Emergency Care: EMTALA Implementation and Enforcement Issues	 
(22-JUN-01, GAO-01-747).					 
								 
The Emergency Medical Treatment and Active Labor Act (EMTALA) was
enacted in 1986 primarily in response to concern that some	 
emergency departments across the country had refused to treat	 
indigent and uninsured patients or inappropriately transferred	 
them to other hospitals, a practice known as "patient dumping."  
EMTALA requires hospitals that participate in Medicare to provide
a medical screening examination to any person who comes to the	 
emergency department, regardless of the individual's ability to  
pay. If a hospital determines that the person has an emergency	 
medical condition, it must provide treatment to stabilize the	 
condition or provide for an appropriate transfer to another	 
facility. The regional offices of the Department of Health and	 
Human Services (HHS) Centers for Medicare and Medicaid Services  
(CMS) are responsible for investigating complaints of alleged	 
EMTALA violations and forwarding confirmed violations to HHS'	 
Office of Inspector General (OIG) for possible imposition of	 
civil monetary fines. The medical community has raised concerns  
that the implementation and enforcement of EMTALA have created	 
burdens, such as overcrowded emergency departments, for hospitals
and physicians. This report reviews (1) how EMTALA has affected  
hospital emergency departments and delivery of emergency care and
(2) how CMS and OIG have enforced EMTALA. GAO found that hospital
and physician representatives noted that EMTALA has been	 
beneficial in ensuring access to emergency services and reducing 
the incidence of patient dumping. However, the overall impact of 
EMTALA is difficult to measure because there are no data on the  
incidence of patient dumping before the law's enactment. Many	 
hospital officials and physicians stated that the implementation 
of EMTALA adversely affects the efficiency and type of services  
provided in hospital emergency departments and results in	 
additional costs to hospitals and physicians. Furthermore, some  
hospitals and physicians, however, expressed uncertainty about	 
the extent of their responsibilities under EMTALA. Regarding	 
enforcement, CMS has the authority to terminate the Medicare	 
provider agreement of a hospital that has violated EMTALA and	 
also forwards confirmed violations to the OIG for possible	 
imposition for civil monetary fines. Since the law's enactment,  
the numbers of EMTALA violations and fines have been relatively  
small, and the hospitals' Medicare provider agreements have	 
rarely been terminated. 					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-01-747 					        
    ACCNO:   A01241						        
  TITLE:     Emergency Care: EMTALA Implementation and Enforcement    
             Issues                                                           
     DATE:   06/22/2001 
  SUBJECT:   Medical examinations				 
	     Emergency medical services 			 
	     Disadvantaged persons				 
	     Hospitals						 
	     Health insurance					 
	     Fines (penalties)					 
	     Medicare Program					 

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GAO-01-747
     
Report to Congressional Committees

United States General Accounting Office

GAO

June 2001 EMERGENCY CARE EMTALA Implementation and Enforcement Issues

GAO- 01- 747

Page i GAO- 01- 747 EMTALA Letter 1

Results in Brief 2 Background 4 Hospitals and Physicians Have Concerns About
Effects and Extent

of EMTALA Responsibilities 10 Numbers of EMTALA Violations and Fines
Relatively Small, and

Hospitals Are Rarely Terminated 17 Concluding Observations 25 Agency
Comments 25

Appendix I Scope and Methodology 28

Appendix II Confirmed EMTALA Violations 30

Appendix III Comments From the Department of Health and Human Services 32

Appendix IV GAO Contact and Staff Acknowledgments 34

Tables

Table 1: Provider Uncertainties About EMTALA Requirements 16 Table 2:
Examples of 1999 Confirmed EMTALA Violations 30

Figures

Figure 1: EMTALA Enforcement Process 7 Figure 2: Total EMTALA Investigations
and Confirmed Violations,

Fiscal Years 1995 - 1999 18 Contents

Page ii GAO- 01- 747 EMTALA

Abbreviations CMS Centers for Medicare and Medicaid Services EMTALA
Emergency Medical Treatment and Active Labor Act HHS Department of Health
and Human Services OIG Office of Inspector General PRO peer review
organization

