The Implications of HIPAA
and EMTALA on Public Health
By
We as a nation, face public health threats that are potentially catastrophic. But, we have tools to reduce both the likelihood of such catastrophes and their severity. The law has always proven to be one of the most effective tools in protecting the public’s health and safety.[1]
Policy can influence public health at a multitude of levels, including both federal and state laws, as well as regulations, and publicly funded programs. In addition, policy guidelines and institutional rules also impact public health practice and the health care delivery system. This paper will discuss two such pieces of federal legislation, the Health Insurance Portability and Accountability Act (HIPAA) and the Emergency Medical Treatment and Labor Act (EMTALA), that seek to promote access to health care by placing requirements on health care providers while simultaneously provided benefits to the public.
In
2000, the number of uninsured Americans had risen to 38.4 million, or 16% of
the total nonelderly population.[2] With each passing year, this number
continues to grow creating substantial barriers to obtaining quality medical
care for a huge majority of Americans.
Due to this increasing number, it is important for individuals, as
consumers of health care, to understand their health insurance coverage and how
life events might affect this coverage.
Life if full of events that may substantially affect or alter health
insurance coverage.[3] These events can be anything from the birth
of a child to changing jobs or a business closing.[4] Recent legislation, however, has been passed
to help protect American workers and their family members when they need to
buy, change, or continue their health insurance coverage.[5] One new influential piece of legislation is
HIPAA.
The
Health Insurance Portability and Accountability Act of 1996[6]
is the single most significant piece of Federal legislation affecting the
health care industry since the passage of the Social Security Act of 1965 that
created both Medicare and Medicaid.[7] HIPAA, which was signed into law by
President Clinton in August of 1996, includes provisions for health insurance
portability, fraud and abuse control, tax associated provisions, group health
plan requirements, revenue offset provisions, and administrative simplification
requirements.[8]
The
importance of HIPAA is apparent in the fact that compliance is not an option –
compliance is mandatory for each and every entity involved with electronic
health care information.[9] Entities involved with electronic health
care information include: all health care providers, health plans, employers,
public health authorities, life insurers, clearinghouses, billing agencies,
information systems vendors, service organizations, universities, and even
single-physician offices.[10]
There
are two main parts to the Health Insurance Portability and Accountability Act
of 1996. Title I of the Act improves
the portability and continuity of health insurance coverage for American
workers and their families.[11] This part of the Act protects the health
insurance coverage of employees and their families when they lose or change
their jobs.[12] Title II of the Act establishes
administrative simplification procedures that mandate the development of
uniform standards for the electronic exchange of health care information.[13] In addition to the development of these
standards, the administrative simplification procedures also call for rules to
protect the privacy of personal health information, the creation of security
requirements to protect that information, and the development of standard
identifiers to be used within the medical community.[14]
The first section of this paper will discuss the
implications of HIPAA’s provision dealing with the portability of health
insurance. Next, a section will be
dedicated to HIPAA’s administrative simplification requirements. Within this section, HIPAA’s electronic
standards and Privacy Rule will be examined in detail.
The
HIPAA legislation was passed in part to limit the problem of “job lock” within
the American workforce.[15] “Job lock” is a condition associated with
the reluctance to move from one company to another due to a fear of losing
health insurance or health coverage.[16] This is such pervasive problem because 67%
of Americans (about 80 million) under the age of 65 receive their health
insurance through their employer.[17] In order to promote the portability of
health insurance, the HIPAA legislation includes protections for coverage under
group health plans that limit exclusions for preexisting conditions; prohibits
discrimination against employees and dependents based on their health status;
and allows for individuals faced with certain circumstances a special
opportunity to enroll in a new health plan.[18] The Centers for Medicare and Medicaid
Services is the organization entrusted with the responsibility to enforce the
insurance portability requirements of HIPAA.[19]
In the past, health insurance companies have tried to
decrease their costs by utilizing
“pre-existing condition” clauses.[20] These clauses allow an insurer to refuse to
cover a condition you had before you bought into the health plan.[21] A pre-existing condition is generally
considered “a physical or mental ailment for which medical advice, diagnosis,
care, or treatment was recommended or received before you enrolled in a health
insurance plan.”[22] Moreover, under the language of some health
insurance policies a medical condition can even be considered pre-existing
“even if you didn’t know you had the problem before you bought your health
plan.”[23] Before HIPAA was enacted, if you were an
individual living with diabetes and your group health plan covered your insulin
and doctors visits, if you switched to a new group health plan provider, the
new insurer could consider your diabetes a pre-existing condition and refuse to
cover your treatment.[24] You would then be forced to pay for all of
your diabetes treatments out-of-pocket, on top of the health care expenditures
you already were required to pay out-of-pocket. This pre-existing condition practice frightened many Americans,
which in turn spurred the condition of “job lock” and acted as a catalyst for
the creation of legislation banning such practices.
