Healthcare Hypocrisy: How Politicians Hide Behind the 1986 EMTALA Law to Avoid Healthcare Reform

Yves here. Please welcome Dorothy McNoble, a practicing surgeon who has an interest in health care policy. Her first post focuses on the not-sufficienty-recognized way that the requirement that hospitals accept emergency room patients has stymied health care reform and how the ACA was designed in part to alleviate this “unfunded mandate” and reduce the number of patients coming to emergency rooms for primary care (whether by design or by waiting until manageable conditions became acute).

I must confess to having a personal interest in this article, since I’ve had a big dose of emergency room visits this month. I considered myself lucky in that my insurance policy covers medical care from any provider in the world and so paid for these incidents (in addition to being a hoary old indemnity plan, it also has a low deductible). But it may be more correct to see it as the hospitals that were lucky, since they were obligated to treat me regardless of my ability to pay and they will be paid.

Hoever, this article mentions an issue in passing: how Obamacare has reduced the load on emergency rooms. The MD’s wife who accompanied me to Cedars Sinai mentioned that, and while the plural of anecdote is not data, my experiences confirmed that.

In LA, I got into a room in less than 15 minutes after being admitted, despite not having anything life threatening, and was by two different doctors and discharged in 5 hours. It would have been even faster except when my eye un-numbed from the pain-killling eyedrops, it still felt like I had something in it, so I went back and had a doctor who wound up being a second doctor, give the eye a really good look to make sure there was nothing in it.

This took place on a Saturday night, which is presumably a prime time for incidents. Similarly, on a Sunday night (really Monday AM) at UCSF, which is a bad time, since an evening of people came in ahead of me, I saw a doctor in 3 hours who established I didn’t have any of the worst case scenarios for the sudden deterioration of vision in my right eye (sudden onset glaucoma or a detached retina). By 6:30 AM two opthalmologists (one I think an intern, but still…) examined me, when the ED had led me to expect I’d have to wait until the eye clinic opened at 8:00 AM. So that was a bit over 6 hours after arrival.

By contrast, the last time I had a scare (and it was only a scare) in 2009, pre Obamacare, I went to Mount Sinai in NYC on a sunny Sunday afternoon, which ought to have been a dead time, and the ER staff confirmed that it was slow. Even so, seven hours later, I had only been moved to a gurney and a doctor chatted briefly with me then. Based on what he said (hardly an exam, but “Oh you take X [snort]?” meaning my symptoms could be explained by the one prescription I was taking) I decided to leave. It was hardly good patient behavior but I thought the thing I was worried about (deep vein trombosis, when I have no family or personal history and hadn’t been on a plane) seemed pretty unlikely to begin with, so having the doctor say my symptoms were attributable to my meds was all I needed to know.

But the bigger point was that in 2009, it was clearly going to be another 6 hours minimum before I would have been seen properly, much the less tested, so I was on track to being there for 18 to 24 hours before I got an answer based on test results. So the load on emergency rooms, and the resulting increase in risks to people suffering from life-threatening conditions, like strokes or serious injury due to an accident, and discomfort to everyone else, is a hidden cost to everyone if Obamacare is rolled back.

By Dorothy J. McNoble, MD, JD, who can be reached at Badmedicine005-at-gmail.com

A 46 year old man comes to the hospital by ambulance for severe abdominal pain. He is diagnosed with a perforated ulcer and undergoes emergency surgery. He receives post-operative fluids, antibiotics, pain medication and ulcer medication. He recovers after five days and is discharged. He is unemployed, has no insurance and neither the hospitals nor the physicians receive any payment for his care.

This story of timely and appropriate emergency medical care delivered to patients unable to pay for it occurs tens of thousands of times a day in this country. Though physicians and hospital administrators might provide such services for moral or ethical reasons, it is unnecessary to rely upon the consciences of these providers since a law mandates that they provide care.

Specifically, The Emergency Medical Treatment and Active Labor Act (EMTALA), passed by Congress in 1986 unequivocally requires that hospitals provide emergency medical and surgical care and other ancillary services to patients requesting this care irrespective of their ability to pay.

This law, though rarely mentioned by name during discussions of existing and proposed health care policy or law, has a profound and pervasive impact on the delivery of health care in this country. In fact, there is no area of government or privately provided health care which is not affected by the provisions of EMTALA and by the current economic sequela of this law.

In particular, many of the provisions of the Affordable Care Act were designed to remove some of the burdens imposed by the EMTALA. If the ACA is repealed, the benefits and burdens of EMTALA will emerge as more important than ever. It’s therefore important to make an explicit examination of EMTALA. Medicare, Medicaid, the Affordable Care Act and even rules governing private insurance cannot be fully understand without acknowledging the existence of this long standing health care safety net.

The Origins of EMTALA

EMTALA was passed in 1986 and requires that patients needing emergency medical care not be discharged or transferred to another hospital until the patient has received a medical screening exam. If the patient is found to have a condition requiring urgent medical or surgical care, that patient must receive the care unless he or she consents to discharge or transfer to another facility. The patient must receive this care without regard to his insurance status or his ability to pay for the care.

The law is an unfunded mandate. That is, unlike Medicaid, Medicare and the Affordable Care Act which establish taxpayer subsidy for the health care provided, EMTALA mandates the delivery of care, but contains no provision for funding the care. The law, as will be discussed below, has been interpreted very broadly and, as a result, it has a significant financial impact on health care in this country.

Uncompensated care represents up to an estimated 6% of total hospital costs. This number does not include the costs borne by the physicians and other providers as opposed to the institutional hospital costs, so the 6% is an underestimate of the cost. The hospitals in urban and rural areas with large numbers of medically indigent patients assume a much greater proportion of this cost and since the law is silent on funding and contains no provisions for reimbursement, there is no mechanism for spreading the cost among hospitals in a region in order to better distribute the loss.

In order to appreciate the breadth of the law, we’ll look at some examples illustrating the requirements of the law and how EMTALA can be invoked.

Non-Discrimination Under EMTALA

A 32 year old start-up billionaire in Silicon Valley is injured in a bicycle accident. He suffers a ruptured spleen and requires urgent splenectomy. He is hospitalized for approximately ten days and is discharged when he has fully recovered.

A 32 year drug dealer is assaulted during a drug transaction and suffers a ruptured spleen and requires urgent spelectomy. He is hospitalized at the same facility as the bicycle accident victim. He too is hospitalized for ten days and is discharged when he has fully recovered.

Both patients undergo the same operation, spend the same number of days in the ICU and on the ward and receive the same post-operative care.

This rather pedestrian example is designed to illustrate one of the fundamental mandates of EMTALA. Not only must medical care be identical for paying and non-paying patients, but any discrimination based upon socio-economic status, personal hygiene, behavioral issues (within reason), is prohibited under the law. Hospitals and providers are forbidden from proffering any suggestion that care could be withheld or in any way altered due to any of these considerations. The law itself incorporates a “what would Jesus do?” standard of care.