Page 1 GAO- 01- 747 EMTALA

June 22, 2001 Congressional Committees In 1986, the Emergency Medical
Treatment and Active Labor Act (EMTALA) was enacted as part of the
Consolidated Omnibus Budget Reconciliation Act of 1985 1 primarily in
response to concern that some emergency departments across the country had
refused to treat indigent and uninsured patients or inappropriately
transferred them to other hospitals, a practice known as ?patient dumping.?
EMTALA requires hospitals that participate in Medicare to provide a medical
screening examination to any person who comes to the emergency department,
regardless of the individual?s ability to pay. If a hospital determines that
the person has an emergency medical condition, it must provide treatment to
stabilize the condition or provide for an appropriate transfer to another
facility. The regional offices of the Department of Health and Human
Services? (HHS) Centers for Medicare and Medicaid Services (CMS) 2 are
responsible for investigating complaints of alleged EMTALA violations and
forwarding confirmed violations to HHS? Office of Inspector General (OIG)
for possible imposition of civil monetary fines. The medical community has
raised concerns that the implementation and enforcement of EMTALA have
created burdens, such as overcrowded emergency departments, for hospitals
and physicians. The Consolidated Appropriations Act, 2001 mandated that we
examine the effect of EMTALA on hospitals and physicians serving emergency
departments. 3 We addressed the following key questions in our review: 1)
how has EMTALA affected hospital emergency departments and delivery of
emergency care and 2) how have CMS and the OIG enforced EMTALA?

To answer these questions, we interviewed and obtained documents, such as
EMTALA investigation logs, from officials at CMS? central office and the
OIG. We also visited CMS? Atlanta and San Francisco regional offices, where
we interviewed officials on the enforcement process and reviewed

1 P. L. 99- 272. The Omnibus Budget Reconciliation Act of 1989 deleted the
word ?active? from the title of EMTALA. Sec. 6211( h)( 2)( C) of P. L. 101-
239. 2 On June 14, 2001, the Secretary of HHS changed the name of the Health
Care Financing Administration to the Centers for Medicare and Medicaid
Services. In this report, we refer to the agency as CMS.

3 P. L. 106- 554. A future study will examine providers? uncompensated care
burden.

United States General Accounting Office Washington, DC 20548

Page 2 GAO- 01- 747 EMTALA

a random sample of 1999 EMTALA investigation files to ascertain the types of
complaints investigated and the nature of confirmed violations. We selected
the San Francisco regional office for a site visit because from fiscal year
1994 through 1998, it had the highest proportion of confirmed violations to
investigations and the second highest number of confirmed violations among
CMS? regional offices. We selected the Atlanta regional office because
during this same time period it had the highest number of EMTALA
investigations and confirmed violations; it also receives a high number of
complaints. In addition, we obtained information from state agencies and
physician peer review organizations (PRO) in Arizona, California, and
Georgia on their roles in the EMTALA investigative process. Finally, we
interviewed hospital officials, physicians, and attorneys representing
several national and state hospital and physician organizations. (For
additional information on our methodology, see app. I.) We conducted our
work from January through May 2001 in accordance with generally accepted
government auditing standards.

Hospital and physician representatives told us that EMTALA has been
beneficial in ensuring access to emergency services and reducing the
incidence of patient dumping. The overall impact of EMTALA is difficult to
measure, however, because there are no data on the incidence of patient
dumping before its enactment, and the only measure of current incidence- the
number of confirmed violations- is imprecise. Many hospital officials and
physicians with whom we spoke said that the implementation of EMTALA
adversely affects the efficiency and type of services provided in hospital
emergency departments and results in additional costs to hospitals and
physicians. For example, they told us that EMTALA has resulted in more
people coming to the emergency department for nonurgent services, leading to
overcrowding and delays. However, other factors, such as the growth of the
uninsured population and the difficulty some managed care patients may have
in obtaining timely appointments with their personal physicians, can also
explain the increase in emergency department visits, and it is difficult to
assess the relative importance of individual factors. Similarly, while some
hospital officials and physicians told us that fewer physicians are joining
hospital staffs and participating in emergency department on- call panels
because EMTALA leads to on- call physicians providing uncompensated care,
other factors, such as the ability to perform procedures in nonhospital
settings, have also reduced incentives for certain specialists to serve on
hospital staffs. Results in Brief

Page 3 GAO- 01- 747 EMTALA

Some hospitals and physicians expressed uncertainty about the extent of
their responsibilities under EMTALA. For example, they have questions about
how a medical screening exam differs from initial triage or a general exam,
how EMTALA applies to certain on- campus and off- campus hospital
departments, and the extent to which they are obligated under EMTALA to
provide follow- up care to emergency department patients. Violations of
EMTALA continue to occur, underscoring the need for effective education and
enforcement. CMS officials told us that they are aware of the difficulty
providers have encountered in implementing some aspects of EMTALA and that
it plans to provide more guidance and reestablish an advisory group of
EMTALA stakeholders. Efforts by CMS to communicate clear, practical, and
timely regulations and guidance to the medical community could make it
easier for providers to ensure that they are in compliance with EMTALA, and
reestablishing a stakeholder advisory group could help CMS work with
hospitals and physicians to achieve the goals of EMTALA and avoid creating
unnecessary burdens for providers.