HIPAA imposes limits on the extent group health plans can
exclude coverage for pre-existing conditions.
For example, “if you’ve had ‘creditable’ health insurance for 12
straight months, with no lapse in coverage of 63 days or more, a new group
health plan cannot invoke the pre-existing condition exclusion.”[25] It is mandatory for this new group health
insurance plan to cover your medical conditions as soon as you enroll in the
plan.[26]
“Creditable” health insurance coverage includes prior
insurance coverage you had under any of the following health plans:
·
A group health plan
·
Medicare
·
Medicaid
·
A military-sponsored health care program such as
Tri-Care
·
Health plans offered by the Indian Health Service
·
A state high-risk pool
·
The federal Employees Health Benefit Program
·
A public health plan established or maintained by
a state or local government
·
A health benefit plan provided for Peace Corps
members[27]
If
you are not switching from a “creditable” health care policy when you enroll in
a new group plan – or if your previous insurance coverage was provided from a
foreign insurance carrier – your new insurer can refuse to pay for any of your
existing medical problems.[28] However, it is important to note, this
practice is precluded in terms of pregnancy if the plan provides maternity
coverage.[29]
HIPAA’s portability protections apply to
every employer group health plan that has at least two current employee
participants, including companies that are self-insured.[30] In addition, states have the option of
applying HIPAA’s rules to “groups” of one, which some states have opted to do.[31] Furthermore, some states have even enacted
their own legislation protecting health insurance applicants, and in many of
these cases the states provide more rights than federal law.[32]
There
is, however, one major exception to HIPAA’s portability requirements. HIPAA provides no protection if you switch
from one individual health plan to another individual health plan.[33]
What
is important to remember, however, is that while HIPAA makes it much easier to
get health insurance from your new employer when you switch jobs, it does not
guarantee that you will receive the same level of benefits, deductibles and
claim limits you might have experienced under your former employer’s health
plan.[34] HIPAA also allows employers or health plans
to impose a waiting period, usually one to three months, before you can become
eligible to join the group health plan of a new employer.[35] These waiting periods do not count as a
lapse in health coverage, and you would not be penalized under HIPAA.[36]
HIPAA
requirements for the portability of health insurance do not apply to a list of
“excepted benefits.” These type of benefits
include:
·
Coverage only for accident (such as accidental
death or dismemberment) or disability income insurance
·
Liability insurance
·
Supplements to liability insurance
·
Workers compensation or similar insurance
·
Automobile medical payment insurance (known as
“Medpay”)
·
Credit-only insurance (for example, mortgage
insurance)
·
Coverage for on-site medical clinics[37]
Under
HIPAA, if you have already been in a group health insurance plan, more than
likely you will not have to sit out the full 12-month exclusion period.[38] Your new health plan must give you “credit
for time served.”[39] This “credit for time served” is the amount
of time you were enrolled in you previous plan minus the exclusion period.[40] Thus, if you have had 12 or more months of
continuous coverage, you will have no waiting period for pre-existing
conditions. On the other hand, if you
had prior coverage for eight months, you can be subject to only a four-month
exclusion period if you were to switch jobs.