The Prohibition Against Involuntary Transfer Or Discharge

A 52 year old woman with chronic alcoholic pancreatitis is seen in the emergency room for an exacerbation of her condition. She is having pain and vomiting and requires hospital admission. The emergency room physician has contacted the County Hospital to request transfer since the patient is uninsured and she has had multiple admissions to several hospitals, including the County Hospital, in the past. The County Hospital accepts the admission, but the patient refuses to be transferred and insists on admission to the private hospital where she has sought care. She is admitted as she has requested.

A 44 year old uninsured, indigent man sustains a distal humeral fracture (a break in the bone of the upper arm). The emergency room physician reduces the fracture (aligns the two segments of bone into a straight line) and splints the arm. The fracture is stabilized temporarily and there is no threat to the nerves, blood supply or muscle of the arm as long as the splint is in place. The ER arranges for the patient to be seen the next day in the orthopedic clinic of the publically funded County Hospital so that definitive treatment of the fracture, including possible surgical placement of a rod in the center of the bone to stabilize it, can be undertaken.

The patient returns to the original emergency room the next day, having missed his orthopedic appointment in the County Hospital. He has loosened the splint and the bone alignment has been compromised. The emergency room physician contacts the county hospital orthopedist and asks her to accept the patient in inpatient care and treat the fracture. The County orthopedist refuses the request and asserts that the fracture can be managed on an outpatient basis as long as the bone is realigned and the splint replaced. The ER physician requests the patient to allow this treatment, but the patient refuses and says that he wants to be admitted to the hospital to which he has returned and receive treatment, including surgery in this hospital. The patient is admitted to the hospital and taken to surgery where the definitive rod placement is made.

The patient is hospitalized for several days because he does not find the oral pain medicine provides adequate post-operative relief and demands intravenous pain medicine for several days. When the surgical site is healed and he is willing to use oral pain medicine, he is discharged.

These examples illustrate several of the mandates of EMTALA and highlight some of the logistic and practical problems posed by the law. Hospitals may neither discharge nor transfer patients needing medical care without the patient’s consent. In theory, the law allows transfer to facilities such as county hospitals which receive federal, state and local funds to provide care for indigent patients.

In practice, however, this transfer of care is often unsuccessful. Many patients, especially those with recurring conditions, understand their right to be treated at the hospital to which they present. Although perhaps not able to identify EMTALA by name, many patients know the “no involuntary transfer” provision in substance.

Moreover the lack of insurance sometimes results in more expensive inpatient care such as the case of the patient with the broken arm who could have been managed electively with a secure splint until such time as a county clinic appointment were to be made available. He refused to comply with maintaining a secure splint and demanded more urgent surgical treatment at the hospital of his choice.

In contrast, an insured patient who does not want to incur unreimbursed expenses, may find that he or she must accept limitations on care such as placement in a splint for several days, until an in plan orthopedist is able to see the patient. Arguably, the hospital could have insisted that the patient in this example agree to replacement of the splint and transfer to County care, but, many hospitals feel compelled to err on the side of providing full treatment rather than risk the expense and penalties of a possible EMTALA violation.

Private Hospitals’ Own Safety Net from the EMTALA Mandate – The Public Hospital System

Historically, the health care system in this country has had an extensive public hospital system. Most of these hospitals are county and city based and are funded almost exclusively by federal, state, county and even city funds. The staffs are salaried rather than dependent upon patient billings and many contain programs specifically designed to assist the medically indigent, such as expanded social services programs, drug and alcohol treatment and assistance for homeless services. Many of these hospitals are well-known and well-respected for their patient care and their research programs.

Increasingly, however, these hospitals cannot care for the large numbers of uninsured patients. This burden falls upon the private hospitals, especially those in urban areas. As alluded to the in the examples above, transfer to these hospitals is often very difficult.

For example, it is clear in the EMTALA mandate that all patients, irrespective of immigration status be provided the same treatment as would a citizen. While many county hospitals provide care for undocumented immigrants, these hospitals do rely on their mandate to care for the citizens of their respective jurisdictions to refuse transfer of undocumented immigrants.

However, the main impediment to relying upon county and public hospitals to provide care for the uninsured is, of course, financial. In my experience, County Hospitals almost never accept patient transfers from private community hospitals. Fewer than 5% of patients for whom transfer is sought are granted a transfer. This includes patients who have received care at a County Hospital and are brought by ambulance to a private hospital for a complication following discharge from the County Hospital.

It is not uncommon for private community hospitals to be saddled with care for patients who have been treated and released from County Hospitals. County Hospitals are often at capacity. As long as the patient who has been discharged from their facility has been admitted to an emergency room at another hospital, the county hospitals have no legal obligation to resume care for the patient. Neither EMTALA nor any other law requires that publically funded hospitals provide any particular level of indigent care, or even agree to accept patients for whom they have begun providing care.

Moreover, County Hospitals in some jurisdictions are often on “divert” meaning that they are not accepting ambulances which would be bringing patients to their facility. These ambulances are “diverted” to other hospitals in the area and, as a result, those hospitals often see a disproportionate number of uninsured, emergency patients.

Thus, for two major reasons, patient “preference” for private hospital care and the public hospitals own resources limitations, the care of the medically indigent increasingly falls upon private hospitals and upon private practice physicians who have to rely on increasing their compensated patient billings to compensate for the provision of unreimbursed care.

Co-Pays, Deductibles and Pre-Existing Conditions – The Effect of EMTALA

A 55 year old man presents to his primary care doctor for rectal bleeding. He is found to be anemic and the physician recommends a colonoscopy and refers the patient to a gastroenterologist. The colonoscopy is scheduled, but the patient cancels the procedure because the gastroenterologist demands a $4000 payment toward the expense of the procedure. The patient has a plan with a $5000 deductible.

The patient continues to bleed and three weeks after the cancelled colonoscopy, he presents to the emergency room with the bleeding and is found to have worsening anemia. At the time of admission to the ER he suffered a syncopal episode (he fainted), and his bleeding has increased. No outpatient colonoscopy has been rescheduled because the patient does not have the requisite co-pay.

The emergency room staff and the admitting staff decide to admit the patient to the hospital and schedule a colonoscopy as an inpatient. They find a non-obstructing, not actively bleeding 4cm colon cancer. The patient undergoes definitive colon resection, recovers and is discharged.

The hospital bills the patient for his portion of the care. However the patient is unable to pay the deductible or co-pay. Under the patient’s plan, no services can be reimbursed until the patient meets his deductible, so that all of the care, including the costs which exceed the deductible remain unpaid.

A 32 year old woman undergoes an uncomplicated delivery. Following the birth of her child, she resigns from her job and obtains an individual health insurance plan. The plan excludes coverage of pre-existing conditions during the first 18 months of the coverage.

The woman experiences right upper abdominal pain and is seen by her primary care doctor who orders an ultrasound and diagnosis gallstones with intermittent biliary colic (gallbladder attacks). The patient is referred to a surgeon who concurs with the diagnosis and schedules an elective laparoscopic cholecystectomy.

However, when the surgeon submits a request for authorization for the insurance, he is notified that the gallstones were present on the patient’s pre-natal ultrasound, though she was asymptomatic at the time. The authorization is denied because the gallstones are a pre-existing condition. The patient attempts to manage any subsequent gallbladder attacks with a low fat diet and intermittent use of pain medicine. However, two months before her 18 month waiting period has elapsed, she develops fever, severe abdominal pain and jaundice. She is seen in the emergency room and diagnosed with an infected gallbladder and a gallstone trapped in the duct to the liver. She undergoes an endoscopic removal of the trapped stone and a laparoscopic removal of the gallbladder. She recovers, but her insurance does not cover any of the costs of the surgery or hospitalizations.