CMS is responsible for investigating complaints of alleged EMTALA violations
and has authority to terminate the Medicare provider agreement of a hospital
that has violated EMTALA. CMS forwards confirmed violations to the OIG for
possible imposition of civil monetary fines. The numbers of EMTALA
violations and fines have been relatively small, and hospitals? Medicare
provider agreements have rarely been terminated. On average, since 1995, CMS
regional offices have directed state survey agencies to investigate about
400 hospitals per year and have cited about half of them for EMTALA
violations. The numbers of investigations and proportion of confirmed
violations vary among regions. CMS is taking steps to increase consistency
among regions, which could assist providers in their efforts to comply with
EMTALA. In reviewing confirmed violations in two regions, we found that in
our sample all hospitals with confirmed violations were cited for violations
involving patient care, such as failing to provide an appropriate medical
screening exam, failing to provide stabilizing treatment, or inappropriately
transferring a patient. Most of these hospitals also were cited for
administrative deficiencies, such as failure to maintain a log on each
person coming to the hospital seeking emergency services. If CMS determines
that a violation has occurred, it immediately initiates the process to
terminate the hospital?s Medicare provider agreement within either 23 days
or 90 days, the only actions its statutory authority permits. However, most
cited hospitals develop corrective action plans to resolve deficiencies;
since EMTALA was enacted only four hospitals have had their provider
agreements terminated for EMTALA violations and two of those were
recertified. Hospital officials said they would like CMS to have authority
to impose intermediate

Page 4 GAO- 01- 747 EMTALA

sanctions in some cases, and CMS officials also said they would like greater
enforcement flexibility.

In determining whether enforcement action beyond CMS? is appropriate, the
OIG has more discretion and flexibility. It considers a number of factors,
including the nature and circumstances of the violation and the effect of a
fine on a hospital?s ability to provide care, when deciding whether to
pursue civil monetary penalties and setting the amounts of fines. From 1995
through 2000, the OIG imposed fines totaling over $5.6 million on 194
hospitals and 19 physicians. The majority of hospital fines were $25, 000 or
less. The total number of physicians ever fined by the OIG for EMTALA
violations is 28. HHS commented on a draft of this report and generally
agreed with its findings.

The Congress enacted EMTALA as part of the Consolidated Omnibus Budget
Reconciliation Act of 1985. EMTALA contains three primary requirements for
Medicare- participating hospitals. First, a hospital is required to provide
a medical screening exam to any person who comes to the emergency department
and requests examination or treatment for a medical condition. Second, if a
hospital determines that the individual has an emergency medical condition,
the hospital must provide further medical examination and treatment to
stabilize the medical condition. 4 Third, if the hospital is unable to
stabilize the patient, the hospital must provide for an appropriate transfer
to another medical facility. 5 The statute prohibits hospitals from delaying
a medical screening exam and stabilizing treatment in order to inquire about
the person?s method of payment or insurance status. 6 EMTALA also requires a
hospital to accept a patient

4 An emergency medical condition is defined as a medical condition
manifesting itself by acute symptoms of sufficient severity such that the
absence of immediate medical attention could reasonably be expected to
result in placing the health of the individual in serious jeopardy, serious
impairment to bodily functions, or serious dysfunction of any bodily organ
or part. (42 U. S. C. Sec. 1395dd( e)( 1)).

5 A transfer is appropriate if, among other things, the transferring
physician has signed a certification that the medical benefits of the
transfer outweigh the risks, the transferring hospital forwards the
patient?s medical records to the receiving hospital, and the receiving
hospital has available space and qualified personnel for the treatment of
the individual and has agreed to accept transfer of the patient and to
provide appropriate medical treatment.

