In the aftermath of the recent health care reform debates, one word carried more force than any of the rhetoric to which the American public was exposed. That word is EMTALA, an acronym for Emergency Medical Treatment and Active Labor Act. In medical practice, those who care for emergency room patients know it quite well. My goal in this article is to give readers an understanding of how EMTALA provides all Americans, rich or poor, the ability to access our medical care system. Such an understanding will help to explain how and why our political leaders negotiated and blustered the way they did during the health reform debates.
EMTALA, enacted in 1986, is a federal statute that primarily affects hospitals. Also known as the “anti-dumping” law, it is administered by the Centers for Medicare and Medicaid Services and has undergone many changes in the past 24 years.
Average Americans probably don’t know what EMTALA stands for, but they do know what EMTALA means: It means that hospitals can’t refuse to see you in their emergency rooms.
Hospitals have three obligations under EMTALA, as follows:
- The hospital must provide a screening exam for anyone approaching the hospital. Ambulances are also required to provide transport to the hospital.
- The hospital must then “stabilize” the patient.
- If the hospital does not have the services to stabilize the patient, it must transfer the patient to a facility with such services. Furthermore, facilities with such services, such as trauma centers, must accept such patients if requested.
When EMTALA began in 1986, Ronald Reagan was president, and indignation about “patient dumping” was everywhere. There were many cases of patient dumping that astonished the world. In one case, an indigent woman was transferred out of a hospital ER to a facility well down the road, where she was said to have a “bad baby” (malpractice lingo for a neurologically impaired infant).
The House of Medicine was in shame. Physicians rose up to change the system, and ER doctors led the charge.
Fast forward to the end of George W. Bush’s presidency. At a news conference, a reporter asked, “Mr. President, if the reforms don’t go through, what will happen? Where will patients go?”
Bush shrugged his shoulders and answered, deadpan, “What? They go to the emergency room. What?” His answer confirmed the state of care delivery that EMTALA long ago morphed into. Local ERs don’t just provide emergency care; they are also the neighborhood walk-in clinic.
EMTALA truly improved a major problem of access to care. It said that no one would be allowed to die or be put in jeopardy in our ERs because of insurance or money. Of course there was no funding for all the uncompensated care that ensued. As a result, EMTALA has been cited as the biggest unfunded mandate of all time.
The regulatory power and might of the government has enforced and refined EMTALA substantially since 1986. An entire culture has evolved over its interpretation and administration. There are EMTALA courses in law schools and super-specialists in its legal practice. The hospitals live in mortal fear of $50,000 fines.
By now the full ramifications of EMTALA are well entrenched. The biggest is the “cost shifting” that has resulted because hospitals must charge more from their other paying sources to balance the losses of the indigent care they are mandated to provide for free. All the insurance plans have had to do the same. This phenomenon has been present from the beginning of EMTALA.
Additionally, specialists providing backup care to ERs either resigned from hospital staff or had to be paid to provide backup call for patients during the entire hospital stay. Such payments are routine throughout California for scarce specialties, such as general surgery, neurosurgery, orthopedic surgery, plastic surgery, and cardiology.
Another major consequence of EMTALA is gaming by the insurance industry, especially HMOs. Essentially, insurance companies sign up hundreds of thousands of patients for whom they do not have an adequate network of physicians. The companies then dump the patients on the ERs, who are forced to care for them by EMTALA rules. Major conflicts then evolve when on-call physicians do not have contracts with patients’ health plans. California’s remedy for this was to prohibit such on-call physicians from sending their bills to the patients they were compelled to care for. Hence, the insurance industry uses EMTALA as a weapon in its quest to extract profits from the system.
EMTALA was always the 800-pound gorilla during the recent health care reform battles. It was used, implicitly, by major advocacy groups. When reform talks started out, many groups were gung-ho that we had to have reform. The rhetoric ran wild. Sen. Schumer of New York: “The status quo is unacceptable.” Gov. Schwarzenegger: “The system if broken.” The Catholic Church insisted health care was a right and a moral imperative. Unions were a little tepid, but went along with the idea of reform, as did many Americans, as long as their own wallets didn’t get picked.