A 27 year old man purchases an individual insurance plan after beginning free-lance consulting work for a start up. He has no medical problems and takes no medicine. Two months after purchasing the plan, he develops abdominal pain and vomiting and is found to have a bowel obstruction from an adhesion band which formed at the time of his appendectomy 24 years earlier. He undergoes a successful laparoscopic cutting of this band and freeing of the bowel and is discharged from the hospital two days after surgery with no complications. The charges for the surgical care and the hospitalization are denied by the insurance company because he did not state that he had had an appendectomy under his past history.

Each of these cases may seem to be exceptional or unusual and not representative of the usual practice of insurance companies. However, examples such as these are actually fairly commonplace.

Moreover, what these examples do demonstrate is the critical role of EMTALA in allowing insurance companies to deny payment for care with relatively few deleterious medical consequences. That is, if denial of payment for care equated with denial of care, at least as far as emergency care goes, there would be significantly more pressure on insurance companies to cover the costs of care under their plans, and not engage in convoluted mechanisms to avoid payment. In fact, hospitals and physicians sustain millions of dollars in losses every year due to insurance companies’ denial of payment for care provided. As noted above, a significant amount of this uncompensated care results from emergency room visits and other emergency medical and surgical care.

EMTALA as a Substitute For Social Services

A 48 year old homeless man is brought by ambulance to the emergency room with a large abscess on his leg. He is admitted to the hospital, taken to surgery and provided with post-operative treatment including intravenous antibiotics and wound care. After four days he is ready for discharge on oral antibiotics and outpatient visiting nurse wound care. However, as he is homeless and uninsured, he is kept in the hospital for another ten days because he requires daily wound care. Visiting nurse services are unavailable to uninsured patients.

A 58 year old woman is brought to the emergency room with the acute onset of right hemiplegia (inability to move her right side). A CT scan demonstrates an acute stroke. She is admitted and given appropriate acute therapy. After several days, she recovers some function of her right side and can walk with a walker, but cannot manage complete self care. That is, she cannot shower, bathe or prepare food without assistance. She is a good candidate for transfer to an acute rehabilitation hospital and she is gradually having improved function. However, she is uninsured and none of the rehabilitation facilities will accept her. She remains in the acute care hospital for another five weeks until her recovery plateaus and she can be discharged back to her apartment.

A 45 year old man is brought to the emergency room in a coma. Screening laboratory studies demonstrate that he is in a diabetic coma, though he had not previously been known to be a diabetic. He is given insulin and IV fluids and quickly recovers. After several days he is on a stable insulin regimen with good control of his blood sugar. He is discharged after receiving thorough diabetic management instruction and given a prescription for insulin and for glucose monitoring equipment. He has no insurance and is therefore referred to the county medical center internal medicine department and has a scheduled appointment in that clinic one week after discharge.

Four days after discharge, he is brought back to the emergency room again in a diabetic coma. He has a cardiac arrest and is unable to be resuscitated. The unfilled insulin and glucose monitoring prescriptions are found in his pocket.

As can be seen from the first two examples, complex modern medical care includes more than just acute hospitalization. Wound care and rehabilitation services are just two of the many ancillary services a hospital must be able to provide itself or, as is increasingly the case, contract with less expensive specialized provider services.

EMTALA makes clear that all care must be carried to completion, which itself includes any care which would be provided to insured or paying patients. Hospitals typically have contracts with these ancillary service providers, but these providers are not subject to the EMTALA mandate and therefore have no obligation to accept uninsured patients in transfer. Inpatient acute hospitalization is, in many cases, the most expensive and least efficient alternative, yet for the uninsured patients it is the only alternative.

In the first case, uninsured patients are general ineligible for visiting nurse and other home-based therapies. However EMTALA has clear guidelines which state that a patient cannot be discharged until he or she can provide for all needs including mobility, wound care, medication, feeding and all other personal and medical care needs. Homelessness presents a special set of problems and there are thousands of patients kept in hospitals for extended periods of time until social services departments can secure discharge housing, even when there are no specific medical needs. This inpatient care can be expensive and inefficient. In the case of the woman with the stroke, an acute rehabilitation facility would have several hours a day devoted to physical and occupational therapy and might result in a more accelerated recovery. The inpatient acute hospital has a limited ability to provide this type of service.

The final example, the case involving the man in a diabetic coma, illustrates the sometimes blurred boundary defining the mandate of EMTALA. The law does not require follow up, outpatient treatment or provision of discharge medications for patients who are otherwise stable for discharge following treatment of an acute problem. However, EMTALA does require that the hospital assist patients in obtaining follow up in county or other public hospital facilities. In the case described above, there may be questions about the adequacy of the discharging hospital’s provision of follow up care.

It could be argued that if the patient seemed incapable of buying medicine or following a new and complex medical regimen, then the patient was not eligible for discharge given the EMTALA mandate to insure that he or she be able to provide self- care after discharge.

EMTALA and the Affordable Care Act

The Affordable Care Act was designed to reduce reliance upon expensive emergency room care and, by extension on the unfunded EMTALA mandate. A review of the four major provisions of the Act demonstrates how this goal could be accomplished.

First, the dramatically increased funding for Medicaid, along with the expansion of Medicaid eligibility, was intended to provide the previously uninsured medically indigent with elective and preventative care and, when emergency care was necessary, provide physicians and hospitals giving this care, some reimbursement.

The California experience is illustrative of how the ACA could achieve this goal of reducing reliance on emergency care. The California Medicaid program (Medi-Cal) was poised to take advantage of the Medicaid expansion provision of the ACA. California received nearly a third of the available increased Medicaid funding from the federal government during the first two years of the Act.

The State expanded significantly the eligibility for Medi-Cal coverage among its citizens. Prior to the ACA, Californians could only qualify for Medi-Cal if they had certain chronic health conditions or had custodial care of a minor. After the ACA Medicaid expansion, Medi-Cal coverage became available to millions of Californians who were medically indigent simply due to being unemployed, underemployed or otherwise meeting the income criteria. Thus elective and preventative care, previously unavailable to low income Californians, could now be provided. (It must be noted that due to the very limited participation in the Medi-Cal program by California physicians, this guarantee has not been fully realized.)

Moreover, physicians and hospitals providing emergency care to these patients could now receive some reimbursement.

Second, the employer and individual mandates, though very controversial, were designed to require individuals to obtain, and employers to provide, insurance for those not previously covered. Again, this would increase the number of patients now able to obtain less expensive, elective care. The federal subsidy for obtaining commercial insurance was intended to increase compliance with the mandate. Those individuals complying with the mandate, and employees of employers forced to comply with this mandate, would have insurance policies which allowed them to access previously unavailable elective care.

Finally, the more popular ACA provision which abolished the pre-existing conditions exclusion from insurance coverage for would mean that people with “chronic”conditions such as diabetes, arthritis, cancer diagnoses and even obesity could have continuity in their care.