6 In addition, the statute allows individuals suffering personal harm and
medical facilities suffering financial loss as a direct result of a
hospital?s EMTALA violation to bring a civil action against the offending
hospital and obtain personal injury damages; all civil actions must commence
within 2 years of the date of the violation. (42 U. S. C. Sec. 1395dd( d)(
2)). Background

Page 5 GAO- 01- 747 EMTALA

from a transferring hospital if it can provide the specialized care the
patient needs and to report any inappropriate transfers.

Other EMTALA- related statutory requirements for hospitals that participate
in Medicare include posting a sign in the emergency department specifying
individuals? rights under EMTALA, maintaining medical and other records of
patients transferred to or from the hospital, and maintaining a list of
physicians who are on call and available to provide treatment needed to
stabilize individuals with emergency medical conditions. 7 These obligations
are included in the agreements that hospitals sign in order to participate
in Medicare. Failure to fulfill these obligations is considered a breach of
the provider agreement and grounds for termination from the Medicare
program. In 1994, CMS issued regulations for EMTALA and the other related
statutory requirements. 8

In May 1998, CMS issued Interpretive Guidelines that provide instructions
and policy interpretations on several issues, including what is a medical
screening exam, what it means to stabilize a patient, and the requirement to
maintain a list of on- call physicians. In November 1999, CMS and the OIG
jointly issued a Special Advisory Bulletin that focused on the application
of EMTALA provisions for individuals insured by managed care plans and
provided some ?best practices? to help hospitals comply with EMTALA in a
managed care environment. The bulletin states that it is not appropriate for
a hospital to seek, or direct a patient to seek, authorization to provide
screening or stabilizing services from the individual?s health plan or
insurance company until after the hospital has provided a medical screening
exam and initiated stabilizing treatment for an emergency medical condition.
It also advises against informing patients that they would be responsible
for paying for their care if their insurer does not provide payment, or
otherwise attempting to obtain patients? agreement to pay for services,
before they are stabilized. The bulletin said a hospital may follow a
reasonable registration process, including asking for insurance information,
as long as it does not delay screening and treatment and does not discourage
patients from obtaining care. According to the 1999 Special Advisory
Bulletin, a hospital could violate EMTALA if it routinely keeps patients
waiting so long that they leave without being seen, particularly if the
hospital does not attempt to

7 42 U. S. C. Sec. 1395cc. 8 42 CFR Sec. 489.20 and Sec. 489.24.

Page 6 GAO- 01- 747 EMTALA

determine and document why individual patients are leaving and tell them
that the hospital is prepared to provide a medical screening if they stay.

In April 2000, CMS issued additional regulations that apply EMTALA
screening, treatment, and stabilization requirements to off- campus
hospital- based departments. 9 These include entities that classify
themselves as hospital outpatient departments and are paid Medicare?s
hospital outpatient rates. They may be a facility, organization, or
physician office that is either established or acquired by a hospital.
Hospital offcampus departments are required to establish protocols for
handling potential emergency conditions. The regulations also define a
hospital campus to include an area within 250 yards of the main buildings.
In August 2000, CMS issued an interim final rule to clarify the requirements
for off- campus departments in emergency situations.

The EMTALA enforcement process involves multiple agencies and organizations.
(See fig. 1.) CMS and the OIG are jointly responsible for enforcing EMTALA.
CMS initiates EMTALA investigations in response to complaints of alleged
violations. 10 Complaints are received by CMS regional offices and state
survey agencies and can be generated by several sources, including a
patient, another hospital, or a report from the hospital itself. In
addition, a state surveyor may identify a potential EMTALA violation while
performing a hospital licensing or recertification survey. The CMS regional
offices screen complaints and potential EMTALA violations identified by
state surveyors to determine whether to authorize an investigation.

9 Medicare Program Prospective Payment System for Hospital Outpatient
Services Final Rule, 42 CFR Sec. 489.24. 10 Hospitals can be found in
violation of EMTALA and/ or their Medicare Provider Agreement if they fail
to (1) comply with hospital policies and procedures that address the EMTALA
provisions, (2) report suspected inappropriate transfers (this applies to
receiving hospitals), (3) post required signs, (4) maintain transfer records
for 5 years, (5) maintain a list of on- call physicians, (6) maintain a
central log on each individual that comes to the hospital seeking emergency
services, (7) provide appropriate medical screening, (8) provide stabilizing
treatment, (9) provide examination or treatment without a delay in order to
inquire about payment status, (10) provide appropriate transfer, (11)
provide whistleblower protections, and (12) meet receiving hospital
responsibilities (nondiscrimination).

