III. EMTALA: What it Is and What it Means
As the American health care system entered the 1980s, the passage and implementation of Medicare largely had succeeded in ending hospital segregation by race, but it had not erased the dual system of care established by Hill-Burton and other policies intended to fund hospitals rather than primary care efforts. Nor had Congress equalized the funding provided to Medicare and Medicaid providers. Thus, hospitals developed a new form of discrimination--discrimination based on insured status, with private insurance being most favored, Medicare second, Medicaid a distant third, and the uninsured last. The practice of rejecting either un- or under-insured patients unable to pay for services came to be known as “patient dumping.”
At the time of EMTALA's enactment, twenty-two states had some form of statute or regulation aimed at requiring hospitals to provide emergency care to patients in need of emergency medical treatment. However, most policies were not enforced or had no teeth, nor did the common law impose a duty to treat. It was estimated that each year, 250,000 emergency room patients were “transferred or discharged from hospitals because of an inability to pay for necessary medical services.” Further, “[a] disproportionate number of the transferred patients were minorities, and the delay in receiving appropriate medical care caused significant increases in complications and mortality” among those transferred.
Accordingly, Congress decided to address the problem by creating federal sanctions that could be enforced against non-compliant hospitals. Until Congress acted, nothing in federal law had prohibited hospital emergency departments from transferring patients with no or less-favored forms of insurance to county hospitals or other public institutions that would not or could not afford to refuse to see them. The enactment of the Emergency Medical Treatment and Active Labor Act (EMTALA) changed that state of affairs.
A. What EMTALA Is
On April 7, 1986, President Ronald Reagan signed the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) into law. COBRA was a large budget bill that, among other things, contained the provision that required employers and insurance companies to make insurance coverage available to employees who lost their jobs, or would have lost coverage for some other reason, at the employee's own expense. More importantly, COBRA contained the four pages of the Emergency Medical Treatment and Active Labor Act (EMTALA) that sought to put an end to patient dumping.
EMTALA requires all hospitals that have Medicare provider agreements and an emergency department to provide medical care to anyone who comes to the emergency department without regard to their ability to pay for the care they receive. Specifically, all individuals (documented or undocumented) who present to the emergency department must be given a screening examination, and if an emergency medical condition or active labor is discovered, the hospital must “stabilize” the individual, even if stabilization requires the help of on-call physician specialists.
While WhileWhielWhthere is no right to health care enshrined in the United States Constitution, EMTALA created a federal right to receive emergency medical treatment. Further, it is important to note that EMTALA differs from the Affordable Care Act in that it specifically requires that, in certain circumstances, a hospital must treat certain patients. In contrast, the ACA requires all citizens and legal residents of the United States to obtain health insurance or face the prospect of paying a fine or penalty. There is no concatenate requirement that those possessing the required insurance be treated wherever they might present. Nor is there even a guarantee that all persons will be able to obtain the required insurance, despite the detailed requirements that the federal government establish exchanges or make sure that the states do so and provide subsidies to those who cannot afford to purchase insurance.
The right created by EMTALA is far less contingent. Hospitals that fail to comply with EMTALA's requirements can be fined, sued by other hospitals who assert that they have suffered a financial loss as a result of patients having been dumped on them, or sued in tort by any individual who suffers harm as a result of the hospital's failure to comply. However, EMTALA does not provide a cause of action against physicians. The Center for Medicare and Medicaid Services and, when racial discrimination is a potential issue, the Office of Civil Rights at the Department of Health and Human Services are charged with enforcing the requirements of EMTALA.
EMTALA became law without any particular fanfare, obscured as it was within the enormous COBRA bill, and yet it has been hailed by some as ranking with the Civil Rights Act of 1964 as one of the most important anti-discrimination statutes ever enacted. Indeed, the limited right to emergency health care established by EMTALA has been internalized by most Americans. The requirements imposed by EMTALA have become such a well-accepted part of the medical landscape that in a speech in Cleveland, Ohio on July 10, 2007, then-President George W. Bush assured his audience: “[P] eople have access to health care in America. After all, you just go to an emergency room.” Here, then, we have consensus on a right to health care: in the United States, if anyone needs medical care, they can go to an emergency room and get it.
