The Office of Inspector General (OIG) can impose civil, monetary penalties upon hospitals and physicians for EMTALA violations, or terminate physicians from Medicare. Congress recently more than doubled the amount of potential fines to almost $105,000 per violation and set the amount to increase annually by an inflation factor. Be somewhat grateful; Congress originally wanted physicians to pay $250,000 and spend five years in prison for violating the law.
More than anything, EMTALA has changed the culture and the acceptable practice model in our nation’s emergency departments. It fortified emergency physicians to remain steadfast in providing emergency care to all regardless of the external forces of the day—anyone, anywhere, any time.
Emergency physicians have also learned how to use the law to advocate for our patients. It was our specialty that, under the force of EMTALA, dismantled the detrimental preauthorization requirements, economic coercion, triage out practices, and other limits on access to emergency care imposed by insurers, managed care companies, and state Medicaid programs in the 1990s and 2000s.
More immediately, EMTALA has also improved the behavior of emergency physicians transferring patients, and those physicians accepting transfers on behalf of higher-level hospitals. Invoking EMTALA to demand appropriate responses from on-call physicians is another everyday example of the law’s usefulness in advocating for patients.
In enacting EMTALA, Congress used the Medicare Act to define, for the first time, a standard of care for emergency services. A boon for patients, yet it was a standard of care established by law, not by medicine—no less than 15 common emergency medical terms are now legally defined by EMTALA and its regulations. Many of the government’s definitions mean something substantially different than what is generally understood by emergency physicians.
There is some frustration about the enforcement of EMTALA as it can be inconsistent across the country (CMS allows each of its 10 regional offices to function autonomously),which can unnecessarily drain hospital and physician time, money, energy, and damage a hospital’s reputation. There is often little due process—hospitals must come into compliance as dictated by CMS or risk being terminated from Medicare. But there has been some improvement to this. For example, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 did require CMS to obtain a medical review by a physician from a Medicare Quality Improvement Organization before it could cite or terminate a hospital for violating the law.
The Office of Inspector General recently modified the factors it considers in determining the amount of penalty when it has found an EMTALA violation, adding more aggravating circumstances such as patient harm or even risk of harm resulting from that violation. Moreover, the presence of any single aggravating factor is now sufficient to justify imposing the maximum penalty. Worst of all, the OIG can attempt to impose the penalties for ordinary medical negligence, such as if an emergency physician’s medical screening exam fails to diagnose a patient’s emergency condition.