In order to keep your coverage continuous you
cannot have a lapse or a break in coverage for 63 days or more.[41] If you were to face circumstances that would
but you outside this 63 days, that is where COBRA can help you. COBRA stands for the Consolidated Omnibus
Budget Reconciliation Act.[42] COBRA gives worker and their families who
lose their health benefits to continue their group health plan benefits that
were provided by their employer for limited periods of time under certain
circumstances.[43] The certain circumstances include: voluntary
or involuntary job loss, reduction in the hours worked, transition between
jobs, death, divorce, etc.[44]
If you are planning to leave one employer before starting with another, you
might want to consider maintaining your health plan from your previous employer
through COBRA. COBRA coverage tends to
be very expensive, because you are picking up the total cost of your
coverage. Even with these high costs,
however, COBRA allows you to maintain continuous coverage and might allow you
to avoid an exclusion period for pre-existing conditions. The Centers for Medicare and Medicaid
Services warns that it is of high importance to maintain health coverage when
you change jobs, if you want to avoid exclusions for pre-existing conditions in
your new employer’s health plan:
“If you had group health
plan coverage at your last job, you probably will be offered COBRA continuation
coverage. If you are eligible for such
continuation coverage, it counts as creditable coverage. In addition, you must accept and exhaust
COBRA benefits before you can obtain coverage in the individual market as a
HIPAA eligible individual.”[45]
The original goal of the
Health Insurance Portability and Accountability Act of 1996 was to provide for
the portability of health insurance for the American employee. However, this legislation was expanded far
beyond this original goal to include an Administrative Simplification section.[46] The Administrative Simplification section of
HIPAA includes: (1) standardization of electronic formats for transmission of
specific transaction, (2) security of electronic health information and
electronic signatures, and (3) privacy of patient identifiable information.[47]
A. HIPAA’s
Electronic Standards
The Administrative
Simplification provision of the Health Insurance Portability and Accountability
Act of 1996 required the Department of Health and Human Services to establish
national standards for electronic health care transactions and national
identifiers for providers, health plans, and employers.[48] These standard formats were required to
“streamline the processing of health care claims, reduce the volume of
paperwork, save the U.S. health care system billions of dollars and provide
better service for providers, insurers and patients.”[49] The testing deadline for electronic
transactions and code sets for entities involved with electronic health care
information was set for April 16, 2003 while the compliance date has been set
at October 16, 2003.[50]
These
new standards establish “uniform data content and formats” for submitting
electronic claims and other administrative health related transactions.[51] In addition, national identification numbers
for employers and health care providers have been created to speed up claims
processing and lower costs.[52] It has been suggested that the increased use
of electronic transactions and the elimination of inefficient paper forms will
save the health care industry $29.9 billion over 10 years.[53]
Currently, different insurers require different electronic and paper forms to be submitted from health care providers when filing claims for their patients. Under the new HIPAA regulations, all electronic transactions must follow the standard, uniform format. According to Nancy-Ann DeParle, administrator of the Health Care Financing Administration, “These new standards are a win-win for health care providers and their patients. Information exchange will be more efficient and accurate, and providers will be able to spend less time on paperwork, and more time on the health care of their patients.”[54]
B. The
HIPAA Privacy Rule
The Standards for Privacy
of Individually Identifiable Health Information (“Privacy Rule”)
establishes, for the first time, a series of national standards for the
protection of particular health information.
The U.S. Department of Health and Human Services produced the Privacy
Rule to implement the requirement of the Health Insurance Portability and
Accountability Act of 1996.[55] The Privacy rules implement standards that
address “the use and disclosure of individuals’ health information -- called
‘protected health information’ by organizations subject to the Privacy rule --
called ‘covered entities,’ as well as standards for individuals’ privacy rights
to understand and control how their health information is used.”[56] Within the Department of Health and Human
Services the Office for Civil Rights is responsible for enforcing the Privacy
rule in respect to both voluntary compliance and civil money penalties.[57]
The Department of Health and
Human Services Privacy regulations do not preempt State law or other Federal
law.[58] The effect of these regulations is to
provide a statutory floor for privacy.[59] Although the Privacy rule does not preempt
State law, the rule does allow for any person (even the State) to submit a
request for an exception determination.[60]
The Privacy rule applies to
health plans, health care clearinghouses, and to any health care provider who
transmits health information in electronic form.[61] The Privacy rule protects all “individually
identifiable health information” that is held or transmitted by a covered
entity or its business associate, in any form of media, be it either paper or
oral.[62] This information is called “protected health
information” under the Privacy rule.[63]
