American College of Physicians: Internal Medicine — Doctors for Adults ®

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Emergency access is mandated—but without money

Copyright 2001 by the American College of Physicians-American Society of Internal Medicine.

By Phyllis Maguire

While legislation requires hospitals to provide basic access to emergency care, physicians say that the law lacks one critical element: any source of funding to pay for the care they must provide. That omission, they say, is helping drive physicians away from taking ER call.

Federal legislators passed the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986 in the wake of the newly implemented diagnosis related groups (DRG) reimbursement system. As hospitals realized that DRGs would eliminate funding that had allowed them to subsidize uncompensated care, some began refusing to give emergency treatment to indigent or uninsured patients or started "dumping" them on public facilities. The new law theoretically put an end to such practices.

Under EMTALA, emergency departments must screen all comers. They must treat a patient's condition until it is stable, or arrange a transfer to a facility that can, regardless of the patient's ability to pay. A hospital must also accept transferred patients if it can provide the specialized treatment patients need. And hospitals must maintain a list of on-call physicians who are available to treat emergency patients.

The act also requires hospital bylaws to define the responsibilities of on-call physicians and implement policies to guide emergency workers when a specialist is not available or when an on-call physician is not able to respond. Physicians providing emergency care—including those on call—who violate any part of the law are subject to a $50,000 fine and can be excluded from Medicare.

Critics say that the act is flawed on several fronts, however. First, they complain, it does not reimburse hospitals or physicians for this mandatory coverage.

"The cost of maintaining emergency services has never been accounted for in the American health care system," said Loren A. Johnson, MD, medical director at Sutter Davis Hospital in Davis, Calif., and president of the California chapter of the American College of Emergency Physicians. "It's all based on goodwill, and the care hospitals and physicians provide out of a sense of social contract and civic duty."

Physician groups such as the American College of Emergency Physicians are advocating for funds to pay for the universal EMTALA mandate. Among other solutions, they recommend restructuring Medicare's inpatient disproportionate share funding.

Critics also say that the law holds hospitals, not doctors, responsible for ensuring on-call coverage. In some cases, for instance, on-call specialists have refused to allow patients who needed their specialty services to be transferred to their hospital. The hospital was fined for violating the law, not the physicians.

"The construct of the law places the direct risk and responsibility on the hospital, and indirect responsibility on the medical staff," Dr. Johnson said. "If medical staff refuses to take call and be on a roster, we lose the service but it never gets reported."

Physicians don't get reported because emergency physicians do not rat out members of their own medical staff. Instead, they often "go vertical," Dr. Johnson said, calling their way up the chain of hospital administrators to find someone to lean on a specialist to appear.

As a result, few physicians get fined for EMTALA violations. According to a report issued by the General Accounting Office (GAO) earlier this year on the law's implementation and enforcement issues (see http://www.gao.gov/daybook/010622.htm), less than 30 physicians have been cited for violations since the law was passed 15 years ago. The same report claimed that the Centers for Medicare and Medicaid Services (CMS), formerly HCFA, investigates about 400 EMTALA complaints against hospitals every year and cites about half of them. From 1995 to 2000, the report states, the OIG fined more than 190 hospitals nationwide a total of $5.6 million for EMTALA violations.

Given the growing attention to the problem of on call panels, however, the regulatory aspect of the law may go into higher gear. "I keep hearing from CMS that significantly more on-call citations are in the pipeline," Dr. Johnson said.

But if that happens, the threat of running afoul of the law might further cut the number of physicians willing to take ER call. "Only those physicians who are doing their civic duty place themselves at risk," Dr. Johnson explained. "EMTALA may be a tool to enforce hospital and medical staff responsibility, but it is a perverse incentive for individual physicians to voluntarily take call."

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