitterman said specialists increasingly avoid call panels because many emergency patients are uninsured or underinsured, ED calls disrupt their private practice schedule, and they don't want to be summoned in the middle of the night.

Despite these failures, even critics acknowledge EMTALA has changed hospital and medical culture for the better. A case settled by Santa Rosa (Calif.) Memorial Hospital for $50,000 in December illustrates how the law has heightened awareness and spurred hospitals to correct serious problems in how they handle patients in emergencies.

In September 2011, Santa Rosa, a part of St. Joseph Health System, allegedly failed to respond when notified several times that a homeless man who had just been treated for alcohol withdrawal and discharged was lying on the edge of the hospital parking lot, according to the OIG. The man, identified in news reports as Michael Torres, was later found dead of acute bacterial pneumonia.

The hospital conducted a full review of the case and offered to share the information with Torres' family. In a letter to the community, the hospital's then-CEO, Kevin Klockenga, admitted his organization “did not act as expeditiously as we could have to obtain ambulance assistance.” The hospital subsequently retrained staff to improve policies and processes for getting needed assistance to people in distress on the hospital's grounds, conducted mock drills, and consulted with local social-service agencies to better address the needs of homeless people.

Klockenga wrote to the family to “express our heartfelt sorrow over the death of Mr. Torres and vow to improve our own processes, as well as take a leadership role in improving care for the homeless in our community.”

“People's lives are being saved” by the law, said the OIG's Sands. “When a hospital calls and says, 'I need you to take care of this patient,' hospitals say 'yes' because they realize that otherwise, they would be violating federal law. The statute makes a very big difference every single day.”

Correction: The caption on the photo above has been updated to indicate that President Ronald Reagan signed the Consolidated Omnibus Budget Reconciliation Act containing EMTALA legislation on April 7, 1986.