EMTALA
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FAQ: When can we send a patient to another hospital by private vehicle under EMTALA?16 December 2011
Under EMTALA transfers are any time the patient leaves the facility unless they are deceased or leave without permission. EMTALA cases often arise when the patient is moved, sent, or transferred to another hospital for either a higher level of care or for testing or care not available at the sending facility by private vehicle.
EMTALA Appropriate Transfer Elements
A medically appropriate transport under EMTALA is one where: there is a valid transfer certification; there is advanced acceptance; the patient consents; transport is by appropriate medical vehicle; there are appropriate medical personnel in attendance; there is appropriate life support equipment; and the medical record is sent with the patient.
Private Autos Don’t Hack It
If you do get the signed refusal, remember that you must comply with all of the other elements of an appropriate transfer.
Private vehicle movement is always a risk, so make sure that you have warned the patient against any delays or diversions in the trip and pay attention to documenting every element of compliance.
As a last caution, transferring pregnant women by private vehicles is a recipe for disaster.
Read MoreEMTALA FAQ: Who can complaint about an EMTALA violation?19 November 2011
Anyone can file a complaint for an EMTALA violation against a hospital with the state hospital licensure folks or the federal CMS office. If found in violation, CMS will require them to file and successfully complete a plan of correction (allegation of compliance). Following that, the Office of Inspector General can fine them up to $50,000 per patient incident. If they fail to come into compliance, the hospital can be removed from the Medicare program, which effectively renders them bankrupt. If CMS finds that a physician violated EMTALA, in the fine process, OIG can also fine the physician or bar them from working anywhere that receives federal money. The money goes to the government.
In addition, any patient or patient legal representative or heir, depending on the state law for who has standing, can file a civil suit for violation of EMTALA against the hospital. If a physician is also to be named as a defendant, they must be sued under state malpractice law, not EMTALA, although violation of EMTALA may be alleged as evidence of malpractice since it is generally the prevailing law that shapes standard of care. Any money recovered goes to the patient.
In a little used aspect of the law, a hospital harmed by another hospital’s violation of EMTALA can file suit against the violating hospital — such as, hospital A refuses care to patient A because they are uninsured and Patient A goes to hospital B where they are admitted and run up substantial bills which they cannot pay. Hospital B can sue and recover payment from Hospital A for Patient A’s bills. Any money recovered goes to Hospital B. Hospital B can also seek an injunction against Hospital A to force them to comply with EMTALA.
Read MoreMy First Predictions For 2012: Not Good08 November 2011
Hospital Emergency Departments and the men and women who staff them are quickly coming to the end of their stamina and wits as they fight every day to get ahead of the hoards of patients descending on them. While a few are making temporary gains, the 
prospects for 2012 and beyond are looking grim.
The last GAO study http://www.gao.gov/new.items/d09347.pdf showed serious delays in all classifications of patient care in the Emergency Departments. Today, that study represents the “good old days” before the economic crisis that has severely cut into the ranks of the insured patients and has forced hundreds of thousands of patients onto the Medicaid rolls. In two years, Obamacare promises to move up to 30 million new patients into insured or Medicaid coverage, but recent CBA figures show that most will go to Medicaid.
The interesting concept is that these folks will have a primary care physician and won’t need to go to the Emergency Department as often, so it will cut costs and pay for all of those new people. Well, someone forgot to factor in the need for extra physicians, extra nurses, and access to medication – and, oh yah, that needs to be available on a 24-hour basis.
But that’s ok, we’ll just expect all of the doctors in the country to just see more patients on Medicaid.
As an incentive we can follow the California approach by cutting average reimbursement for 2012 to $11 per office visit. That should make doctors willing to take on more Medicaid patients right? After all, just because it costs the physician $30-$50 per office visit in overhead shouldn’t be a deterrent because they get the satisfaction of serving the greater good.
And California suggests that the ED collect a $50 co-pay before they see patients as a deterrent from excessive ED use – great idea except for EMTALA (you know that pesky federal law that has been in effect for 25 years). They must be on the same wave length as Washington State (see prior article).
In my millennium predictions for 2000, I wrote that ED physicians should get a job skill other than medicine they like that will support their families, move to a small town, keep up their medical license so their family will be able to access medical care, and be prepared to quit when the government made medical practice impossible. I probably should have also told them to pay off their mortgages on an expedited basis, but I missed that one. Those recommendations still stand.
So, what do I predict as the first of my 2012 expectations?
And my final word of advice for those sending their kids off to college – Veterinary Medicine. You still end up with large student loans, but you get paid $50 -$75 for a simple office visit (5-7 times what a physician gets paid in the Medi-Cal program), you get paid up-front, and for the most part folks make appointments, there is no ED call, and most of them appreciate your service. You also get paid just to babysit the animal (boarding becomes a good thing).
Read MoreDelay Finding Psych Bed Leads To Patient Death02 November 2011
A lawsuit has been filed against hospital ED personnel and Security guards after a patient with pyschiatric issues ended up dead at Cape Fear Valley Hospital in April. Published reports indicate that the death followed a choke hold by security personnel attempting to control the patient who became difficult to control as attempts to find an open psych bed in the area drug on.
The suit, filed by the mother of the deceased in September, alleges that no meaningful attempt was made to resuscitate the patient once it was discovered that he was unresponsive.
Local police were apparently not notified of the death until the circumstances were brought to their attention in September by the State medical examiner. The local media indicate that the police are now investigating the case as a possible negligent homicide. There is no indication whether CMS has instituted an EMTALA investigation or whether The Joint Commission has instituted an accreditation review.