According to the Privacy
rule “individually identifiable health information” is information that
identifies the patient or for which there is reason to believe the patient can
be identified that relates to:
·
The
individual’s past, present or future physical or mental health condition,
·
The
provision of health care to the individual, or
·
The
past, present or future payment for the provision of health care to the
individual[64]
A covered entity is not
allowed to use or disclose this protected health information, except either:
(1) as the Privacy rule permits or requires, or (2) as the individual patient
authorizes in writing.[65] A covered entity must disclose this
information, however, if (a) the individual patient specifically asks or
requests for their own protected health information, or (b) when the Department
of Health and Human Services requests this data when conducting a compliance
investigation.[66]
The penalties for disobeying
the HIPAA privacy rules are both civil and criminal.[67] The Department for Health and Human Services
may impose civil monetary penalties on a covered entity of $100 per failure to
comply with the Privacy rules.[68] This penalty is not allowed to exceed
$25,000 per year for multiple civil violations.[69] Criminal penalties may be imposed by the Department
of Health and Human Services on a person who knowingly obtains or discloses
individually identifiable health information of $50,000 and up to one-year in
prison.[70] The criminal penalties are increased up to
$100,000 and up to five years in prison if the conduct involves false
pretenses, and up to $250,000 and up to ten years in prison if the conduct
involves the intent to sell, transfer, or use the individually identifiable
health information for a commercial advantage, personal gain, or malicious
intent.[71]
IV. Conclusion
With the passage of the
Health Insurance Portability and Accountability Act of 1996 great strides were
made in the improvement of public health.
The health insurance portability provisions of this act increase an American
worker and his or her family’s ability to retain health insurance coverage when
the change or lose their job. The
uniform electronic and code set requirements of HIPAA streamline the claims
procedures decreasing the cost of health insurance and increasing the quality
of care available to everyone. Finally,
with the growing use of electronic media, the Privacy Rules of HIPAA insure
that patients’ identifiable medical information is adequately protected
decreasing the likelihood that this information could be used to the individual
patients detriment.
Public Health Legislation: A Description
of the Emergency Treatment and Labor Act and the Health Insurance Portability
and Accountability Act
I.
The
Emergency Treatment and Labor Act (EMTALA)
The Emergency Treatment and Labor Act, also known as the patient antidumping statute, was passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA). Congress enacted these antidumping provisions in the Social Security Act. Sections 1866(a)(1)(I), 1866(a)(1)(N), and 1867 of the Act impose specific obligations on Medicare-participating hospitals that offer emergency services. These obligations concern individuals who come to a hospital emergency department and request examination or treatment for medical conditions, and apply to all of these patients, regardless of whether or not they are beneficiaries under any program under the Act.
Congress enacted these
antidumping provisions in the Social Security Act because of its concern with
an increasing number of reports that hospital emergency rooms were refusing to
accept or treat patients with emergency conditions if the patients did not have
insurance:
are not being treated
appropriately. There have been reports
of
situations where treatment
was simply not provided. In numerous
other situations, patients
in an unstable condition have been
transferred improperly,
sometimes without the consent of the
receiving hospital.
There
is some belief that this situation has worsened since the
prospective payment system for hospitals became
effective. The Committee wants to
provide a strong assurance that pressures
for greater hospital efficiency are not to be construed
as license to
ignore traditional community responsibilities and
loosen historic standards.
Under the statute, all
participating hospitals with emergency
departments would be required to provide an
appropriate medical screening examination for any individual who requests it
(or has
a request made on his behalf) to determine whether
an emergency
medical condition exists or if the patient is in
active labor.[72]
EMTALA
was designed principally to address the problem of “patient dumping,” whereby
hospital emergency rooms deny uninsured patients the same treatment provided
paying patients, either by refusing care outright or by transferring uninsured
patients to other facilities.[73] Reports of patient dumping rose in the
1980s, as hospitals, were generally without a state law duty to treat, faced
new cost containment pressures combined with growing numbers of uninsured and
underinsured patients.[74]
However,
the provisions of EMTALA are not limited to the indigent and uninsured. “Because [EMTALA] is clear on its face,
[courts] have held that the Act applies to any and all patients, not just to
patients with insufficient resources.”[75]
Congress
has stated that in promulgating the regulations and in enforcing the provisions
of EMTALA, it is aware of the “necessary balance between the hospital’s and a
physician’s legal duty to provide examination and treatment under the statute
and the practical realities of the manner in which hospitals and medical staffs
are organized and operated on an day-to-day basis, as well as proper
mobilization of resources within hospitals in order to comply with these legal
duties.”[76]
1.
