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The EMTALA Paradox

    The federal government's expansion and enforcement of the Emergency Medical Treatment and Labor Act (EMTALA) is actually diminishing the very access it was intended to promote, according to a new article in the November issue of Annals of Emergency Medicine.

    The author, Robert Wanerman, JD, MPH, a health law attorney at Reed Smith LLP, in Washington, D.C., points out that since Congress enacted EMTALA in 1986, it has expanded the scope of the law five times, often without clear guidance. The result has been a massive regulatory burden for already overwhelmed hospitals and physicians, which makes it even more difficult for them to comply. It also has made aggressive enforcement a priority in the past four years, with more money being collected in penalties in 2000 than in the first 10 years of the statute's existence, Mr. Wanerman wrote.

    The stepped up enforcement of EMTALA comes at a time when hospital emergency departments are facing overwhelming volumes of patients with fewer resources to meet their legal obligation, noted Robert A. Bitterman, MD, JD, of Carolinas Medical Center in Charlotte, NC, in an accompanying editorial in this issue.

    Since EMTALA was enacted, emergency department visits in the United States have surged from 85 million visits per year to nearly 110 million visits per year, while more than 550 hospitals and 1,100 emergency departments closed, along with many trauma centers, maternity wards, and tertiary referral centers, according to the editorial. Dr. Bitterman reported that 90 percent of hospitals have saturated their capacity for treating patients, primarily because of the lack of inpatient critical care beds and the nurses to staff them. Ambulance diversion is rampant, emergency department waiting times have increased 33 percent, and the number of people who leave the emergency department before being seen has tripled in some areas of the country.

    “EMTALA is not the sole cause of these events, but it is a significant contributing factor,” said Dr. Bitterman. “EMTALA is also a prime factor contributing to the decline of physician specialists willing to serve on a hospital emergency department's on-call list.”

    Although EMTALA requires hospital emergency departments to provide care to everyone, it does not guarantee payment for the medical services provided, these experts noted. Many medical specialists avoid on-call duty because it is not usually a source of paying patients, according to the article. To do this, they relinquish their hospital privileges or decide to operate exclusively in their offices or in ambulatory surgery centers.

    The other reason specialists say they are resigning from hospital staffs is the risk of fines under EMTALA that can go as high as $50,000 if they do not respond to emergency department calls promptly. Many specialists report that it can be difficult to meet this requirement if a specialist has to be on call for two hospitals on the same night and each demands that the physician come to the hospital to treat a patient.

    Dr. Bitterman explained that EMTALA was Congress' solution to the lack of health care for the indigent and uninsured, but the law is seriously flawed and is contributing to the closure of emergency departments and reductions in access to emergency care.

    Through EMTALA, the federal government has forced health care providers to assume financial responsibility for taking care of the poor under the threat of punitive fines, additional civil liability, or loss of provider participation in the Medicare and Medicaid programs, Dr. Bitterman added.

    “The government's solution was all stick and no carrot,” he said. “The law provides no incentive for physicians to participate in what I consider a nationalized health system. That has resulted in emergency departments becoming increasingly unable to provide specialty medical care to all of their patients.”

    According to Mr. Wanerman, hospitals that attempt to bolster their on-call capabilities may face a two-edged sword. By increasing the obligations of on-call physicians to comply with EMTALA, some hospitals have found that this has resulted in a net exodus of physicians available to take call, he said.

    “EMTALA represents an anomalous right to emergency health care, a giant unfunded government mandate,” said Dr. Bitterman. “Instead of government micromanaging emergency care, it is time society addresses fundamental problems facing our access to care: the substantial and accelerating amount of uncompensated care provided by physicians and hospitals. This will require adequate funding, qualified liability immunity, or some other form of consideration.”

    © 2003 Lippincott Williams & Wilkins, Inc.