The Implications of HIPAA and EMTALA on Public Health

By

Lynn Zondorak and Courtney McCormick

 

 

 

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. 

 

 

The Health Insurance Portability and Accountability Act

 

I.  Introduction

 

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.

II. HIPAA’s Health Insurance Portability Provisions

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]

 

 

III. HIPAA Administrative Simplification

 

          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.

A.   The History of EMTALA

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:

The Committee is most concerned that medically unstable patients

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]

B.   Responsibilities of Medicare-Participating Hospitals in Emergency Cases

 

 

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]

C.   EMTALA and State Medical Malpractice Law

          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]

 

 

II.        Enforcement Process

                   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]

III.  Concerns with EMTALA

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]

IV.        Conclusion

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

[2] The Henry J. Kaiser Family Foundation, Kaiser Commission on Key Facts, The Uninsured and Their Access to Health Care, Washington, DC, Feb. 2002.

[3] Centers for Medicare and Medicaid Services, HIPAA Insurance Reform: Health Insurance Portability and Accountability Act, Consumer Information, available at http://cms.hhs.gov/hipaa/hipaa1/content/cons.asp

[4] Id.

[5] Id.

[6] Public Law 104-191, 104th Congress, The Health Insurance Portability and Accountability Act of 1996 (August 21, 1996).

[7] HIPAA Ohio, Health Insurance Portability and Accountability Act, HIPAA Statewide Project: Implementing the Health Insurance Portability and Accountability Act for Ohioans, available at http://www.state.oh.us/hipaa/

[8] The Military Health System, Meeting HIPAA Standards: HIPAA General Information, available at http://www.tricare.osd.mil/hipaa/geninfo.html

[9] Ingrian Networks, Addressing HIPAA Guidelines, available at http://www.ingrian.com/solutions/hipaa.html

[10] Id.

[11] supra note 2

[12] Centers for Medicare and Medicaid Services, The Health Insurance Portability and Accountability Act of 1996 (HIPAA), available at http://cms.hhs.gov/hipaa/

[13] supra note 2

[14] Id.

[15] Insure.com: Insurance Shopping Made Fast and Easy, HIPAA: Your Rights to Health Insurance Portability, available at http://www.insure.com/health/hipaa.html

[16] Henry E. Brady, et al., Health Status, Health Insurance, and Worker Mobility: A Study of Job Lock in California, available at http://medicine.ucsf.edu/programs/cwhs/2000/abstract.kn00.htm

[17] Jim Selby, American Health System Leaves a Growing Number of Workers Without Coverage, Alberta Federation of Labour, available at http://www.telusplanet.net/public/afl/LabourNews/oct02-27.html

[18] U.S. Department of Labor, Health Plans and Benefits: Portability of Health Coverage (HIPAA), available at http://www.dol.gov/dol/topic/health-plans/portability.htm

[19]  United States Department of Health and Human Services, News Release, CMS Named to Enforce HIPAA Transaction and Code Set Standards HHS Office for Civil Rights to Continue to Enforce Privacy Standards, Oct. 15, 2002, available at http://www.hhs.gov/news/press/2002pres/20021015a.html

[20] supra note 10

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] supra note 14

[26] Id.

[27] supra note 10

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Centers for Medicare and Medicaid Services, HIPAA Insurance Reform: Health Insurance Portability and Accountability Act, 5 Steps to Understanding How HIPAA May Affect You, available at http://cms.hhs.gov/hipaa/hipaa1/content/hipsteps.asp

[39] Id.

[40] Id.

[41] Id.

[42] U.S. Department of Labor, Health Plans & Benefits: Continuation of Health Coverage – COBRA, available at http://www.dol.gov/dol/topic/health-plans/cobra.htm

[43] Id.

[44] Id.

[45] supra note 10

[46] Beacon Partners: Health Care Management Consultants, Guide to Understanding and Complying with HIPAA Security and Privacy Regulations, originally published Feb. 1, 2000, revised Jan. 8, 2001, available at http://www.beaconpartners.com

[47] Id.

[48] Centers for Medicare and Medicaid Services, The Health Insurance Portability and Accountability Act of 1996 (HIPAA), available at http://cms.hhs.gov/hipaa/

[49] United States Department of Health and Human Services, HHS Announces Electronic Standards to Simplify Health Care Transactions, Aug. 11, 2000, available at http://www.hhs/gov/news/press/2000pres/20000811.html

[50] Centers for Medicare and Medicaid Services, Health Insurance Portability and Accountability Act (HIPAA) – Administrative Simplification, available at http://cms.hhs.gov/hipaa/hipaa2/default.asp

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] United States Department of Health and Human Services, OCR Privacy Brief, Summary of the HIPAA Privacy Rule, last revised April 2003.

[56] Id.

[57] Id.

[58] supra note 41

[59] Id.

[60] Id.

[61] supra note 43 at 2

[62] Id. at 3

[63] Id.

[64] Id. at 4

[65] Id.

[66] Id.

[67] supra note 41

[68] supra note 43 at 18

[69] Id.

[70] Id.

[71] Id.

[72] 67 Fed. Reg. 31469, 31470 (May 9, 2002).

[73] Gatewood v. Washington Healthcare 933 F.2d 1037 (D.C. Cir. 1991).  See also, H.R. Rep. No. 241, 99th Cong., 1st Session, Pt. 1, at 27 (1985); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268 (6th Cir. 1990).

[74] Gatewood v. Washington Healthcare 933 F.2d 1037 (D.C. Cir. 1991).

[75] Arrington v. Wong 19 F. Supp. 2d 1151 (1998) (quoting James v. Sunrise Hosp. 86 F.3d 885, 887 (9th Cir. 1996).

