A Quixotic Enterprise? Trying
to fix EMTALA
Rory Jaffe, MD MBA
Executive Director — Medical Services
University of California
Quixotic
• Quixotic: “Caught up in the romance of
noble deeds and the pursuit of
unreachable goals; idealistic without
regard to practicality.”
• Enterprise: “An undertaking, especially
one of some scope, complication, and
risk.”
Triple disclaimer
• Everything presented today represents
neither:
– The position of the University of California,
– The position of the EMTALA—TAG, nor
– Even necessarily my own opinions
Topics
• What is EMTALA?
• The EMTALA Technical Advisory Group:
composition, mandate, and work plan
• A few modest proposals for fixing this
mess
• Unintended consequences and other
hurdles to reform
• Audience participation is strongly
encouraged
What is EMTALA supposed to
be?
• Non-discrimination
– Definitely
• Increased access to care
– Sort of
– People responding to non-discrimination
attempt by reducing their availability in a
discriminating manner (avoiding less-lucrative
types of patients)
• Selective decredentialing
• Avoiding ED call
• Avoiding hospitals with EDs
And now, a quiz
Question 1
• Medicare requires that that a hospital
without an ED must maintain a physician
on-call roster.
– True
– False
Question 2
• EMTALA requires that a hospital with
specialized capabilities or facilities but
without an ED must accept appropriate
EMTALA transfers.
– True
– False
Question 3
• If a hospital has stabilized a patient’s
emergency medical condition in the ED
but is unable to provide definitive
treatment, EMTALA applies to the transfer.
– True
– False
EMTALA TAG representation
public 1
hospitals
patients
2
private hospitals
3
6
regulators
practicing physicians
7
Mandate
• Review EMTALA regulations
• Solicit comments and recommendations from
hospitals, physicians, and the public regarding
implementation
• May provide advice and recommendations to the
Secretary concerning these regulations and their
application
• May disseminate information concerning the
application of these regulations to hospitals,
physicians, and the public
Work plan
• Subcommittees: on-call, framework, action
• On-call: physician on-call issues
• Framework: issues affecting EMTALA but
beyond scope of the TAG
– Liability
– Reimbursement
– Capacity (workforce and beds)
– Health care disparities
• Action: everything else
A modest proposal
• Fund it!
Degrees of difficulty
•
•
•
•
Easy: guidance
Middling: Interpretive guidelines
Harder: regulation
Very hard: law
Basic need
• Data
Approved proposals
• Hospitals with specialized capabilities
should have an obligation to accept
appropriate EMTALA transfers even if they
do not have an Emergency Department
– This does not contradict regulation or
interpretive guidelines
• Note that hospitals without an ED already
have a responsibility to have an on-call
roster—that is part of the provider
agreement, not EMTALA
More approved proposals
• Remove “A woman experiencing
contractions is in true labor unless a
physician certifies that, after a reasonable
time of observation, the woman is in false
labor.”
• Move all references to a hospital’s
responsibility to maintain a call panel to
the provider agreement (42CFR489.20).
Rejected proposals
• Specialty hospitals (all hospitals?) must
have emergency departments
• All physicians must take call as a condition
of participation in Medicare
Ideas
• Board certified physicians should have a
minimum set of competencies
– attack selective decredentialing
• Define “specialized capabilities”
• Better define on-call rules
• Better define acceptable physician
response time
Ideas
• Distance test
• Repatriation
• Ensure that EMTALA is not a “quality of
care” law
Ideas
• Audience contribution
Hospitals with specialized
capabilities
• What are “specialized capabilities?”
• Should there be geographic criteria for
appropriate transfers?
• Should the receiving hospital have any say
in the decision to transfer?
• Should there be a repatriation requirement
if the patient is found not to need
specialized care?
Hospitals with specialized
capabilities
• “Specialty hospital” was defined for Stark.
Should it have a role in EMTALA?
• For diagnostic needs (e.g., “open MRI”),
should the transfer be a temporary one?
• What does it mean to have an on-call list if
you don’t have an ED?
Unintended consequences
• Require specialists on call to see any
patient
– Stop taking call
– Reduction in access to specialty care
• Require call as a condition of staff
privileges
– Become courtesy member or leave
– Establish freestanding treatment centers
• Make call requirements more flexible
– Avoid call
Unintended consequences
• Survey and cite hospitals — make them
the enforcers of physician behavior
– Hospitals and medical staff become enemies
Why?
• Law and financial incentives are
diametrically opposed.
• Unintended consequences are
unavoidable.
– Without funding, there is no great solution,
only somewhat workable compromises
Contact information
• [email protected]
• 510-987-9406
• Rory Jaffe, MD MBA
Executive Director — Medical Services
University of California Office of the
President
1111 Franklin St Rm 11333
Oakland, CA 94607-5201