B. What EMTALA Means
Notwithstanding the superficial approval it appears to enjoy across the political spectrum, EMTALA is not without its critics, at least among those who understand its consequences. EMTALA always has been an unfunded mandate. It may not have created the hospital practice of cost-shifting, but it certainly exacerbated the practice of charging higher rates for care provided to patients insured by private insurance in order to pay for the care provided to uninsured patients. It is estimated that in 2009, cost-shifting to cover emergency care provided to uninsured patients added $1,100 to the annual cost of a family health insurance policy --and this, of course, was in an environment in which insurance companies still were permitted to cherry-pick their clients, denying coverage for patients with pre-existing conditions.
In addition to the costs of providing care, EMTALA imposed additional costs on hospitals and doctors for tort liability arising out of emergency medical treatment. EMTALA does not provide a cause of action against physicians; however, it does not protect physicians who provide charity care from being sued for medical malpractice. Accordingly, hospitals have found it costly to maintain a roster of on-call specialists because of the high cost of medical malpractice insurance premiums.
Indeed, EMTALA may be responsible for a variety of hospital advertisement campaigns. Because the average hospital has had to invest significant resources to equip and staff an emergency department capable of meeting the requirements of EMTALA, hospital administrators then require that emergency department to be busy in order to recoup some of the sunk costs. Therefore, some hospitals have attempted to attract well-insured patients to their emergency departments by promising to provide care in less than thirty minutes--better service than you might get with your primary care doctor. Rather than turning Medicaid recipients and uninsured patients away in order to maintain a profitable mix of payors, hospitals have chosen simply to spend more resources trying to attract more privately-insured patients to tilt the payor mix toward profitability. However, inappropriate emergency department usage only further contributes to the cost and inefficiency of the overall system.
Finally, one of the most critical consequences of EMTALA may be that it has ultimately made health disparities and the problems with our fragmented health system an issue for most, if not all of us. In his most recent book, Paul Starr describes what he calls “the American health policy trap”:
[A] system of employer-provided insurance that conceals its true costs from those who benefit from it; targeted government programs that protect groups such as the elderly and veterans, who are well organized and enjoy wide public sympathy and believe that, unlike other claimants, they have earned their benefits; and a financing system that has expanded and enriched the health-care industry, creating powerful interests averse to change.
Arguably, EMTALA works against the trap because it is not targeted at any particular, sympathetic, well-organized group. It was intended primarily to benefit the indigent, but its benefits are available to anyone. Moreover, it challenges the powerful health care industry, forcing hospitals to treat patients that have no means to pay for their care. This does not mean that hospitals have not pushed back or become more ingenious in their methods of assuring a profitable mix of payment streams for the care provided in their emergency departments. Rather, their chief method of paying for uncompensated care provided pursuant to EMTALA requirements has been to shift costs to insured patients. This method thereby threatens the third leg of the trap as defined by Paul Starr: the system of employer-provided insurance that conceals its true costs from those who benefit from it.
Throughout much of the last fifty years, the tax break given to employers that provide health insurance to their employees has led to employers paying a greater share of health insurance premiums than they might otherwise. Thus, consumers were insulated from increases in the costs of services that drive up the cost of premiums for employers. However, over the twenty-five years of EMTALA's existence, the cost-shifting resulting from the mandate for universal emergency room care has worn away that insulation. When health care costs rise significantly faster than the rate of inflation in a recessionary economy, employers are forced to shift those costs to employees who therefore cease to be so wholly insulated from the real costs of their care. As a consequence, while “COBRA coverage” was believed to be the much more noteworthy legislative achievement at the time of its enactment, today it is almost useless because so few unemployed Americans can afford to pay the premiums for continuing coverage.