Historically, patients lose, change and reacquire insurance coverage routinely, and, as a result often suffer from the robustly enforced pre-existing condition exclusions of their insurance policies. Under the ACA, these patients could expect some continuity of care, preservation of their provider network and even coverage for their medications. Moreover, this patient population often seeks and receives emergency care, and under the ACA, the providers and hospitals could be paid for this frequently-needed emergency care.

The success of the ACA in insuring this increase in elective and preventative care and the decreased reliance upon emergency care, and thus on the unfunded mandate of EMTALA, may never be known. There is very little stable data at this point, and “repeal and replace” could occur in short order. The proposed provisions of the replacement law, at least as far as they can be ascertained, will likely result in increased reliance upon emergency, unfunded care. One proposal is to return all responsibility for Medicaid to the states and reduce the current federal subsidy by $100 billion dollars. In this scenario, the rolls of the medically indigent would swell.

The unpopular individual and employer mandates may be repealed. If so, individuals and employers, feeling burdened by the requirement to pay for health insurance, will drop coverage. Health care emergencies will inevitably arise among those choosing to drop coverage, yet EMTALA will be there to insure emergency care even when there is no insurance coverage.

Finally, Dr. Price has proposed re-instating the right of insurance companies to exclude coverage of pre-existing conditions for 18 months. Patients with chronic and recurrent acute medical conditions will in all likelihood again be required to seek emergency care which, in many cases will not be paid for.

The Role Of Emtala In Avoiding The Complex Problem Of True Health Care Reform

In 1986, at the time of the passage of EMTALA, the health care landscape was in many ways different from that which we face today. For example, there were several dozen insurance companies, including many regional plans, and health insurance was an exclusively non-profit industry. Today there are only four major, for-profit insurance plans, and there are plans to merge some of those plans.

Second, historically hospitals were generally single, free-standing, not-for-profit institutions, often funded by religious or other charitable endowments. There were almost no consolidated health care systems, a model which now dominates both the for-profit and not for profit hospital markets.

Though only 18% of hospital systems in this country are for profit institutions, the drive for profitability dominates both the for-profit and not-for-profit- hospital markets. The forces dominating health care at this time are the quest for lucrative “service lines,” such as elective spine and orthopedic care, the drive to increase market share among the well-insured patients,(advertising by hospitals did not exist in 1986 and it is now nearly as ubiquitous as drug company advertising), and the attempt to avoid providing costly, unprofitable care. For example, between 1993 and 2002, the number of emergency room visits in the U.S. grew by 26%, while in the same period, the number of emergency rooms declined by 425.

This changed landscape, namely the conversion of most aspects of health care to a highly profit-driven enterprise, makes the enforcement of EMTALA even more important as a health care safety net. Hospitals and doctors now make a concerted effort to avoid providing free or even reimbursed, but not-profitable care, such as Medicaid. While hospitals cannot exclude Medicaid patients, many physicians refuse to care for these patients electively.

In my own county, my informal survey of the 34 general surgeons in the county, found that only four accepted Medicaid patients. Although I have never found a formal study of the problem, it is my experience that when Medicaid patients present to the ER for an urgent problem, such as recurrent gallbladder attacks, they are more likely than patients with commercial insurance to be sent out with pain medicine rather than receive the definitive surgical care. It is unlikely that in the current financial climate of health care, hospitals would be as willing to care for indigent or even “underinsured” patients if there were not a federal mandate to do so.

As shown above, the EMTALA mandate has evolved to require a fairly expansive definition of emergency care, and, it is therefore remains a very costly proposition, especially for inner city and poor rural hospitals. It is impossible to know what would happen if the EMTALA mandate disappeared tomorrow, but I can predict with confidence that there would be a significant decrease in the amount of unreimbursed care provided by hospitals.

Finally, as the debate on health care reform continues, one should consider whether EMTALA may actually be responsible for allowing politicians and lawmakers to skirt responsibility for coming up with reasonable legislation to fund health care, especially care for the medically indigent.

As long as EMTALA is in place, patients will continue to receive all emergency care and even a great deal of arguably non-emergency care. Patients with strokes, diverticulitis, broken bones and even fingernail infections will be seen and treated irrespective of financial status and without regard to the existence or absence of any program for funding that care. This uncoupling of guaranteed care from payment for that care shields lawmakers from the consequences which would follow if hospitals and providers could turn away uninsured and indigent patients.

EMTALA is, in fact, a “forme frust” of single payer healthcare for the indigent. That is EMTALA requires a broad and deep level of care be provided for all patients, but has no mechanism for private or public funding of that service.

Instead, in our bastardized single player plan, the costs of the care are borne exclusively by the doctors and hospitals providing the care with no attempt to provide a sensible risk spreading plan for the multi-billion dollar EMTALA program.

President Trump and Secretary Price have stated their commitment to reduce this type of cost-shifting in health care. For example, they support the elimination of individual and employer mandates would end the program whereby healthy individuals are required to buy insurance to subsidize the sicker patients.

If the current Administration is serious about elimination unfair cost shifting, it seems that elimination of EMTALA, which is one of the most unfair cost-shifting systems in health care, should also be eliminated. If it is unfair to require healthy patients to purchase insurance to fund the sicker patients, then surely it is unfair to require individual physicians and hospitals to bear the burden of care for the medically indigent.

However, if EMTALA were to be eliminated, and hospitals and physicians responded by eschewing any responsibility for providing uncompensated care, politicians would arguably be faced with the prospect of dealing with a citizenry awash in illness, disease and suffering. I think that lawmakers recognize that EMTALA stands between them and health care chaos, and, in spite of platitudes about a fair distribution of the costs of health care they, will never have the courage to repeal this unfair law and replace it with an honest, universally accessible system of health care.

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44 comments

  1. Jim Haygood

    it is unfair to require individual physicians and hospitals to bear the burden of care for the medically indigent

    Was EMTALA ever challenged on Fifth Amendment grounds? [“…nor shall private property be taken for public use, without just compensation.”]

    Seems like an open and shut case. But given the health care cartel’s de facto exemption from antitrust enforcement, maybe EMTALA is a price worth paying to stay in good graces with its political benefactors.

    Congress: “See what we did to Fannie Mae and Freddie Mac? Now watch us ‘fix’ health care!” :-0

    1. pictboy3

      It’s not without compensation, as hospitals will try and extract their pound of flesh after they’ve treated someone in the ER. People will give fake names or just stay silent, which doesn’t alter their obligation to pay, just the hospital’s ability to collect. That conduct is technically illegal, but for a variety of reasons isn’t enforced. The government is simply forcing the doctors to provide care without discriminating based on the ability to pay, it isn’t saying they have to forego payment. The onus is on the hospital to extract payment, so there isn’t a 5th Amendment case here.

      Likewise, I’m not even sure that providing a service creates a property interest as far as the 5th Amendment is concerned. For something like that, you’d have to go to the 13th Amendment for redress.

