EMTALA: A deeper dive
EMTALA was a great step forward in the safety and equality of medical services. One of my favorite parts of my job is treating everyone with equality whether they are homeless or the prince of Dubai. I love that I never have to worry about individual reimbursement from patients I am treating, and I love being the safety net for society that other countries do not have.
“Through EMTALA, emergency medicine retains the ethos of “anyone, anything, anytime.” The ED is open every single hour of every day – for everyone. EMTALA creates the legal basis for this commitment.”
Unfortunately this universal access to care, as madated by EMTALA, does not come without drawbacks or potential unintended consequences, such as…
Who pays for this?
Yeah, it’s not going to be the government.
The Problem of Lack of Funding (Unfunded Mandate)
EMTALA is widely characterized as an unfunded government mandate for care, which shifts the financial burden of insufficient access to care onto emergency departments (EDs) and their clinicians.
Massive Uncompensated Care: The law mandates screening and stabilizing treatment regardless of the patient's ability to pay, meaning hospitals and physicians must assume the financial responsibility for caring for the poor under threat of punitive action. The aggregate amount of uncompensated care provided in U.S. emergency departments has exceeded $50 billion annually (https://www.emra.org/books/advocacy-handbook/emtala-story).
Inadequate Reimbursement: Even when patients have coverage, the funding may be insufficient. Medicaid care is often severely underfunded, and reimbursement rates frequently do not cover the overhead costs of providing care (https://www.acep.org/life-as-a-physician/ethics--legal/emtala/emtala-fact-sheet).
Potential Financial Consequences
The financial and operational pressures resulting from the unfunded mandate contribute to several other problems within emergency medicine:
Noncompliance with EMTALA carries significant monetary consequences, including Civil Money Penalties (CMPs) against hospitals and providers.
This increased financial pressure could lead to hospital and ED closures due to the high burden of under/uncompensated care. Those hospitals that see the highest proportions of these cases are likely in low-income and underserved areas.
For hospitals that don’t close under increasing financial burdens could cut services, reduce beds and services, which could lead to worse patient care for all patients.
Unique Challenges for Vulnerable Populations
While EMTALA protects universal access, it creates unique difficulties for specific populations, particularly regarding stabilization and discharge.
Psychiatric Emergencies: Due to a lack of facilities adequately equipped to treat mental illness, patients needing inpatient psychiatric care often face extremely long boarding times that can result in substandard care and significantly adds to the overcrowding issue.
“Discharge” Issues for Homeless Patients: EMTALA requires that patients be given a plan for appropriate follow-up care that is accessible. This is nearly impossible with patients facing housing insecurity.
Conflict with Reproductive Health Laws: Recent legal developments have created ambiguity where state laws restricting reproductive health care conflict with the EMTALA obligation to provide necessary stabilizing treatment. This is a complex issue that should be explicitly addressed in your hospital by-laws if a potential conflict exists.
Which brings me to the elephant in the room!
When tertiary care centers delay or refuse to accept transfers!
Often, I am caring for a patient who needs to be transferred due to a lack of specialty care and need for a higher level of care (according to the specialists and admitting teams at my community hospital). In these events, my MSE has revealed an EMC that, according to EMTALA, requires stabilization, which is “treatment as necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result” before discharge or transfer. In this very common scenario, I cannot discharge the patient, and I cannot admit the patient to my hospital that lacks the capability to further stabilize and care for the patient.
What to do? Ah, EMTALA says transfer!!!
Unfortunately, working in a chronically overwhelmed medical system in the Northeast, this is not an easy task and usually involves multiple phone calls. The first is to a screener, who is essentially employed to block “unnecessary” transfers, yet I won’t be picking up the phone to request a transfer if it wasn’t “necessary” by my MSE. After this, I usually play phone tag for hours, trying to get an accepting provider at another hospital that is likely at capacity. I sympathize with these providers and hospital administrators who have little to no incentive to take a patient in transfer.
Where EMTALA falls short is, while it mandates transfer if my hospital cannot care for the patient, it offers no incentive or payment for accepting institutions. This has been called “Reverse Dumping” and I will tackle that monster in my next post on EMTALA.
Bottom Line: Know the EMTALA mandates and stick by them, no matter what!
EMTALA was put in place to ensure access to care and stop “patient dumping” with stiff penalties (and even lawsuits) for violations, meaning you absolutely cannot discharge patients who are not stabilized with no likely deterioration of their condition or potential condition. That doesn’t mean vital signs stabilized; it means no foreseeable deterioration in the patient’s condition. If your screening exam tells you that you need to admit the patient for further work-up or care - DO IT!
If you can’t safely discharge — You must admit or transfer!
In the age of ultra-specialization, new highly-technical treatment options, and the coalescing of these specialties to single centers, it will not be uncommon to meet the standard of care and satisfy EMTALA, you will need to transfer a patient because your hospital lacks that expertise. If you find yourself in such a position, it will also not be uncommon for this task to be a monumental one, likely taking more time than it took to treat said complex patient requiring transfer. In this scenario, I suggest the following steps.
Document your discussion with whomever recommended tranfer and include specific language about the need for higher level of care. Make it matter-of-fact that you need to write down the exact reason for transfer to fulfill EMTALA criteria.
Don’t get off the phone with the specialist recommending transfer without discussing what to do if there is a delay or the patient deteriorates. Be proactive in seeking solutions.
Tell everyone involved in the patient’s care, including the patient! Tell the nurse, patient, family members, attending or supervising doctor, anyone and everyone who is caring for the patient. Make it clear that you are following EMTALA guidelines.
Document and timestamp every conversation or communication about admission or transfer. Write down when and who you spoke to about admitting the patient and their recommendations to transfer, as well as when you started the transfer process and how. Who did you call? When did you speak to someone or put in a request?
Update the patient (and family) regularly in non-judgmental terms. I say, “We are working on the safest and best way to transfer your care and are not there yet.” instead of “I called and they’re not answering/accepting/responding/etc.” Don’t play the blame game.
Follow the EMTALA guidelines for transfer - the accepting facility must have the capability to care for the patient and an accepting provider. Both must be documented (and you guessed it, time stamped).
Give a “warm hand-off” whenever possible. I like the SBAR method including clear communication about the patient’s condition, need for transfer, lack of capability at your facility, and language such as “I am concerned” that shows an urgent need for the tranfer to occur.
Work with your system (no matter how flawed) not against it. The time to change the process is not while you are trying to transfer a critically ill patient. Create or join a committee to discuss the process later.
Unfortunately, diseases and lawyers don’t care if there aren’t resources at your hospital or capacity at a transfer facility. Patients will deteriorate or go on to have that event (stroke, MI, etc.) that prompted the need for admission/transfer. You own that patient through the disposition. A dispo of “Transfer to higher level of care” is not the end. You must ensure that the patient won’t deteriorate during transfer and continue stabilization, to the best of your ability, until care is handed off to another, accepting provider.
This requires careful thought and planning for a potential delay in definitive care. Document and discuss advancing medical management, such as starting antibiotics or antiplatelets, while waiting for surgical/neurosurgical intervention. Ask questions of specialists as to what to do if deterioration or delay. This should happen on your first phone call with a specialist who is recommending transfer, as well as when you talk to a potential accepting specialist. Make a habit of documenting when and who you spoke with, as well as what to do if things go south.