What
EMTALA Requires
The regulations implementing
section 1867 of the Social Security Act are found at 42 CFR 489.24, Special responsibilities of Medicare hospitals in
emergency cases.[77]
Paragraph (a) requires that
when an individual comes to a hospital’s emergency department and a request is
made on the individual’s behalf for examination or treatment of a medical
condition, the hospital must provide for an appropriate medical screening
examination to determine whether or not an emergency medical condition exists.[78]
Paragraph (c) addresses
procedures a hospital must follow when it determines that an emergency medical
condition exists. If the hospital
determines that an emergency medical condition exists, the hospital must
provide for further medical examination and treatment as required to stabilize
the patient.[79] If the hospital does not have the
capabilities to stabilize the patient, an appropriate transfer to another
facility is permitted. [80]
A transfer is appropriate when the medical benefits of the transfer outweigh
the medical risks of the transfer, and other requirements, specified in the
regulation at paragraph (d), are met.[81] Also, the hospital may transfer an unstable
patient who makes an informed written request.[82] Paragraph (c) further states that a hospital
may not delay an appropriate medical screening examination, or further
examination or treatment, to inquire about the individual’s payment method or
insurance status.
Some EMTALA-related
requirements are implemented under regulations at §§ 489.20(l), (m), (q), and (r)(1), (r)(2), and
(r)(3).[83] These regulations concern a hospital’s
obligations to report the receipt of patients that it has reason to believe may
have been transferred inappropriately.
These regulations also mandate the posting of signs in the emergency
department describing a patient’s rights to emergency treatment under section
1867 of the Social Security Act.
Section 489.20 further requires the maintenance of patient records,
physician on-call lists, and emergency room logs.
2. Clarifications to Original Rule
On November 10, 1999, CMS
(previously HCFA) and the Office of the Inspector General (OIG) published
jointly in the Federal Register a Special Advisory Bulletin addressing the
requirement of EMTALA and the obligations of hospitals to medically screen all
patients seeking emergency services and provide stabilizing medical treatment
as necessary to all patients, including enrollees of managed care and
nonmanaged care physicians; prior authorization requirements of some managed
care plans; use of advance beneficiary notices (ABNs) or other financial
responsibility for, handling of individuals’ inquiries about financial
liability for emergency services; and voluntary withdrawal of a treatment
request.[84] Although the Special Advisory Bulletin does
not amend the Code of Federal Regulations, the bulletin informs individuals of
the Department of Health and Human Services policy regarding application of
EMTALA and offers advice on the “best practices” to follow to avoid violation
of the requirements imposed by the statute.
3. May 9, 2002 Proposed Rule
In its May 9, 2002 Proposed
Rules, CMS proposed to codify certain policies found solely in the November 10,
1999 Special Advisory Bulletin.[85] The proposed rules were prompted
physicians’, patients’, and hospital employees’ need for uniform and consistent
application of policy and the desire to avoid any misunderstanding of EMTALA
requirements. Recent questions have bee
raised about the applicability of §489.24 to specific
situations.[86] The questions arise in the context of
managed care plans’ requirements for prior authorization, case experiences
involving elective procedures, and situations when patients have been admitted
as inpatients but are not stabilized, or later experience a deterioration in
their medical condition.[87] Some hospitals are uncertain whether various
conditions of participation found in 42 CFR part 482 apply to these situations
or whether the EMTALA requirements included in the provider agreement
regulations at §489.24 apply, or both.[88] Finally, there have been questions
concerning the applicability of EMTLA to physicians who are “on call” and to
hospitals that own ambulances when those ambulances operate under community
wide emergency medical services protocols.[89] To promote consistent application of the
regulations, the Proposed Rules clarify the application of §489.24 to the above
situations.
The following provides a
brief description of the proposed clarifications found in the May 9, 2002
Proposed Rule that relate to the public health and welfare:
a.