Page 7 GAO- 01- 747 EMTALA

Figure 1: EMTALA Enforcement Process

Source: CMS? State Operations Manual (July 14, 1998) and The Emergency
Medical Treatment and Labor Act: The Enforcement Process, Department of
Health and Human Services, Office of Inspector General, January 2001.

CMS regional office Investigation not authorized.

The regional office ha s the discretion

to request a PRO 5- day review. EMT

ALA was not v iolated and

no past violation was found. EMTALA was violated.

CMS regional office sets termination date.

CMS regional office forwards the case to the OIG

for the possible assess

ment of civil monetary penalties and/ orexclusion of physicians
fromMedicare. For medical issues, CMS regional

office forwards the case to a PRO for

a mandatory 60- day physician review. The PRO sends its review to the OIG.

The state survey agency conducts a re- survey of the hospital prior to the
termination date.

Hospital in compliance.

Hospital not in compliance, provider agreement terminated. Complaints

State survey agency Investigation autho

rized. The state survey agency is to conduct an investigation within 5
working days and report the results to the regional office 10, or in some

cases, 15 working days after completing the investigation. The regional
office determines whether

EMTALA was violated, based on the survey agency report and the PRO report if
a review was obtained.

No current EMTALA violation. Investigation found past violation hospital had
corrected on its own.

The OIG decides to pursue civil monetary penalties and/ or physician
exclusion. The OIG decides not to

pursue civil monetary penalties and/ or physicianexclusion and closes the
case.

Page 8 GAO- 01- 747 EMTALA

If the regional office determines that an investigation is warranted, it
authorizes a state survey agency to perform an unannounced, on- site
investigation of the hospital to assess potential violations. 11 The on-
site investigation includes an entrance conference with the hospital; a
review of the emergency department log and a sample of patient records,
including the complaint case; interviews with hospital staff and physicians
involved in the incident; and an exit conference. The survey agency is
required to complete the investigation in 5 working days and report the
results to the regional office within 10, or if there appears to be no
violation, 15 working days after completion of the investigation. The survey
agency also reports to the CMS regional office its view on whether a
violation occurred. If a medical judgment or physician action is in question
and in the view of the survey agency, a physician review is necessary to
determine whether an EMTALA violation occurred, the survey agency can
recommend that the regional office obtain such a review. CMS has the
discretion to obtain physician review of the case. Appropriate physician
review, which must occur within 5 days, may be performed under contract with
a state PRO by physician reviewers who are board certified and have
experience in peer review. 12

The regional office uses the state surveyor?s and, if applicable, the PRO?s
findings to determine if a violation occurred. If a violation is confirmed,
the CMS regional office can terminate the hospital?s Medicare provider
agreement. It initiates either a 23- day termination process, for violations
that represent an immediate and serious threat to patient health and safety,
or a 90- day termination process for other violations. If the facility
submits a plan of correction and CMS accepts it within these time frames,
the termination process ends.

When CMS determines that an EMTALA violation has occurred, it also forwards
the case to the Office of Counsel to the Inspector General for the

11 CMS? State Operations Manual (July 14, 1998) contains instructions for
conducting EMTALA investigations. 12 The PRO examines the medical records in
the case and completes a physician review form for each medical record
reviewed. The form addresses such issues as whether the patient had an
emergency medical condition, the patient received an appropriate medical
screening exam, the patient?s emergency medical condition was stabilized at
the time of transfer, and the hospital provided an appropriate transfer. The
PRO is not asked to determine whether an EMTALA violation occurred.
Physician review may also be provided by other qualified physicians, such as
physicians who are employees of the state survey agency or CMS regional
office and physicians who have contracts with state or local medical
societies.

Page 9 GAO- 01- 747 EMTALA

possible assessment of civil monetary penalties. 13 At the same time, if an
alleged violation requires the opinion of a medical expert, CMS must send
the case to a PRO to obtain a medical opinion of the case within 60 days;
the PRO?s report is also sent to the OIG. The OIG focuses on compliance with
the specific EMTALA statutory requirements and assesses civil monetary
penalties only for these statutory violations. 14 The OIG can fine a
hospital a maximum of $50,000 per violation, $25,000 for a hospital with
fewer than 100 beds. In addition, any physician responsible for examination,
treatment, or transfer of an individual in a participating hospital,
including an on- call physician, who negligently violates a requirement of
the statute, may be fined a maximum of $50,000 and excluded from the
Medicare program by the OIG.

