Update on EMTALA Law

 

Randy Strickland walked into the ER at North Metro Medical Center burning with fever and trembling. He told the man and the woman who were staffing the triage desk that he was nauseated and felt like he needed to throw up. The emergency room was nearly empty. Randy was a volunteer at the Jacksonville, AR, hospital and hoped he would get home quickly.  But repeated visits by his wife, Mary, and son James to the triage desk didn't bring Randy any closer to getting care. Over the next 2 hours, he lost his ability to speak or respond to questions. His breathing became labored. Finally, on a trip to the bathroom, his legs buckled as he held onto Mary for support.  "I can't hold him up!" Mary yelled as she pounded on the wall that separated the bathroom from the triage desk, trying to summon the ER attendants.  When no help came, James picked up his phone and dialed 911. Could they take his dad to a different ER? he asks the operator, according to a transcript of the call.  "I'm sorry sir, my ambulance will not respond to a hospital," the operator responds. "Have you tried talking to them or anything?"  "It's just — I don't know what they're waiting for," James says.  After a pause, the dispatcher asks if they can get Randy out to his car in the parking lot, where paramedics could pick him up.  James and Mary wheeled Randy outside in a drenching rain and slid him into the back seat of their gray Toyota RAV4.

When the paramedics pulled up, Mary says, they knew immediately that Randy was too sick to be taken to another hospital. They took him back into the ER through an entrance used by ambulance crews, and the hospital's medical teams finally jumped into action. But by that time, Randy was critically ill.

 A team of doctors and nurses struggled for about an hour to save him.  Finally, a doctor came to speak with Mary.  "Is he gone?" Mary asked.  "He is, but we're going to do CPR until you tell us to stop," he told her.

Randy Strickland died after North Metro failed to follow standards of care established by the federal Emergency Medical Treatment and Labor Act, or EMTALA, records show. Investigators cited the hospital for failing to keep adequate records on Randy and for failing to do an appropriate medical screening exam.  North Metro Medical Center and its parent company, Allegiance Health Management, based in Shreveport, LA, were found guilty of EMTALA citations.

Though EMTALA has been on the books for more than 30 years, hospitals are still violating it hundreds of times a year, sometimes with devastating results for patients.

An analysis of EMTALA violations by hospitals around the United States from March 2008 to March 2018 was performed using hospital records obtained under a Freedom of Information Act request that involved cases where complaints were substantiated by investigators for the federal Centers for Medicare and Medicaid Services, meaning the hospital was found to be at fault. Investigation found:

  • More than 4,300 violations from 1,682 hospitals in total over 10 years
  • Violators represent about a third of the nation's approximately 5,500 hospitals, according to statistics from the American Hospital Association.
  • Hospitals in the Southeast accounted for 1,175 violations over 10 years, more than any other region.
  • Florida was the worst state in the nation for the number of violations, followed by Texas, Pennsylvania, New York, California, and Georgia.
  • Smaller hospitals — those with fewer than 100 beds — accounted for the largest number of violations — 1,488, or 34% of the total.
  • Failure to do a thorough medical screening exam was the most common violation committed by hospitals, accounting for more than 1,300 citations, nearly twice as many as the second most common violation: transferring patients inappropriately.
  • In a deeper analysis of investigation reports from January 2016 to March 2018, at least 34 patients died during that period after emergency departments violated the law.
  • A medical condition often cited in these violations was pregnancy. About 1 in 12 involved women who were pregnant or in labor. About 1 in 7 involved patients who were having a mental health crisis, including having suicidal thoughts.

 While violators over the 10 years represent about a third of hospitals across the United States, the chances of any individual trip to the ER resulting in a documented violation are very low. In 2016, for example, there were just 459 EMTALA violations across the country out of 142.6 million emergency room visits, according to the American Hospital Association.  Yet experts say the raw numbers don't accurately reflect both the scope and severity of the problems they see. That's because enforcement of the law depends on someone filing a complaint. Although anyone can file a complaint, it's most often a doctor, nurse, or hospital administrator.

When someone from a hospital makes a complaint about what happened at another hospital, both hospitals are investigated. While complaints are anonymous, investigations can be rigorous, and they often catch smaller violations — like failing to post signs about patient rights in an emergency room — along with larger ones that directly affect patient care.  That system of going after both sides really discourages people from complaining.  Given that fact, when you do see an EMTALA violation recorded in the system, it's usually because something really serious happened.

EMTALA, signed into law by President Ronald Reagan in 1986, was designed to prevent the practice of so-called wallet biopsies — where hospitals would turn away patients who couldn't prove they had financial resources like health insurance to pay for their care.  Those patients ended up at public hospitals, often in unstable conditions.  They died about three times more often than patients who were not transferred this way, according to an influential 1986 study on the practice.

While this kind of patient dumping still happens, it appears to be far less common than it used to be.  It appears that hospitals violate EMTALA most often because they lack the resources to provide the level of care the law requires, not because of financial considerations.

Hospitals that violate EMTALA are most likely to be smaller hospitals, or those with fewer than 100 beds. They accounted for 1,488 violations over the decade, more than any other group. According to statistics from the American Hospital Association, hospitals with fewer than 100 beds accounted for about half of all hospitals in the U.S. in 2016.

In recent years, EMTALA has largely been forgotten because patients are not in a position to enforce these laws themselves.  Before 2015, fines levied under EMTALA had been authorized under the Social Security Act and were exempt from adjustment for inflation. That means in 30 years, they'd never gone up, says April Washington, a spokeswoman for CMS. Each violation could cost a doctor or hospital up to $50,000. The penalty for hospitals with fewer than 25 beds was $25,000 per violation.  In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act, which effectively doubled EMTALA fines and those levied by other federal agencies "to maintain their deterrent effect." according to the legislation.  Now, hospitals face up to $104,826 for each violation.

The adjustment recently resulted in the largest fine ever levied against a hospital for an EMTALA violation — nearly $1.3 million. The nonprofit AnMed hospital system, which serves South Carolina, settled with the Justice Department after investigators found the three hospitals were "boarding" dozens of mental health patients in their emergency room for as long as 38 days when they had open psychiatric beds at the same facilities. The patients had been involuntarily committed. The hospital had a longstanding policy of transferring involuntarily committed patients to the state psychiatric hospital, rather than accepting them to their in-house psychiatric unit, according to news reports. The state mental hospital was short of space, prompting long waits for transfer.

 

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