Prior
Authorization
In its Proposed Rules, the
Centers for Medicare and Medicaid Services (CMS) stated that EMTALA would
continue to prohibit hospitals from seeking prior authorization. The purpose behind prohibiting prior
authorization is to prohibit a Medicare participating hospital from seeking
authorization from the individual’s insurance company for screening services
required to stabilize an emergency medical condition until after the hospital
has provided the appropriate medical screening examination. Hospitals may not seek authorization from an
individual’s insurance company until after the hospital has provided the
appropriate medical screening examination required by EMTALA and initiated any
further examination or treatment required to stabilize the emergency medical
condition.[90] CMS proposed changes to EMTALA concerning
prior authorization, including revising the regulations to allow a hospital to
seek information, aside form payment information, from the insurer, and to
allow a hospital to seek authorization for services concurrently with providing
stabilizing treatment, as long as there is no delay in the required screening
and stabilization services.[91] Finally, CMS proposed that an emergency room
physician may contact a patient’s physician to seek advice regarding the
patient’s medical history and needs, if the consultation does not
inappropriately delay required screening or stabilization services.[92]
b. Individual Comes to the Dedicated
Emergency Department for Nonemergency Services
A hospital has an EMTALA
obligation to any individual who comes to the dedicated emergency department,
if a request is made on the individual’s behalf for examination or treatment
for an emergency condition, or if a “prudent layperson observer would believe,
based on the individual’s appearance or behavior, that the individual needs
examination or treatment for a medical condition.”[93] The proposed rules seek to clarify that if
an individual presents to an emergency department and a request is made for
examination or treatment for a medical condition, but the nature of the request
“makes clear that the condition is not an emergency, the hospital must only
perform screening to determine that the individual does not have an emergency
medical condition.[94]
c. Individual Presents at an area of the
Hospital on the Hospital’s Main Campus Other Than the Dedicated Emergency
Department
CMS clarified that EMTALA
does not apply to an individual who comes to the hospital as an outpatient with
a previously scheduled appointment for a nonemergency purpose who then
experiences what may be an emergency medical condition.[95] An individual such as this is already a
patient of the hospital, as they have a previously established relationship and
have come to the hospital for a previously scheduled medical appointment, and
as such, are not considered to have “come to the hospital” for ETMALA purposes.[96]
d.
Applicability
to Hospital Inpatients
According to the proposed rules, EMTALA applies to
hospital inpatients under limited circumstances: (1) a hospital’s EMTALA
obligation continues when a patient is admitted to the hospital on an inpatient
basis because the patient’s emergency medical condition has not yet been
stabilized; and (2) If an inpatient admitted from the dedicated emergency
department with an unstabilized medical
condition was never stabilized as an inpatient and is transferred, EMTALA
obligations apply to the transfer.[97] However, EMTALA does not apply to inpatients
who become unstable subsequent to admission.[98]
If an
admitted emergency patient can be transferred as “stable” under EMTALA, and
this is documented, the hospital satisfies its EMTALA obligation of providing
stabilizing treatment to the point of stability for transfer, and the
hospital’s EMTALA obligation ends, even if the patient remains an inpatient at
the hospital.[99] Furthermore, if a patient has a decline in
his or her medical condition after stabilization, the hospital is not obligated
under EMTALA, but must comply with Medicare conditions of participation under
42 CFR 482.[100]
e.
