After 30 years as a fixture in the federal healthcare regulatory landscape, the Emergency Medical Treatment and Labor Act—more commonly known as EMTALA—has been in the news again. In the past year, the U.S. Department of Health and Human Services Office of Inspector General (OIG) has more than doubled penalties for hospitals and physicians that violate EMTALA, and in June, the agency reached a $1.3 million settlement with a South Carolina hospital for allegedly failing to stabilize or transfer behavioral health patients presenting in its emergency department (ED). The settlement is the largest in EMTALA history, and provides a crucial reminder that hospitals continue to face significant challenges in complying with the act.
Enacted in 1986 to ensure the public’s access to emergency services regardless of ability to pay, EMTALA requires all hospitals enrolled in Medicare to conduct a medical screening evaluation on any patient who presents to their ED. If the hospital determines the patient has an emergency medical condition, it must either stabilize the patient within its “capabilities and capacity” or transfer the patient to an appropriate facility. If a hospital or responsible physician violates EMTALA, it can lead to civil monetary penalties, expulsion from the Medicare program by the Centers for Medicare and Medicaid Services (CMS), or both.
While EMTALA’s requirements may appear straightforward, fulfilling them can be a challenge. Large, sophisticated hospitals may have to expend considerable effort to exhaust their capabilities and capacity, while hospitals with limited resources or in rural locations may have difficulty accessing the providers and equipment they need to evaluate and stabilize a patient. A hospital’s responsibility to stabilize a patient “within its capabilities” includes not only the care that can be provided by personnel on site, but also by professionals available through the hospital’s on-call roster. A hospital’s “capacity” includes not only the space and services available in the usual course of business, but any measures a hospital customarily takes to accommodate patients in excess of its occupancy limits. For example, if a hospital would typically call in additional staff or move patients from one unit to another to create more space, then such measures are considered part of the hospital’s “capacity” for EMTALA purposes.
Finding a qualified destination facility for an appropriate transfer can be equally difficult. If a hospital cannot provide the necessary stabilizing medical treatment to a patient itself, then it must transfer the patient to a hospital that has both the capability and the capacity to do so, even if there is no such hospital nearby. This can be particularly difficult in cases where the emergency medical condition triggering EMTALA’s requirements is vague or difficult to interpret, such as a complaint of extreme pain, and in situations requiring specialized treatment, such as behavioral health emergencies.
Navigating the universe of EMTALA requirements has long been one of many obligations hospitals take on when they enroll as a Medicare provider. However, liability under EMTALA is now more consequential than ever. Under the statute, Medicare-participating hospitals and physicians may be liable for civil monetary penalties (CMPs) of up to $50,000 (or $25,000 for hospitals with fewer than 100 beds) for each violation. This amount had not been adjusted for inflation since the law was enacted in 1986. However, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, federal agencies such as the OIG were required to make substantial adjustments to their CMPs. As a result, this past December, the OIG issued a rule that more than doubled the real dollar amount of EMTALA CMPs. At present, hospitals with 100 beds or more face a fine of up to $104,826 per violation, and hospitals with fewer than 100 beds can be fined up to $52,414 per violation. These penalties will be increased annually based on updates to the consumer price index.
In the past, hospitals and physicians have worried less about CMPs under EMTALA than the possibility that CMS might terminate their participation in the Medicare program for violating the statute. However, a recent case provides a stark reminder that the OIG’s pursuit of EMTALA-based claims can lead to severe monetary penalties. In June 2017, the agency reached its largest settlement ever for $1.3 million with Anderson, South Carolina-based AnMed Health over allegations that the hospital had failed to properly handle behavioral health patients presenting at its ED. By comparison, since 2016, the OIG has published notice of 12 other settlements involving EMTALA violations, the largest of which was for $360,000. The remaining 11 cases settled for between $10,000 and $50,000.
According to the settlement agreement in the AnMed case, the OIG had identified 36 incidents over a two-year period in which the hospital allegedly held behavioral health patients in its ED without having an on-call psychiatrist evaluate them or admitting them to the facility’s inpatient behavioral health unit. In each instance, the patient was involuntarily brought to the hospital’s ED, often by law enforcement. While AnMed had an inpatient behavioral health unit, the unit had a policy of only admitting patients that are voluntarily committed. Instead of admitting the patients, the hospital allegedly held them for extended periods of time in the ED while it tried to stabilize them or have them transferred. In some cases, patients were at the hospital for weeks; one patient was allegedly held for 38 days.
The AnMed settlement highlights several challenges facing hospitals and their EDs. While hospitals have always been required to conduct a medical evaluation on patients presenting to their ED, the settlement agreement notes that in many cases, “AnMed had on-call psychiatrists … to further evaluate and/or stabilize the patient’s emergency medical condition,” implying that the OIG expects such patients to be evaluated not just by an ED physician, but an on-call psychiatrist, before the facility’s EMTALA obligations are met. This standard may be a scheduling headache for larger hospitals with access to such physicians, but it presents a more formidable challenge to small and rural hospitals without regular access to psychiatrists.
Similarly, the settlement agreement acknowledges AnMed’s “longstanding policy of not admitting involuntary patients to its psychiatric unit[,]” but also notes that the hospital had open beds in the unit and failed to admit the patients for stabilizing treatment. Media coverage regarding the settlement reveals that AnMed took several measures beginning in 2015 to expand and adapt its behavioral health unit to be able to accept involuntary commitments—a measure one OIG attorney cited as “one of the reasons why the penalty was not even higher” in the case. This turn of events leaves hospitals with significant uncertainty about whether or how to update their behavioral health admissions policies.
The OIG’s apparent emphasis on what AnMed could have done—regardless of its existing policies—is particularly notable in light of how frequently behavioral health emergencies and resulting extended ED stays occur. The issue of “patient boarding”—keeping psychiatric patients in the ED while providers try to find a more suitable facility—is well documented. A survey conducted by the American College of Emergency Physicians published in 2008 found that 79 percent of hospitals boarded psychiatric patients in their ED; 33 percent of psychiatric patients were boarded for over eight hours. While the number of patients in need of psychiatric care has increased, a study published in Health Affairs last fall found that the availability of such beds has steadily decreased, from roughly 500,000 beds in the 1970s to under 140,000 in 2010.
In light of these developments, hospital administrators and compliance officers may want to take the opportunity to review their EMTALA procedures, particularly with regard to the policies and resources in place for evaluation and treatment of behavioral health patients who present at the ED. Hospitals may also want to communicate with their medical staff regarding the expectations surrounding evaluation and treatment of ED patients, as EMTALA oversight extends beyond hospital policy and action to the decisions made by physicians themselves. Despite the many challenges, hospitals must stay in tune with the needs of patients arriving at their doors.