With the realization of the enormous costs for providing universal health care, these advocacy groups changed their rhetoric. When Schwarzenegger figured out that California and other big states would get hurt if more patients were dumped onto Medicaid, he said we needed to blow up the whole deal.
Similarly, the party line from the Catholic bishops was that the government would have to scotch the whole reform thing if the bishops couldn’t get their way on abortion. And then the unions said reform would have to go kaput if they couldn’t get their way on the taxation of “Cadillac plans.” Then there were Sen. Mary Landrieu of Louisiana and Sen. Ben Nelson of Nebraska with their private reform perks for their own states.
So, what’s the point? The point is EMTALA. None of these factions could have behaved the way they did were it not for the universal knowledge that an unfunded mandate was the bedrock for access to care. EMTALA has always been in the background. It should be brought to the foreground to be recognized and remembered whenever the cards are put on the table. I believe it is the most pivotal reform that our medical system has provided. It dwarfs whatever else is on the table.
The House of Medicine has never been thanked for providing EMTALA, nor have physicians crowed about it, claiming high kudos that should be forever forthcoming. EMTALA was an obvious extension of the good values that exist in every doctor in the profession—nothing more. What doctor would deny care to those in need?
Although I believe EMTALA to be bedrock, it does not solve all of health care’s problems. It fails in nonemergency and preventive care. Indeed, President Obama’s mother, struggling with needs for oncology care for ovarian carcinoma, was a prime example. So what does America do? My own view is that we first turn down the rhetoric.
A major downside of EMTALA is that it created the impression that medical care is free. Many patients have said, “Why am I buying insurance anyway? They have to save me in the ER, don’t they?” Thus, there is little incentive for certain groups, such as “the invincibles” (20- to 35-year-olds who are in good health and convinced they will live forever), to pay for insurance. They embrace risk-taking and have a budget for Blackberries and beer, but not a dime for health insurance. Moreover, they resent plunking down money into a system that will be mainly shelling out big bucks for sick old folks.
I am convinced that most Americans embrace health care with both hands: one on their hearts, the other on their wallets. Obama and Speaker Pelosi knew that the vast majority of Americans were already shelling out for health care (either directly or through employee benefits). They tried to tell everybody that it would be “all right” as to where funding would come from and tried to say that the average American’s wallet wouldn’t be picked. When legislators started groveling to special interests such as the insurance industry and union bosses, voters had had enough. Scott Brown, a Republican, was elected senator from Massachusetts.
In the final analysis, EMTALA allowed all of this to play out. Everyone can go to the ER no matter what. A homeless man can get the same service as Bill Gates. Self-avowed experts are everywhere, and the rhetoric continues to fly. But everyone can say what he or she wants because there is always EMTALA: the wonderful safety net of America’s ERs that will always be a sanctuary for those in need. Politicians and pundits use this as unlimited license to propose things of their choosing, even if there is no basis in fact or if it is downright reckless. Insurance companies sit quietly by because EMTALA guarantees there will be a product for the public.
Lost in all this, to me as a physician who provides a monumental amount of EMTALA care, is that most of America’s physicians wish for nothing more than a “thank you” from the patients. Truth is, most of the time the patients do thank us. That is what keeps us going. I wish we could share that with the public and the politicians. And I wish the House of Medicine would get thanked for providing the design of EMTALA—because it did.
Let’s do what we doctors do at the end of a long night in the ER: pick up the pieces, learn from what we’ve done, and try to work with the world in getting it right. And, please, the world would do well to know the meaning of EMTALA, the biggest health reform ever accomplished in the United States, designed and continuously implemented by America’s doctors.
My intent for this essay was to educate medical professionals and the public on the ramifications of EMTALA for society. The safety net that is EMTALA is more crucial to society than ever. Proposals that tinker with it or weaken it should not be taken lightly. If a local ER goes out of commission, serious alarm should go up because the safety net is weakened.
EMTALA is the cornerstone of health care reform. We should cross-check all future reform proposals as to whether or not they have an adverse impact on EMTALA. More than likely, the proposals will take into account, implicitly, that our ERs, functioning under EMTALA, will always be there. Heaven help us if the day comes when that assumption falls apart.
Dr. Hinsdale, a surgeon who directs trauma services at Marin General Hospital, is president-elect of the California Medical Association.