Applicability
of EMTALA to Off-Campus Hospital Departments
Finally, in its proposed rules, CMS clarified
EMTALA’s applicability to off-campus departments that are dedicated emergency
departments, and are treated by Medicare as departments of the hospital.[101] These departments do not have to be identified
by the hospital with the words “emergency room” or “emergency department” to
apply EMTALA; in essence, a dedicated emergency department includes off-campus
departments that a “prudent layperson would perceive as appropriate places to
go for emergency care.”[102] [CMS] believe[s] this proposed change would
enhance the quality of emergency care by facilitating the prompt delivery of
emergency care in those cases, thus permitting individuals to be referred to
nearby facilities with the capacity to offer appropriate emergency care.”[103]
EMTALA
is not a substitute for state law on medical malpractice. It was not intended to guarantee proper
diagnosis or to provide a federal remedy for misdiagnosis or medical
negligence. Instead, EMTALA was enacted
to fill a hole in traditional state tort law by imposing on hospitals a legal
duty that the common law did not recognize to provide emergency care to all.[104] “EMTALA’s core purpose is to get patients
into the system who might otherwise go untreated and be left without a remedy
because traditional medical malpractice law affords no claim for failure to
treat.”[105] In essence, EMTALA creates a new cause of
action, generally unavailable under state tort law, for what amounts to failure
to treat.[106]
The
legislative history of EMTALA demonstrates that Congress never intended to
displace state malpractice law. This
intent to supplement, but not override, state tort law is evident in EMTALA’s
limited preemption provision.[107] EMTALA provides: “The provisions of this
section do not preempt any State or local law requirement, except to the extent
that the requirement directly conflicts with a requirement directly conflicts
with a requirement of this section.”[108]
EMTALA’s
deference to state law is also evident by its express adoption of state law as
to the damages recoverable. EMTALA
provides that a plaintiff, in a civil action against a hospital, may obtain
those damages available for personal injury under the law of the State in which
the hospital is located, and such equitable relief as is appropriate.[109]
The avowed purpose of EMTALA was not to guarantee that all
patients are properly diagnosed, or even to ensure that they receive adequate care, but instead to provide an ‘adequate first response
to a medical crisis’ for all patients and send a clear signal to the
hospital community…that all Americans, regardless of wealth or
status, should know that a hospital will provide what services it
can when they are truly in physical distress.[110]
The
specific requirements of EMTALA are incorporated in each hospital’s Medicare
provider agreement. The Centers for
Medicare and Medicaid Services (CMS) and the Office of Inspector General (OIG)
have joint responsibility for the enforcement of EMTALA. CMS initiates investigations in response to
complaints, which can come from several different sources, such as patients,
the hospital itself, from another hospital, or by a CMS state surveyor, while
conducting a licensing or recertification survey.[111] If the regional office determines that an
investigation is warranted, the office authorizes a state survey agency to
perform an on-site and unannounced investigation to assess potential
violations.[112] CMS may also obtain physician review of the
case, at its discretion, which may be performed pursuant to a contract with a
state peer review organization (PRO) by board certified physician reviewers who
are experienced in peer review.[113] If a violation is confirmed, CMS initiates
termination of the hospital’s Medicare provider agreement. CMS may initiate either a 23-day termination
process, for violations that represent an immediate and serious threat to
patient health and safety, or a 90-day termination process for other
violations.[114] A facility can avoid termination of their
provider agreement by submitting a plan of correction to CMS for its
acceptance.[115]
When
CMS determines a violation has occurred, it also forwards the case to the
Office of Inspector General. The OIG
determines whether to assess civil monetary penalties. The OIC focuses on compliance with the
specific EMTALA statutory requirements and assesses civil monetary penalties
based only on statutory violations.[116] When deciding whether to pursue civil
monetary penalties and/or setting fines, the OIG considers the nature and
circumstances of the violation and the effect of a fine on a hospital’s ability
to provide care.[117] Hospitals can be fined a maximum of $50,000
per violation, and for hospitals with fewer than 100 beds, the maximum fine is
$25,000.[118] Additionally, any physician responsible for
examination, treatment, or transfer of an individual in a participating
hospital, including an on-call physician, who negligently violates a
requirement of the statute, may be fined a maximum of $50,000 in civil monetary
penalties, and excluded from the Medicare program by the OIG for repeated or
gross and flagrant violations.[119]
The
OIG imposed fines totaling over $5.6 million on 194 hospitals and 19
physicians, during the years 1995 through 2000.[120] The majority of hospital fines amounted to
$25,000 or less.[121]
Physicians and hospital
officials interviewed by the General Accounting Office (GAO) were in general
agreement that EMTALA has an important, which is to ensure that no one is
denied emergency medical care because of lack of insurance or an inability to
pay.[122] Despite this acknowledgement of the
importance of EMTALA, there continue to be concerns raised over the effects of
EMTALA on hospital emergency departments. Many emergency departments have