Many emergency departments have experienced an overall increase in patient
volume. From 1994 to 1998, the U. S. population increased by about 4
percent. During the same period, emergency department visits nationwide
increased from about 90.5 million to 94.8 million, an increase of about 5
percent. The amount of the increase in emergency department visits varied by
state; for example, the increase was 2 percent in Arizona and 12 percent in
California, while Georgia experienced a 10- percent decline. Changes in
local communities and individual hospitals could also vary widely. Studies
have found that many emergency department visits are for primary care
services and treatment of nonurgent conditions. 15 , 16

13 CMS also forwards to the OIG cases where the investigation found no
current violation but did find a past violation that the hospital had
already corrected on its own. 14 All enforcement actions are taken on behalf
of the Secretary of HHS. The OIG has been delegated the authority to assess
civil monetary penalties for violations that involve failure to provide an
appropriate medical screening or stabilizing treatment, and inappropriate
transfers. CMS has been delegated the authority to terminate a hospital?s
provider agreement for those violations as well as violations of other
EMTALA- related statutory requirements such as maintaining a central log and
posting signs.

15 Nonurgent conditions are neither life- or limb- threatening nor time
sensitive. 16 John Billings and others, ?Emergency Department Use in New
York City: A Substitute for Primary Care?? The Commonwealth Fund, Issue
Brief (November 2000). David Baker and others, ?Regular Source of Ambulatory
Care and Medical Care Utilization by Patients Presenting to a Public
Hospital Emergency Department,? JAMA, Vol. 271, No. 24 (1994). Kevin
Grumbach and others, ?Primary Care and Public Emergency Department
Overcrowding,? American Journal of Public Health, Vol. 83, No. 3 (1993).
Emergency Departments: Unevenly Affected by Growth and Change in Patient Use
(GAO/ HRD- 93- 4,

Jan. 4, 1993). Changes in the Health Care

Environment

Page 10 GAO- 01- 747 EMTALA

Between 1994 and 1998, the number of uninsured Americans grew steadily from
39.4 million (17.1 percent of the U. S. nonelderly population) to 43.9
million (18.4 percent). Uninsured people are less likely to have a usual
source of health care and are more likely to have difficulty in gaining
access to care. Compared with the insured, uninsured adults are four times
and uninsured children five times more likely to use the emergency
department.

Hospital officials and physicians we interviewed said that EMTALA?s purpose
is laudable and that EMTALA has helped reduce the incidence of patient
dumping. However, no reliable measurement is available to ascertain how the
extent of the problem has changed. Hospital and physician representatives
also told us that EMTALA has contributed to the increased use of emergency
departments for the treatment of nonurgent conditions and a decline in
physicians? willingness to provide on- call services to emergency
departments. However, other factors, such as the increase in the number of
uninsured, also contribute to these changes and it is difficult to determine
how much is due to EMTALA. Hospitals and physicians are uncertain about the
extent of their responsibilities under EMTALA and how to apply certain
EMTALA requirements. CMS is aware of the difficulty hospitals and physicians
have encountered in implementing some aspects of EMTALA and is drafting
additional guidance on EMTALA. The agency also is planning to reestablish an
advisory group to help clarify some of these issues.

Hospital officials and physicians we interviewed generally agreed that
EMTALA has an important purpose- to ensure that no one is denied emergency
medical care because of lack of insurance or an inability to pay. Hospitals
and physicians told us that EMTALA has helped to ensure access to emergency
services by reducing the incidence of patient dumping. In addition, they
said EMTALA has made it easier for hospitals to ensure that physicians who
participate in on- call panels come to the hospital when asked and enabled
managed care beneficiaries to receive care without waiting for hospitals to
seek prior authorization.

There continue to be concerns, however, that patients? ability to pay can
affect the care they receive. Representatives of tertiary care hospitals and
public hospitals, which are more likely to receive patient transfers from
other hospitals, agree that EMTALA has reduced the number of inappropriate
transfers they receive but told us that transfers based on financial factors
continue to occur. For example, they said that some Hospitals and

Physicians Have Concerns About Effects and Extent of EMTALA Responsibilities

Providers of Emergency Care Generally Support EMTALA?s Goals

Page 11 GAO- 01- 747 EMTALA

transferring hospitals claim that a patient needs specialized care when in
their view the transferring hospital could adequately care for the patient
within its capabilities. Furthermore, representatives of public hospitals
said that some hospitals operating within larger hospital networks were
transferring uninsured patients to public hospitals instead of to hospitals
in their networks capable of providing for the patient?s care.