C. Responses to EMTALA's Consequences
EMTALA's significance is evidenced in part by the number and variety of responses engendered by its costs and requirements. Without attempting to assemble an exhaustive catalog of those responses, it is worth a brief examination of a few of them in order to have some context for the reforms enacted as part of the Affordable Care Act. One type of proposed reform is intended to reduce the costs of EMTALA by limiting what hospitals must do to comply with the law and by limiting state tort liability for doctors who provide free care pursuant to EMTALA's requirements. Another reform tactic would reduce inappropriate emergency department usage by educating patients and providers about alternatives. However, the most comprehensive response to date has been the Affordable Care Act, which includes a panoply of remedies to address EMTALA's unfunded mandate.
1. Tort Reform
Only a few years after the enactment of EMTALA, President George H.W. Bush began warning Americans of the menace posed by tasseled-loafer-wearing trial lawyers. While EMTALA was not the sole reason why doctors and hospitals joined with business in seeking tort reform, it is more than a mere coincidence that tort reform became an issue in virtually every state in the 1990s, with most choosing to limit recoveries in medical malpractice and other personal injury actions in some form. Indeed, even though tort reform is no longer a major political issue in most states, the potential for tort liability resulting from EMTALA continues to spawn legislation.
Again, it is worth noting that only hospitals, not doctors, may be sued under EMTALA. However, as case law has developed, some courts have found that EMTALA imposes a duty on treating physicians that, if breached, can result in tort liability under state law. In 2004, for example, Ohio extended its laws granting immunity to volunteer health care providers, including non-profit health care referral systems intended to assist the uninsured in getting care. This occurred despite the fact that most of those covered by the protections of this law arguably would have been immune from suit under the federal Volunteer Protection Act of 1997. Eight years later, the Ohio Senate debated Senate Bill 129, which would have provided immunity from suit to medical professionals who provide emergency treatment specifically pursuant to the requirements of EMTALA.
However, these types of reforms only address a small portion of the cost problem. Indeed, if doctors are made more willing by favorable tort law to treat uninsured patients pursuant to EMTALA, then the aggregate cost of uncompensated care might actually increase. There still remain the problems of inappropriate emergency department usage and too many uninsured patients requiring expensive care who must be treated as a result of EMTALA.
2. Managed Care
As the Medicaid program has grown, states have sought to reduce costs through a variety of measures, including relying on managed care providers to administer much of the delivery of Medicaid-funded services. In exchange for connecting Medicaid patients with a panel of doctors willing to accept Medicaid payment rates for their services, including specialty care, managed care providers receive a capitation payment or a monthly payment for each Medicaid patient enrolled in their plan. As a result of this arrangement, managed care plans have good reason to seek to control emergency department usage, keeping enrollees away from the emergency department.
However, Medicaid patients have found those thirty-minute emergency department guarantees just as enticing as patients holding private insurance. EMTALA requires that anyone who presents at the emergency department to be screened and stabilized. By the time the screening is completed, many physicians would rather treat the patient than try to make a more appropriate referral. Many Medicaid recipients have begun to use the emergency department as their source for primary care because Medicaid imposes virtually no co-pays on recipients and because it is often easier to find a hospital emergency room than a neighborhood clinic or a primary care provider with a timely open appointment. Because the emergency department is the most expensive place in which to receive primary care, appropriate emergency department usage has become an acute concern for state Medicaid agencies.
Medicaid managed care plans in Ohio have begun implementing their own intensive case management programs to build relationships between primary care physicians and their patients. If a patient has lived most of his life without having a primary care physician because of limited access to one, he is not likely to change his behavior upon receiving his first Medicaid card. Because the plans have some control over the doctors, they can encourage them to inform patients of alternatives to the emergency department, facilitate referrals, schedule next-day appointments and take other steps to narrow the “convenience gap” between the primary care physician and the emergency department. In this way, private sector Medicaid managed care plans that contract with the states can be seen as trying to fill the gap created long ago by federal funding that favored the creation of hospital infrastructure over primary care and community clinic infrastructure.
This is both a lesson and a limited victory. The lessons learned from educating patients and providers and encouraging both to try to avoid inappropriate emergency department usage can be carried over into the world of private insurance, but will have no effect on the uninsured population. Absent a viable free clinic system, the only place where the uninsured can count on reliably receiving treatment is the hospital emergency department. Thus, it seems that the only way to compel the uninsured to obtain health care in the most appropriate venue is to provide him or her with insurance.