experienced an overall increase in patient volume. Studies have found that many emergency department visits are for
primary care services and treatment of nonurgent conditions, or conditions
which are not life or limb-threatening or time sensitive.[123]
While many hospital
officials and physicians agree that EMTALA has encouraged more people to come
in for treatment, they are also concerned that this influx of individuals to
the emergency department has not just been for emergencies. The resulting increase in patient volume,
they say, has greatly contributed to “overcrowding, long delays and higher
costs for providing uncompensated care.”[124] One article sighted concerns regarding the
effects of EMTALA, including: (1) patients’ use of hospital emergency rooms as
primary care providers for nonemergency services, resulting in overcrowding and
delays in emergency room treatment, and increased treatment costs; (2) an
increase in the overall amount of uncompensated care provided by emergency
departments; (3) a decline in the number of physicians willing to serve on-call
in emergency departments; (4) denial of payment by managed care plans when
physicians comply with EMTALA’s screening provisions and subsequently learn
that the patient did not have an emergency medical condition.[125]
For example, one problem
exacerbated by EMTALA is that managed care plans retrospectively decide what
services to pay for, and these plans often decide what constitutes an emergency
after the fact.[126] Managed care plans may seek to pay hospitals
for services only if the hospitals obtain approval from the plan for the
services prior to providing the services, and hospitals are expressly
prohibited from doing so under EMTALA.[127] Several commenters to OIG’s and HCFA’s (now
known as CMS) Special Advisory Bulletin, published November 10, 1999 in the
Federal Register, stated concern because hospitals are accepting contracts
offered by managed care plans, although if they comply with the prior
authorization clauses in the contract, the hospital could incur an EMTALA
violation.[128]
In its Special Advisory
Bulletin, OIG/HCFA stated that they were unable to resolve the concern over the
prohibition against prior authorization, because they “do not have the
authority under the patient anti-dumping statute to mandate reimbursement for
emergency services or to regulate non-Medicare and non-Medicaid managed care
plans.”[129] Furthermore, hospitals may not prepare
advance beneficiary notices (ABNs) for beneficiaries, give financial responsibility
forms to patients, or otherwise obtain the individual’s agreement to pay for
services before the individual’s stabilizing treatment has begun.[130] However, in an effort to lessen hospital
reimbursement problems over prior authorization, physicians may phone a
physician in a managed care plan at any time for medical consultation, if in
the best interest of the patient.[131] Finally, once treatment is under way,
physicians may contact managed care plans for payment authorization.[132]
EMTALA enforcement is another
contributing factor to the concerns over the problems within emergency
departments. A report by the OIG found
long delays in reviewing and deciding cases.
There have been instances when hospitals have waited a long time to find
out the outcome of an investigation and could be subject to a fast-track
termination for an incident that occurred months or years before.[133] In an interview with surveyors from the OIG,
three emergency department administrators stated that their hospitals have been
waiting a year or more for the outcome of their hospitals investigation.[134] “[The investigation] loses punch if it takes
too long,” said one of the emergency department directors, “[because] the staff
in question leave.”[135] Furthermore, waiting months or years to find
out the outcome of an investigation that may subject the hospital to a
fast-track termination (23 days) frustrates the intent of the statute, as the
23 day termination was designed to protect patients from an immediate and
serious threat to patient health.
Another problem with identifying problems in the emergency department that are associated with the limited data associated with the effects of EMTALA. The lack of data on the incidence of patient dumping before the enactment of EMTALA, and the absence of measurements on the current incidence other than the number of confirmed violations make the overall impact of EMTALA is difficult to measure.[136] The measurement of confirmed violations may not be an accurate measurement, because all suspected violations may not be reported. For instance, hospital officials have reported that they may not always report possible violations of EMTALA, because they are concerned with jeopardizing their relationships with other hospitals.[137]
Despite the many concerns of
physicians over the effects of EMTALA on hospitals and emergency departments,
physicians in attendance at the 2000 AMA Annual Meeting stated that while
EMTALA was a catalyst for many problems plaguing the nation’s emergency
departments, it is not the only cause.[138] According to the OIG and the GAO, other
factors, such as overall increased patient volume, insufficient supply of
hospital beds, nursing shortages, and reduced reimbursement were sighted as
contributors to the problems in the nation’s emergency departments.[139]
In summary, from a public health standpoint, EMTALA represents an important and critical legal development due to its potential impact on access to care. EMTALA provides a means for the millions of uninsured Americans to receive some level of health care, which would not otherwise be available.
[1] Stephen Teret, JD, MPH, Director of the Center for the Law and the Public’s Health and professor of health policy and management at he Johns Hopkins Bloomberg School of Public Health