The overall impact of EMTALA is difficult to measure. There are no data on
the incidence of patient dumping before the enactment of EMTALA, and there
is no measure of current incidence other than the number of confirmed
violations. Confirmed violations are an imprecise measure of patient dumping
because suspected violations may not always be reported. For example,
hospital officials said they may not always report possible cases of patient
dumping because they are reluctant to jeopardize their relationships with
other hospitals in their community. They said they need to maintain a
positive working relationship with other hospitals and sometimes they rely
on other facilities for patient referrals.

While they support the basic purpose of EMTALA, many hospital officials and
physicians with whom we spoke said that the implementation of EMTALA
adversely affects the efficiency and type of services provided in hospital
emergency departments and results in additional costs to hospitals and
physicians.

Hospital and physician representatives told us that more people are coming
to emergency departments with nonurgent conditions as a result of EMTALA.
Factors other than EMTALA, however, could explain such an increase. The
provider representatives said that patients who face financial or other
barriers to care use emergency departments as their primary health care
provider because they know they will receive care there. The representatives
also noted that it is EMTALA that requires emergency departments to provide
a medical screening exam to every patient who requests examination or
treatment for a medical condition. Although from 1994 to 1998, the rate of
growth of emergency department visits nationwide barely exceeded the rate of
population growth, the number of emergency departments declined by 8 percent
from 1994 to 1999, so the end result could be increased volume in certain
hospitals. Treating patients with nonurgent conditions in an emergency
department can be more costly and less appropriate than treatment in a
clinic or physician?s office- settings that are more conducive to providing
continuity of care. It can also lead to overcrowding that may delay care for
Hospitals and Physicians

Have Concerns About EMTALA?s Effects on Emergency Care

Emergency Department Use

Page 12 GAO- 01- 747 EMTALA

patients with true emergency needs and cause hospitals to divert ambulances
to other facilities, 17 resulting in further delays in urgent care.

Any growth in emergency department visits, particularly for the treatment of
nonurgent conditions, can be attributed to a number of factors, including
increased numbers of indigent and uninsured patients. Some insured patients
with nonurgent conditions seek care in an emergency department because
alternatives are inaccessible when they want or need care. For example, some
Medicaid patients seek care in emergency departments because they have
difficulty gaining access to primary health care. In addition, some patients
enrolled in managed care programs may have difficulty seeing their personal
physician in a timely fashion. Factors that may contribute to crowded
emergency departments include a shortage of health care professionals,
especially nurses, and a shortage of beds for patients needing admission to
the hospital.

Hospital and physician representatives contend that EMTALA has contributed
to an increase in uncompensated care in hospital emergency departments.
According to the American Hospital Association, overall hospital
uncompensated care as a proportion of hospital total expenses declined from
6.4 percent in 1986 to 6.2 percent in 1999. Although the nationwide
aggregate uncompensated care burden fell, the situations faced by individual
hospitals can vary considerably and some may be providing a greater amount
of uncompensated care. For example, some hospital officials told us that
care to illegal immigrants contributes to their uncompensated care burden,
so hospitals serving communities with an increased illegal immigrant
population could be providing more uncompensated care. 18

Hospital representatives also told us that EMTALA hinders their ability to
ensure that they receive payment for care, partly because they cannot obtain
patients? insurance information before examining them. However, EMTALA does
not prohibit hospitals from seeking all financial information from emergency
department patients. They may follow normal registration procedures, which
may include collecting insurance information, as long

17 In certain situations, a hospital may deny access to patients because it
does not have the staff or facilities to accept any additional emergency
patients at that time. 18 Illegal immigrants are covered by Medicaid for
emergency treatment, but they may be reluctant to seek Medicaid coverage out
of fear that program participation could effect their ability to remain in
the country. Uncompensated care

Page 13 GAO- 01- 747 EMTALA

as they do not delay care in order to inquire about the patient?s method of
payment or insurance status. CMS and the OIG have recommended that hospitals
defer discussing a patient?s financial responsibility or attempting to
obtain a patient?s agreement to pay for services until after stabilizing
treatment has begun.