[76] 67 Fed. Reg. 31469, 31470 (May 9, 2002).

[77] 42 CFR 489.24 (2003).

[78] An emergency medical condition is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in-(A) Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (B) Serious impairment to bodily functions; or (C) Serious dysfunction of any bodily organ or part… .  42 CFR 489.24(b).

[79] 42 CFR 489.24 (c).

[80] Id.

[81] A transfer to another medical facility will be appropriate only in those cases in which—(i) The transferring hospital provides medical treatment within its capacity that minimizes the risks to the individual'’ health and…the health of the unborn child; (ii) The receiving facility (A) has available space and qualified personnel for the treatment of the individual; and (B) has agreed to accept transfer of the individual and to provide appropriate medical treatment… .  42 CFR 489.24 (d).

[82] 42 CFR 489.24 (d)(ii)(A).

[83] 42 CFR 489.20 (2003).

[84] 64 Fed. Reg. 61353 (November 10, 1999).

[85] 67 Fed. Reg. 31469 (May 9, 2002).

[86] Id. at 31471.

[87] Id.

[88] Id.

[89] Id.

[90] 67 Fed. Reg. 31469, 31471 (May 9, 2002).

[91] Id.

[92] Id.

[93] Id. at 31473.

[94] Id.  [I]n most cases in which a request is made for medical care that clearly is unlikely to involve an emergency condition, an individual’s statement that he or she is not seeking emergency care, along with brief questioning by medical personnel is enough to establish that the individual does not have an emergency condition, thereby satisfying the hospital’s EMTALA obligation.

[95] Id. at 31473-74.  “We believe this proposed policy is appropriate because it would not be consistent with the intent of the [statute] to deny its protections to those individuals whose need for emergency services arises upon arrival on hospital on-campus property at the hospital’s main campus but have not been presented to the dedicated emergency department.”

[96] Id.

[97] Id. at 31475.

[98] Id.

[99] Id.

[100] Id. at 31476.

[101] Id. at 31476-77.  “Dedicated emergency department” would mean a specially equipped and staffed area of the hospital that is used a significant portion of the time for the initial evaluation and treatment of outpatients for emergency medical conditions, as defined in § 489.24(b), and is either located : (1) On the main hospital campus; or (2) off the main hospital campus and is treated by Medicare as a department of the hospital. Id. at 31472.

[102] Id. at 31477.

[103] Id.

[104] Hardy v. New York City Health Hospitals, 164 F.3d 789 (2nd Cir. 1999) (quoting Bryan v. Rectors and Visitors, 95 F.3d 349, 351 (4th Cir. 1996)).

[105] Id.

[106] Id. (citing Gatewood v. Washington Healthcare 933 F.2d 1037, 1041 (D.C. Cir. 1991).

[107] Id.

[108] 42 U.S.C. 1395dd(f).

[109] 42 U.S.C. 1395dd(d)(2)(A).

[110] 131 Cong. Rec. S13904 (Oct. 23, 1985) (quoting Senator Durenberger).

[111] “Hospitals can be found in violation of EMTALA and/or their Medicare Provider Agreement if they fail to (1) comply with hospital policies and procedures that address the EMTALA provisions, (2) report suspected inappropriate transfers (this applies to receiving hospitals), (3) post required signs, (4) maintain transfer records for 5 years, (5) maintain a list of on-call physicians, (6) maintain a central log on each individual that comes to the hospital seeking emergency services, (7) provide appropriate medical screening, (8) provide stabilizing treatment, (9) provide examination or treatment without a delay in order to acquire about payment status, (10) provide appropriate transfer, (11) provide whistleblower protections, and (12) meet receiving hospital responsibilities (nondiscrimination).”  United States General Accounting Office, Report to Congressional Committees, Emergency Care: EMTALA Implementation and Enforcement Issues, 6 (June 2001) (hereinafter EMTALA Implementation and Enforcement Issues).

[112] Id. at 8.

[113] Id.

[114] Id.

[115] Id.

[116] Id. at 9.

[117] Id. at 4.

[118] Id. at 9.

[119] Id.  See also Office of Inspector General, The Emergency Medical Treatment and Labor Act: The Enforcement Process (January 2001) available at http://www.dhhs.gov/progorg/oei.

[120] EMTALA Implementation and Enforcement, supra note 72, at 4.

[121] Id.

[122] Id. at 10.

[123] Id. at 9.

[124] Amy Snow Landa, AMA probes emergency medicine woes, AMNEWS (July 16, 2001) available at http://www.ama-assn.org/sci-pubs/amnews/pick_o1/gvsa0709.htm.

[125] Arent Fox, Alert: Recent GAO Report Critical of EMTALA (August 14, 2001).

[126] Society for Academic Emergency Medicine, SAEM Response to the GAO about EMTALA (February 28, 2001) available at http://www.saem.org/newsltr/2001/may.june/gaolette.htm.

[127] 67 Fed. Reg. 31469, 31471 (May 9, 2002).

[128] 64 Fed. Reg. 61353-54 (November 10, 1999).

[129] Id. at 61354.

[130] Id. at 61355.

[131] Id.

[132] Id.

[133] Office of Inspector General, The Emergency Medical Treatment and Labor Act: The Enforcement Process (January 2001) (hereinafter The Enforcement Process) available at http://www.dhhs.gov/progorg/oei.

[134] Id.

[135] Id.

[136] EMTALA Implementation and Enforcement, supra note 72, at 11.

[137] Id.

[138] See Amy Snow Landa, supra note 124.

[139] See Emtala Implementation and Enforcement, supra note 72; The Enforcement Process, supra note 133.  See also, Amy Snow Landa, supra note 124.