  2. jefemt

    Great thoughtful informative article. Would love to see Dr. McNoble’s follow up ‘prescription’ solution for reform.
    My thought is the first dollars from patients are out of pocket, no co-pay, no byzantine obfuscation, free choice to choose provider for whatever services are needed, up to the annual average that seems to pervade modern life in US around $2500. per year per person for services and meds.
    Mandated annual checkups, base-line work, annual dental and vision. For those below an arbitrary income level, those annual services are supported by the Department of Defense budget. A hem…
    A single payor catastrophic backstop beyond the personal no-co-pay out-of-pocket, funded by federal income tax surcharge.
    We need to have skin in the game, feel the pain of the dollar leaving the pocket, associate choices in lifestyle, food, exercise, as we face the music at the doc. Drink less booze, floss and brush your teeth. Walk or ride your bike to work.
    BUT, we also , as a modern first-world civil society (seriously) must recognize the unfortunate reality of accidents, bad genetics, and mix it with compassion for our fellow man.. Our friends mother, daughter, grandparent— or the friend or family member of the guy who keeps the toilets clean in the buildings we frequent– we all of us should have CARE as a given right in our lives. NOT insurance, but CARE. And Executives of health insurance companies, by contrast– are NOT entitled to exorbitant obscene salaries at our expense.
    Where has the sense of the ‘collective we’ disappeared to? Greatest good greatest number?

    Thank you for the thoughtful article and forum for discussion. I am noticing that more and more sites are shutting off comments. Killing community. I applaud you all for allowing dialogue and self-policing of civility. Onward!

    1. a different chris

      Our gracious host has shut the comments off at least once for a while, the “look at me” types then drift away and forget about us then she opens them again. Works surprisingly well (of course I’m still here, so maybe not perfect :D )

    2. Scott

      I join with jefemt in thanking Yves for allowing comments.
      I started as a Godwin Anarchist, and I still agree with him that there are two duties of any legitimate government to their people.
      The type of government doesn’t matter. The government has the duty first to defend, and second to educate.
      From my perspective healthcare is defense. Healthcare is an extension of the CDC. When you live in the cities where the threats are amplified by crowding on subways or at any food counter Tuberculosis is a real threat.
      We worry about the things we can see but since the invention of the microscope we can see more of these threats.
      We can thank those doctors who saved us from SAARs, some of whom died. Ebola is no joke.
      China will tolerate, along with the rest of the world Kim Long un (spell check does not at all allow the regular typing of YONG) because the citizens of North Korea are malnourished and sick. I’ve read that they fear Tuberculosis.
      So I’m not really trying to pander to the right who will spend money for defense before any other budget item. For me it is a practical matter.
      You pay for the health of your citizens as a pragmatic issue.
      In The Good War by Studs Terkel there is the story told by the nurse about how shocked she was at the illnesses so many Americans lived with, were made 4F from.
      While soldiers serve their health is known to be crucially important.
      The philosophy of Ayn Rand, this idea of greed as just great, is stupid.
      Congress votes for the bill, and the Treasury supplies the money.
      We are simply denied access to the good power we as a nation, one way or another, have engineered. The way it is the system is perverted to give all the money from the Treasury to Financial Terrorists looking down on us from the tall buildings of lower Manhattan.
      Doctors and hospitals must be paid, and we have the money, and it is about our government defending us from disease, and that is that.

  3. Dirk77

    Interesting read. In LA I not infrequently would hear lamenting about closures of emergency facilities, presumably due to them being forced to care for everyone – including the many, many poor, mostly undocumented immigrants in LA. But not lately, and I completely did not notice. Score one for ACA.

    As the author states, Congress could repeal EMTALA without replacement, enabling the USA to move closer to a Kolyma model of living. Eliminating public disposal of trash would be next I guess. In the game of bad philosophies I had so hoped other countries would endure the experience and we’d learn from them just the lesson. Apparently not.

  4. Katniss Everdeen

    So, what this erudite defense of the indefensible boils down to is this:

    Having reorganized, in the decades since EMTALA was passed, into a profit-seeking missile that now claims almost one fifth of a multi-trillion dollar economy for itself, and has self-righteously excluded a large portion of the population from even basic care for inability to meet its extortionate financial demands, the “healthcare” industry now regards any requirement to provide pro bono services as unbearably “unfair” and unspeakably financially burdensome.

    Boo hoo. Why oh why won’t those “public” hospitals just step up and let us go merrily on our rent-seeking ways?

    The substance of the criticism seems to be that EMTALA “makes us” treat those who can’t pay in the same way we’d treat those who can. How awful! She never mentions that those are the same patients who are routinely “charged” at the highest chargemaster rates–often far above what would be accepted from “insured” patients–or that these patients are subsequently billed by these put-upon saviors only to be hounded and threatened by bill collectors. Or that many patients refuse recommended treatment that they know they can’t afford.

    I hate to tell the good doctor that we already have healthcare “chaos” in this country, and she should look to her own professional community for the origins. EMTALA does not limit the number of med schools or med students to protect income. It does not place primary care physicians on the lowest level of the compensation totem pole. It does not restrict the provision of routine services by auxiliary personnel. It does not denigrate nutrition, poverty and homelessness as outside the purview of “medicine.” It does not suborn corporate medical profiteering. It does not build marble-encrusted gated medical communities available only to a particular clientele.

    The “profession” itself does those things.

    And she should be careful what she wishes for. Because if the legal arm-twisting of EMTALA goes away, real reform will necessarily come by lowering costs. All of them, including hers.

    1. Eureka Springs

      Thank you, Katniss.

      Dr. Rumsfeld would have said – one goes to the hospital with the system we have, not the system we wish we had. It’s a sick bean counting system. Dr. McNoble is negotiating within said sickness.

      Seems to me what would be excellent adjustments within the confines of the system we have is if uninsured (and would be unable to co-pay or deduct my way through if insured) people like me with likely acute gall bladder problems could seek EMTALA type help whilst my problem is not an emergency, but has been and likely will be again soon. That and making Ins Co’s pay their obligations whether deductible has been met or not.

      Want to eliminate sickness and far more cost reduction than 6% + in adjustment for the parasites? H.R. 676! No excuses, no negotiations.

    2. leadenise

      Katniss, I agree. Dr. McDonald’s perspectve is narrow and self-interested . EMTALA may be unfunded but it ensures you get care, you get equitable care, and the care provided meets community standards. I speak from working experience.

        1. Hypocritic Oath

          The typo seems apropos to me. The McDonaldization of the American healthcare system makes me wonder whether I’m being treated by the fast-food industry rather than the healthcare industry whenever I require medical attention. It sure seems like I’m being treated by Dr. Ronald McDonald or Dr. Hamburglar than an actual physician these days in the delusional world of American exceptionalism.

      1. Yves Smith Post author

        She’s not “self interested”.

        She’s a doctor who is affiliated with several hospitals. She’s not a hospital administrator.

        She gets paid irrespective of what happens to the hospital.

    3. redleg

      Single payer solves the ACA, EMTALA, Medicare, Medicaid, VA problems. It also can address cost of care through bargaining power.
      If people are concerned about how to pay for it (MMT says this isn’t a concern), charge a two cent tax on a roll of TP.

    4. Mark P.

      Katniss Everdeen wrote: Having reorganized, in the decades since EMTALA was passed, into a profit-seeking missile that now claims almost one fifth of a multi-trillion dollar economy for itself …

      And there’s the crux of it. The medical-industrial complex, the FIRE sector, the military-industrial complex and — with student debt as the category of debt that’s now the largest — the education industry are all competing relentlessly to extract from a captive population of 326 million American citizens as much income as they can when those citizens have already undergone decades of wage suppression.