The local story can be found at http://m.fayobserver.com/articles?path=/articles/2011/10/29/1133423
Read MoreEMTALA — IT WAS NOT REAGAN16 September 2011
Bizarre Political Spin Being Laid on EMTALA
At first I thought it was just one weirded-out blogger to make this allegation about EMTALA, but it now appears to be to be a spin-agenda as more left-wing extreme bloggers have picked up the chant – EMTALA was a Reagan conservative law.
First, a confession: I am so old, I helped God get the first patent on dirt. I was here 25 years ago when EMTALA was passed and –whether good or bad — it was NOT a Reagan initiative.
LETS GET THIS STRAIGHT
Fact 1 – Yes, Ronald Reagan was in office when this bill passed.
Fact 2 – The bill was passed by a Democrat-controlled Congress.
Fact 3 – The bill was sponsored by Fortney “Pete” Stark, the powerful Democratic chair of the Medicare Committee, and backed by Ralph Nader’s Public Citizen group along with the National Organization of Women.
Fact 4 – The bill was inserted in the Consolidated Omnibus Budget Reconciliation Act – a monster “Veto Proof” bill of more than 2200 pages that lumped all of the government spending in a bill that Democrats designed to be impossible for Reagan to veto.
Fact 5 – The EMTALA provisions were not in the Senate version of the COBRA bill, and just before the Conference Committee session, it was not expected to pass through to the final bill.
Fact 6 – At the Conference Committee, and literally behind closed doors in the dark of night, Stark managed to insert the EMTALA bill into the final version that Congress had to pass in order to find out what was in it. He argued it was “budget neutral” – meaning it did not cost anything to the budget, and in modern terms that meant it was an unfunded mandate.
Fact 7 – The bill was “veto proof” and Reagan signed it.
Virtually no one knew that EMTALA was in the law. It was 4 pages, back behind Agriculture and indexed under Miscellaneous Provisions.
SURPRISE, SURPRISE!
Health care organizations were totally occupied by much more “important” provisions of the COBRA law – continuation of insurance benefits and the new payment scheme from Medicare – the Prospective Payment System. Prior to passage, the only organization to have actively opposed it at hearings had been the newly recognized specialty of Emergency Medicine, when ACEP testified against original provisions that would have sent physicians to federal prison if they violated the law.
If it had passed in the original form, the only place we could now get healthcare would be Club Fed in Levinworth, KS.
Stark told people that the law only regulated the practice of “dumping” uninsured patients from private hospitals to public hospitals. After all, “any expenses could easily be assumed by the hospitals that were getting fat on the huge Medicare payments they received”.
Very valid horror stories told of patients being turned away because they had no money, with moms and babies and the uninsured dying, so opposition to EMTALA was like a vote against motherhood and apple pie (both to later be considered politically incorrect).
BEGINNING OF GOVERNMENT CONTROL
What EMTALA was – as I warned then – was a guaranteed access to healthcare law and a means of regulating physicians through their hospital membership. It was the beginning of overt control of healthcare in the US – the covert beginning had been the commencement of Medicare under Lyndon Johnson.
DID EMTALA CAUSE THE ON-CALL CRISIS?
You may also hear that the EMTALA law caused today’s problem with physicians being unwilling to respond to call. Wrong. In 1986, emergency departments throughout the country were screaming about the on-call crisis. EMTALA did not solve the problem – it was only a temporary and imperfect band-aid – but the problem was there before EMTALA.
DID EMTALA CAUSE HOSPITALS TO CLOSE?
Another common legend of EMTALA is that it closed hospitals. While true, it is a distortion – the Health Care Financing Administration (they changed their name to CMS because their reputation was so evil) used EMTALA to close hospitals. These were the waning days of the Heathcare Planning mentality that government bureaucrats could limit hospitals and technology and plan healthcare delivery to the masses. Actually, maybe it never went away.
When I asked a top HHS official about the likely impact of the EMTALA law and then-pending regulations, he told me that HHS expected EMTALA to close hospitals (a good thing in his mind). When I asked about the vast majority of the country that would lack hospitals, I almost had an AMI when he responded, “That’s their problem for living beyond the Beltway.”
AN UNEXPECTED TWIST
While EMTALA worked as expected in closing hospitals and roping physicians into government control, there was one unexpected glitch. The healthcare planning crowd was eagerly pushing the new solution – Managed Care and HMO’s. They were supposed to reduce costs by promoting healthful living, preventative healthcare, and keeping people out of Emergency Departments. But when they started banning people from ED’s, EMTALA boomeranged on them and forbid their restrictive practices. Interestingly, the most troublesome of managed care on this issue is now the Medicaid program, also administered by CMS.
BOTTOM LINE
While radical left-wing bloggers want to smear Reagan with the EMTALA label to irritate their right-wing enemies, I would just like a little accuracy in the whole EMTALA thing.
Pete Stark has several regulations named after him, but the fact is that EMTALA should have been given the nickname Stark 1, because it was probably the biggest impact he had on healthcare. Stark, in the House from the San Francisco area since 1972, was quoted as saying on more than one occasion: “Medicare is what I say it will be.”
Read MoreNew EMTALA Book Released18 March 2011
This book features more than 270 pages of some of the most frequently asks questions by visitors to the Medlaw.com website with my answers, observations, tips and opinions updated through January of this year.
For more information on the book, a look at the full table of contents, and to order the book, please go to www.medlaw.com/faq.htm.
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