Pines leads innovation at a large physician-owned group and is an emergency medicine professor.
In 2018, a 13-year-old boy was diagnosed with testicular torsion in a Tennessee emergency department (ED). Urgent surgery was required. The ED had no on-call urologists. The ED physician requested transfer to a second hospital. The on-call urologist refused to accept the transfer and recommended transferring the patient to another facility.
The Tennessee Office of the Inspector General alleged that the second hospital violated the federal Emergency Medical Treatment and Active Labor Act (EMTALA) by refusing to accept an appropriate transfer when it had the capacity and capability to treat the boy. The case resulted in a $40,000 settlement against the hospital.
Trends in EMTALA Complaint Reporting
In May 2024, CMS announced a new webpage to allow anyone to anonymously report potential EMTALA violations with only a few bits of information. The goal is to increase reporting by making it easier to file complaints. Reporters of potential violations are commonly clinicians or patients. Yet anyone can report, even a family member.
ED visits with EMTALA violations appear to be very rare — one 2017 study found that 0.00017% of ED visits from 2005 to 2014 resulted in an EMTALA violation.
Why is this the case? Low rates of EMTALA complaints have been in part because some clinicians — who often have the greatest knowledge about whether a violation occurred — are afraid to report them. Because states also regulate licensure, clinicians have concerns that notifying the state about potential violations in their hospital could lead to action against them by hospitals or by the state against their license, especially if they were involved in the case. Hospitals are also unlikely to report each other, for fear of retaliation. Finally, patients may not have much knowledge about their rights under EMTALA or may not know how to report if they believed their rights were violated.
Why Does EMTALA Matter?
EMTALA aims to eliminate discrimination in EDs and hospitals. It prevents hospitals from refusing patients, especially when they don’t have the right type of insurance, can’t pay, or for other reasons (e.g., a patient is a non-U.S. citizen).
EMTALA requires that hospitals that accept Medicare insurance — which is almost all hospitals — provide a medical screening examination by a qualified professional. If an emergency medical condition exists (for example, a stroke, heart attack, testicular torsion, etc.) the hospital is required to provide stabilization and, if needed, transfer the patient to a facility with the expertise needed to treat the condition. It also requires that hospitals accept patients with emergency medical conditions if they have the capacity and expertise to treat them. EMTALA also applies to ambulance companies when they are operated by hospitals.
In the past, all EMTALA reporting was through a hodge-podge of state websites, which sent complaints to CMS to get approval for investigation. If EMTALA is found to have been violated, the physician and hospital may be subject to large fines, potential exclusion from billing the Medicare program, and malpractice actions separate from EMTALA.
What’s the New Reporting Process?
To report a potential violation directly to CMS, the new webpage requires:
The name of the hospitalWhat occurred, including dates and who was involvedThe reporter’s name and contact information is requested but no longer required if they choose to file anonymously
Once it’s reported to CMS, there does not need to be separate reporting through state websites. Yet, state websites are still open for direct reporting.
Potential EMTALA violations can occur throughout the course of an ED visit or hospitalization. This may include:
Failure to register an ED patient seeking care (e.g., telling a patient to go directly to another facility without logging them in).Not having a qualified medical staff member screen for an emergency medical condition (e.g., an intoxicated or psychotic patient comes to an ED and is turned away).Failure to stabilize a patient with an emergency medical condition (e.g., a patient with dizziness and blurred vision is sent directly from the ED to an ophthalmologist, and is later diagnosed with a stroke).A hospital failing to accept transfer for a patient with an emergency medical condition when the hospital has the expertise (e.g., the testicular torsion case above).Transferring a patient with an emergency medical condition without records or without the recipient hospital accepting the patient.An inappropriate transfer of a patient with an emergency medical condition (e.g., transferring a patient from an ED to another hospital with a condition that has not been stabilized when the transferring hospital has resources to treat the patient).Not screening and stabilizing an obstetric patient in active labor.
How Might Things Change?
The new webpage could lead to big changes in healthcare by shedding light on potential discriminatory activity that may be underreported. Hospitals take EMTALA violations very seriously. How hospitals address EMTALA-related protocols (e.g., ED evaluation and transfer processes primarily) will change if the new website leads to a big uptick in violations reported to CMS.
Since the onset of the pandemic, EDs have had increasingly dysfunctional operations due to crowding, boarding, nursing shortages, and other causes. This environment may increase risks of EMTALA complaints with longer waits to be seen, more time spent waiting in the ED, and waiting for transfer to other hospitals. Additionally, a hospital that “routinely keeps patients waiting so long that they leave without being seen” without an appropriate medical screening examination by a qualified provider is likely in violation of EMTALA, according to the HHS Office of Inspector General.
This is one potential downside of the new reporting process: it could flood the system with complaints. Each investigation requires considerable energy to adjudicate by the government, lawyers, and hospital staff, potentially generating mountains of administrative work.
But ultimately, focusing hospital efforts on improving the way the EDs function could improve the safety of the healthcare system for everyone.
Jesse M. Pines, MD, MBA, MSCE, is chief of clinical innovation at US Acute Care Solutions, a professor of emergency medicine at Drexel University, and a clinical professor at George Washington University.
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