      It’s not sustainable, in any sense.

    5. Moocao

      This comment is gratuitously nasty.

      1. It is not the Physicians that have anything to do with what hospital administration charges. Physicians are paid a salary or a case-basis fee.

      2. The Healthcare Chaos is PARTLY DUE TO EMTALA BEING AN UNFUNDED MANDATE. Prior to Obamacare, the halls of Emergency Departments are literally swamped with people whom have diverted care due to the lack of health insurance. The stories of breast cancer patients whom would have tolerated the now “simple” Herceptin treatment forgoes therapy, and shows up later with septic shock as a result of the necrotic mass from the original cancer protruding from the skin, allowing seeding infections. The Hospital is required to treat this patient (septic shock), but this patient will eventually expire. Hospital gets paid nothing. Medicaid expansion is the reason why this patient doesn’t show up to ER’s as often now. ObamaCare’s emphasis on primary care is sound, problem is that IT DOESN’T GO FAR ENOUGH and mandate insurance to all citizens. Imagine this case happening 100 more times. It would bankrupt the hospital. Therefore, the hospital, as a means to remain solvent, will charge higher prices on all others whom can pay. If the hospital remains insolvent, it closes, denying care for hundred if not thousands of patients within a 60 mile radius. This has happened.

      3. PCP physicians at the lowest compensation of the totem pole as well being the hardest to find for general public: There is a myriad of problems with this, no less due to 1. Physician payments by procedure done 2. Medical Student loan debt, requiring years of high compensation for “paying this off” 3. Market failure in producing PCPs that are not “cream of the crop” 4. Prestige

      4. “It does not restrict the provision of routine services by auxiliary personnel. It does not denigrate nutrition, poverty and homelessness as outside the purview of “medicine.” It does not suborn corporate medical profiteering. It does not build marble-encrusted gated medical communities available only to a particular clientele.” This part is unanswerable, as I am unsure how this piece of personal attack line serves in any further discussion. Medical Billing is separate from how physicians care for patients.

      5. Physicians are trying to help patients, and some are too handsomely rewarded. The profession did not create these things. If you wish to review Hospital Costs, please check Hospital admin vs staff payments and how that ballooned in the past 3 decades.

      6. Personal attacks should not be a policy at Naked Capitalism. This is not Jamie Dimon writing to the readers of NC, and this doctor does not deserve the invectives hurled at her.

      I am quite disappointed to read this comment.

  5. Richard

    Although this article is very thorough, detailed, and informative as to EMTALA and emergency room use, I would challenge the statement in the third paragraph at the start of the article that “…Obamacare has reduced the load on emergency rooms…” That may have been true in the initial years after the ACA was fully implemented, but everything I’m hearing from friends and family who work in hospitals is that it is no longer true. The author’s relatively positive experience with the emergency room treatment at the two hospitals in California may be an exception, rather than the current rule. What I’m hearing from friends and family is that as ACA premiums have gone up and families have switched to higher deductible plans to compensate for the premium increase, that more people are beginning to look at emergency rooms as their medical care provider of first resort. Seems to be especially true in southern, midwestern, and western states that did not expand Medicaid eligibility. It appears that the health insurers and politicians are reverting to the bad old ways in the pre-ACA days.

    1. Code Name D

      Seconded. My brother in law is an EMT and he frequently complains of a perpetual treosh situation at emergency rooms. In fact, much of his activity invalved over-flow tranfers to move criticaly ill patents to open operating rooms. Often, his job invalvs what he called “chasing tables” where they can do laps around town, looking for an open emergency room. Some times even going to nayboring cities.

      And he notes that “closed theaters” strangly become more prevelent when thepatent dos’t have insurance.

      1. Anon

        As a former EMT, I think triage should replace “treosh” in the comment above. Emergency triage is a procedure of quickly assessing the status and survivability of injured victims at a given place and time and providing appropriate treatment.

        1. Code Name D

          I sorry, gifted misspeller at work :P Trying to do it on the phone doesn’t help much either.

    2. kgc

      My Medicare Advantage plan requires me to go to an urgent care facility rather than the emergency room unless (paraphrasing) I’m in a life-threatening condition or close to it. And of course they’ll make the determination after the fact. So I have to consult the manual and record the call to the 24-hour care number if I think I need the ER. Or go to the UC facility to get their approval to go to the ER. Or, if it’s an emergency and I can barely call 911, go to the ER and take the risk that it’s not covered.

      I went to my local UC facility for what was clearly not a life-threatening condition (potential rib fracture), waited I forget how many hours, spoke to a CNA (nurse in training) and was told to come back two days later for an X-ray. I did and was told there was no fracture. The pain not having subsided after several weeks, I went to my primary care physician, who ordered another X-ray, which showed a fracture.

      Would the ER (associated with Columbia-Presbyterian) have been better? I suspect so.

      And I’m over 65 and covered by Medicare….

      1. kgc

        Adding: If I weren’t somewhere on the dreaded Spectrum, I’d have acknowledged that this is a great post. Dr. McNoble is reporting the chaos that we currently live in.

        I’m all for Medicare (with or without Advantage, as more politically feasible because it works through insurers) for All. Adopt it tomorrow! The day after tomorrow, though, we’d be fighting for reimbursement rates, premiums, deductibles, etc. etc. It won’t end; but progress can be made, and lives can be saved.

  6. edr

    Under the patient’s plan, no services can be reimbursed until the patient meets his deductible, so that all of the care, including the costs which exceed the deductible remain unpaid.

    Prohibiting that might be a useful step. I guess the Insurance companies have much more lobbying power than the hospitals.

    Very informative article, thank you.

    1. Anon

      While a patient’s insurance may have a high deductible payment the EMTALA, I believe, requires medical insurance policy’s to cover emergency medical care (no matter whether by an in-network, or not) by a service provider (hospital or physician).

      1. Yves Smith Post author

        No, that isn’t correct. There are plenty of “narrow network” stories where if the ambulance takes you to the wrong emergency room, you will be billed for the full cost if you have a grandfathered plan. I happen to have a grandfathered plan but since it covers any medical provider (as in I have no such thing as “out of network”), I’m not disadvantaged in going to emergency rooms. And under the ACA, plans have ER co-pays, and if you are out of network, the gross amount will be higher, so the co-pay (set as a % of the bill) will be higher.

        See here for some details in CA, which I would suspect has more patient-friendly laws than in other states:

        http://centerforhealthreporting.org/article/help-help-out-network-emergency-woes

        And see this from the Palm Beach Post:

        Palm Beach County residents shopping for an Obamacare plan may think it’s a real steal. This plan costs $254 a month, without a government subsidy. And it is rated platinum, the highest caliber plan in the marketplace. The monthly premium comes in at $200 less each month than the most expensive platinum plan.

        What might be making this plan cheaper than the others? With some digging, savvy shoppers will find that only three Palm Beach County hospitals, Wellington Regional, Bethesda and Bethesda West, are in its network. County residents who buy the plan could get saddled with thousands of dollars of unexpected cost if they have an emergency and can’t get to one of those three.

        “If you’re in West Palm, there’s no way that ambulance is going to drive you to Wellington; that’s never going to happen,” said John Foley, a counselor from the Legal Aid Society of Palm Beach County trained to help residents choose Obamacare plans. “They’re going to take you to the closest hospital.”

        Limiting access to hospitals is one way insurance plans have historically controlled costs. There are signs, though, that this tactic is ramping up under the Affordable Care Act. Enrollment for 2014 ends in two weeks.

        Prior to the law, insurance companies could cherry pick clients – rejecting the sick – or shave benefits to cut costs. But under the health-care law, the federal government sets minimum coverage standards. They include costly services, such as maternity care, physical therapy and mental health treatments.

        Broad hospital and doctor networks have become the standard in employer-sponsored plans. For many insurers that sell on the individual market, which has tended toward flimsy coverage, the new standards have made providing health insurance a much more expensive proposition.

        The health care law says carriers must provide an adequate network of doctors and hospitals for plans sold through the new marketplace. The definition of adequate, though, seems open for interpretation.

        The McKinsey Center for U.S. Health System Reform studied silver tier plans – generally the second least expensive category — offered in the Obamacare marketplace and found the vast majority have narrow or ultra-narrow hospital networks. Among the plans it studied, 38 percent had a narrow network, meaning that between between 30 percent and 69 percent of the community’s largest hospitals are not in network. Another 32 percent of networks are ultra-narrow networks, in which at least 70 percent of the biggest hospitals are not participating in network.

        Overlooking the hospital network can be a costly mistake, said Karen Pollitz a senior fellow at the Kaiser Family Foundation, who works on the Program for the Study of Health Reform.

        “You always have to pay attention when a hospital is in network,” she said.

        Here’s why:

        The health-care law offers some protections for patients who are taken to an out-of-network hospital in an emergency. Insurance providers must cover emergency treatment at an out-of-network hospital as though the client were being treated in-network. There’s no such rule that applies to hospitals and doctors.

        Let’s say the contract between a hospital and insurance sets a particular emergency room treatment at $5,000. And under the insurance plan, the patient pays 20 percent. The treatment would cost the patient $1,000.

        But if the patient is taken to an out-of-network hospital for emergency care, there’s no rule preventing the hospital from charging $15,000 for that procedure. Hospitals routinely charge five times or more for a procedure than they negotiate with an insurer.

        After the patient pays $1,000 for the first $5,000 negotiated by the insurer, he’ll still owe another $10,000 for the balance of the treatment if he goes to an out-of-network hospital. The phenomenon is known as balanced billing.

        http://www.mypalmbeachpost.com/news/national-govt–politics/shopping-obamacare-beware-the-hospital-networks/ss1Ojr4o0CNZHyQ7nSW8CL/

  7. tegnost

    However, if EMTALA were to be eliminated, and hospitals and physicians responded by eschewing any responsibility for providing uncompensated care, politicians would arguably be faced with the prospect of dealing with a citizenry awash in illness, disease and suffering.
    unfortunately this prescription requires people to lose their lives on the prospect that maybe some politician who is larded up on big pharma payola will have a moral earthquake and somehow start caring about people other than the ones doing the larding.and that can overcome the uplifting feeling that all those indigents are deplorable anyway and so their dying actually reinforces this perspective. Too bad there’s not a less complicated alternative…oh wait…but instead of medicare for all we’re more likely to wind up with expanded medicaid and it’s clawback provisions so that the dollars can keep flowing to the important people.

  8. rps

    My comment on NPO hospital complexes disappeared unfortunately. In brief, perhaps McNoble could discuss in detail how NPO’s tax-exempt status is a moneymaker. The CBO estimated the value of federal, state, and local tax exemptions, tax-deductibility of charitable contributions, and tax-exempt bond financing, has nearly doubled from 12.6 billion in 2002 to $24.6 billion in 2011 for hospital complexes with NPO status- which the majority of hospitals are umbrellaed under. Also, the parsimonious percentage in operating expenses for uncompensated care was 4.7% for NPO’s, 13% for government operated and 4.4% for-profit hospitals.

    To paraphrase George Bailey, Now, hold on, Dr. McNoble, Just remember this, that this rabble of uninsured patients you’re talking about… they do most of the working and paying and living and dying in this community. Well, is it too much to have them treated with dignity by maintaining EMTALA instead of dismantling it in the interim praying for a healthcare apocalypse thereby instituting universal healthcare? I’d say this is every corporatized hospitals dream of hitting the lottery twice, once for the NPO tax-exempt status freebies without the responsibility of caring for the uninsured and/or high deductible patients without a federally or state mandatory percentage, and two for windfall profits without responsibility to the communities they meagerly serve.

    McNoble says, the elimination of EMTALA, which is one of the most unfair cost-shifting systems in health care, should also be eliminated. If it is unfair to require healthy patients to purchase insurance to fund the sicker patients, then surely it is unfair to require individual physicians and hospitals to bear the burden of care for the medically indigent.

    Yes, and lets unburden corporatized hospital complexes tethered to their ‘charitable platitudes’ – cough – NPO status as well.

    Healthcare hypocrisy indeed.

  9. psp

    If it is unfair to require healthy patients to purchase insurance to fund the sicker patients

    That’s precisely what insurance is. Duh.

    1. EoH

      Indeed. It’s a pay a little now to avoid paying a lot later plan. Pay for the levee, or pay for the flood damage. (Neoliberals game that, too, by overcharging for the levee, then turning flood damaged properties into high-rent profit centers, with as much paid for or subsidized by government as possible.)

      Insurance companies have done their best to game their own industry, not least by attempting to exclude “pre-existing conditions” and to put “high risk” patients into pools and shoveling them off to the government, leaving them the more profitable groups.

      Of course “for profit” companies will do that, irrespective of the harm they cause. Unless regulated. The primary institution in society that can and must work to different standards is cost-based government plan. That would return insurance providers to their traditional role of administrators, not decision-makers over our health care without licenses to practice medicine. Wall Street can then look elsewhere for its extractive rents. It’s not a solution without conflict, but then neither is government.

  10. Lambert Strether

    Word of the day: “Forme frust.” Usage example:

    EMTALA is, in fact, a “forme frust” of single payer healthcare for the indigent. That is EMTALA requires a broad and deep level of care be provided for all patients, but has no mechanism for private or public funding of that service.

    Definition:

    In medicine, a forme fruste (French, “crude, or unfinished, form”; pl., formes frustes) is an atypical or attenuated manifestation of a disease or syndrome, with the implications of incompleteness, partial presence or aborted state. The context is usually one of a well defined clinical or pathological entity, which the case at hand almost — but not quite — fits.

    I think a programmer would say “kludge.” Terrific post!

    1. psp

      That is EMTALA requires a broad and deep level of care be provided for all patients

      I don’t think this is the case. EMTALA actually requires providers to treat and stabilize, which would not be considered a “deep level of care.” The example to go along with this would be someone diagnosed with cancer but is stable. EMTALA would not require to treat them until it becomes an emergency situation.

      http://www.dukechronicle.com/article/2017/02/the-myth-of-emtala

      1. Lambert Strether

        > EMTALA would not require to treat them until it becomes an emergency situation.

        Which to me is the crazy thing. If I read the post correctly, we’ve managed to incentivize patients to wait for care until the points of maximum danger and expense.

  11. EoH

    It would be hard to argue that a “fair” distribution of health care costs is a legitimate part of the current “reform” debate going on in Congress. Platitudes aside, the debate is about cost-shifting to individuals, saving upper tier tax payers from the angst associated with their quarterly tax bills.

    The commonly agreed meme is that individuals should have more skin in the game, as if their lives were not already at risk.

    The claim is flawed. Individuals have no capacity to evaluate their sickness; limited ability to choose among care providers (and have even less information); and no ability to evaluate competing drugs, the order in which they should be tried or their cost. They have no ability to affect for-profit health insurer offerings or their prices.

    No amount of skin in the game could make up for those debilities, as Congress knows. The claim must be a cover to avoid discussing other reasons. One appears to be Congress’ determination to withdraw health care from the many in order to protect a few. Those few would include for-profit insurers and care providers and the wealthy who would keep the tax dollars demanded by a more humane health care system, such as those common elsewhere in the developed world.

    One issue I wish Dr. McNoble had covered is payments collection practices. The story does not end when a hospital provides care to the under- and uninsured. Hospital systems collection practices are severe. What remains uncollected is purchased by vulture funds whose practices are less restrained. The resulting bankruptcies – even as limited by the archly pro-creditor reforms of 2005 – cause economic and social havoc.

  12. Parker Dooley

    This is a superb discussion of EMTALA and its problems. One issue not discussed was the closure of many emergency departments. I have always felt that this was a tactic by hospital corporations to avoid responsibility under this law. The resulting was transfer of costs and case load to the remaining facilities. Emergency departments are hugely expensive and are always money losers. This article from NIH discusses the causes of ER closures.

    Rural hospitals will be seriously, perhaps fatally affected by loss of Medicaid revenue if the current proposals take affect. Many of these facilities are already marginal, both financially and because of the difficulty of recruiting physicians who are willing to accept relatively low incomes and professional isolation compared to their colleagues in more affluent urban or suburban areas.

    When a rural hospital or clinic closes, it can be a catastrophe for the residents — wealthy as well as indigent. For example, closure of our local facility would necessitate a trip of 65 or 75 miles to reach either of the two nearest hospitals, one of which is across the state line and does not accept Virginia Medicaid and the other is across a $15.00 toll bridge which may be closed during bad weather. We are relatively fortunate — many other rural and, particularly “frontier” areas are in a far worse situation. Rich or poor, it is a life or death matter if you live in one of these areas.

    While EMTALA provides a convenient excuse for politicians’ inaction (“They can always get care in the ER…”) it is not the root cause of the problem. As Lambert would say, the system suffers from a neoliberal infestation, or perhaps it is a “social disease”, one for which we have no antibiotic as yet. Physicians for a National Health Program has a single payer FAQ which answers many objections to this solution. The money quote from the top of the page:

    “We have 900 billing clerks at Duke (medical system, 900 bed hospital). I’m not sure we have a nurse per (each) bed… it’s obscene.
    -Uwe Reinhardt, Hearing on Health Care Reform, U.S. Senate Finance Committee, November 19, 2008

    And it is only becoming worse. When I started my practice as a primary care internist in a rural community health center, filing an insurance claim involved reporting one of about 100 diagnostic categories. When the ICD-9 (International Statistical Classification of Diseases and Related Health Problems) was adopted, the number expanded to 10,000 and now with ICD-10, to 100,000. And each ICD code has to be matched with a CPT (Current Procedural Terminology) code to identify what was done. Plenty of scope for insurance denials! (We used to be physicians, then “providers” and now CPT’s (Client Processor Technologists)).

    Sorry for the lengthy rant. We need a root and branch reorganization of the system. Plenty of good models exist — just choose one!

  13. Dorothy J. McNoble, MD, JD

    Goodness! I am humbled by all the incredible responses to my essay. I have not fully digested all the comments, but would like to make a couple of points.
    First, I was one of those three surgeons in my county who accepted Medicaid and always had a commitment to the care of the poor and the uninsured. It was a challenge as I was in solo private practice, but I made it work.
    Second, the original title of the article was “EMTALA: An Inefficient but Indispensable Health Care Safety Net. I provided challenging examples of the application of the EMTALA law, but recognize that, for all the reasons discussed in the comments, it is…well, indispensable.
    I will read carefully all the comments and perhaps write more.
    I am honored that Yves Smith and Lambert Strether published my essay and if anyone wants to communicate with me directly, my blog is on Medium.com and the associated email is badmedicine005@gmail.com.
    (For the record, I have worked for single payer healthcare since the Prop 186 California ballot initiative in 1994)

    1. Katniss Everdeen

      Knowing what you know, Doctor, don’t you think that exposing the lie that offloading more and more americans into the rusty Medicaid bucket will solve the nation’s healthcare crisis would be more productive than criticizing EMTALA?

      The other day chuck schumer proposed letting more people “buy into” Medicaid. Can you imagine? Someone should really set that arrogant a**hole straight. Why not you?

      1. Yves Smith Post author

        Gratuitous nastiness towards guest writers is against site Policies. You straw-manned her above and I didn’t have time to go after you, and now this.

        She is telling you what you don’t want to hear, and you keep sticking fingers in your ears and going “Nyah Nyah Nyah.” The article is a long form description of how the EMTALA is a really shoddy medical safety net, how it often produces bad care, and how by operating as an unfunded social service mandate, hospitals have big incentive to game it and do. Medicaid is a separate issue, like it or not.

        You effectively gave her an assignment, which is also against our written site Policies.

      2. Lambert Strether

        It’s not a requirement that everybody turn to the same page in the hymnal at the same time and then sing in unison. NC posters and commenters do not need a chorusmaster (or mistress), self-appointed or not.

        I was very pleased to be educated on EMTALA, because it’s a facet of our enormous health care [cough] system I knew nothing about, and the patient stories are heartbreaking. I’m also pleased to have a subject matter expert in the actual delivery of healthcare at the front lines volunteer to post at NC.

  14. Bobby Gladd

    Interesting article.

    My late elder daughter was an EMTALA case in 1996 (uninsured at the time), dx’d and stabilized at Cedars, then doped and dumped in the middle of the night to LA County Hospital (USC Med Ctr, now closed). The heroic staff at LAC saved her life, giving us 26 months rather than the days-to-weeks she was otherwise facing as a Stage IVb hepatoma.

    I’m spending too much time this week following this maudlin “repeal” charade. I call it “Obamacare Repeal whiplash week.”

  15. Dave in Austin

    At least in Austin, TX one of the responses to the EMTALA rules was that a number of new satellite hospitals were built just outside the range (about 13 miles I think) that the patient transfer rules allowed. So the overloaded hospitals in downtown (with the majority of the poor and immigrant population) could not transfer patients.

    Oddly enough, I don’t blame the people making the hospital location decisions. People respond to incentives. Busing led to white flight; poor immigrants gave employers a way to depressed blue-collar wages; government college loan programs with no bankruptcy escape led to the creation of on-line and often useless degree programs.

Comments are closed.