Hospital and physician representatives told us that some reimbursement
issues have arisen as a result of managed care companies denying payment for
treatment. The 1999 Special Advisory Bulletin says hospitals should not
obtain prior authorization from an individual?s insurance company before
screening or stabilizing treatment begins. Some hospitals and physicians
told us that when they comply with this guidance, certain health plans deny
or reduce payment, claiming that the treatment was not medically necessary,
the patient did not have an emergency condition, or the treatment was
provided at a nonnetwork hospital. According to the American College of
Emergency Physicians, 36 states and the District of Columbia have adopted
laws to address issues related to managed care organizations? payment for
emergency services, such as prudent layperson standards. 19 These standards
compel managed care organizations to base their decision on whether to pay
an emergency department claim on the patient?s presenting symptoms rather
than on the final diagnosis. The Balanced Budget Act of 1997 required
managed care organizations to use a prudent layperson standard for Medicare
and Medicaid beneficiaries. 20

Hospital and physician representatives told us that uncompensated care
associated with complying with EMTALA has contributed to a decline in the
number of physicians willing to serve on emergency department oncall panels.
21 They said that some physicians limit their time on call or completely
avoid participating in the on- call panel. Furthermore, they said that some
specialists are reducing the number of procedures that they have credentials
to perform and are not seeking privileges at hospitals in efforts to avoid
being on call, resulting in a reduced range of services

19 State prudent layperson laws call for coverage of emergency services by
managed care organizations without preauthorization when symptoms are severe
enough to lead a prudent layperson, possessing an average knowledge of
medicine and health, to believe that his or her health or the health of an
unborn child is in immediate jeopardy.

20 Sections 4001 and 4702 of P. L. 105- 33, 42 U. S. C. Sec. 1395w- 22 and
Sec. 1396u- 2. 21 Hospital emergency departments often supplement their
staff with services provided by on- call physicians. The on- call physician
may provide consultation, surgical, or other services as necessary for
patients who need care beyond the capabilities of the emergency physician
and staff.

Page 14 GAO- 01- 747 EMTALA

being available to patients in some hospitals. However, other factors
besides EMTALA may also affect physicians? willingness to serve on call. In
the past, physicians in certain specialties had inducements to join hospital
staffs and provide on- call services because they were dependent on the
hospital setting to be able to perform procedures and needed emergency
patients to build their practices. Today, however, they can perform many
procedures in outpatient settings and gain patients through managed care
networks, resulting in fewer advantages to balance the inconveniences of
serving on call.

Some hospital representatives also expressed concern about EMTALA?s
application to their off- site departments. All off- site departments are
required to have protocols that provide for direct contact between their
staff and emergency staff at the main hospital, and off- site department
staff may not routinely respond to all emergencies by calling 911 and always
relying on the emergency medical system to assume responsibility for the
patient. 22 If an off- site department is routinely staffed by physicians,
registered nurses, and licensed practical nurses, the staff must be trained
in the handling of emergency cases, and at least one person must be
designated as a qualified medical person to initiate screening and
stabilization and arrange appropriate transfers when necessary. Hospital and
physician representatives told us that implementing these requirements will
increase costs and may not result in the most appropriate care for some
patients. Hospital officials reported that there are substantial costs
associated with training off- site facility staff in the handling of
emergency cases. They also said that contacting the main hospital, arranging
for transportation, and completing EMTALA paperwork to document a transfer
could delay the patient?s care.

CMS? position is that it is reasonable to expect off- site hospital
departments to comply with EMTALA. In seeking designation as a hospital-
based provider by CMS, these off- site departments have chosen to operate
under the name, ownership, and financial and administrative control of the
hospital and provide the same type of services as the hospital. In return,
they receive higher reimbursement from CMS than if the facility operated as
a free- standing entity that would not be responsible for complying with
EMTALA. To clarify the requirements for off- campus departments, CMS said in
its August 2000 interim final rule that off- site department staff should
contact the main hospital either after or at the

22 In some emergency situations, CMS would consider calling 911 the
appropriate response. Off- Site Facilities

Page 15 GAO- 01- 747 EMTALA

same time they arrange for an appropriate transfer to another facility if
the patient?s life or health would otherwise be in jeopardy.

An overarching concern among numerous hospital officials and physicians is
uncertainty about the extent of some of their responsibilities under EMTALA.
More than 40 percent of emergency physicians and more than 60 percent of
emergency department directors responding to a recent OIG survey reported
that some parts of the EMTALA law or regulations were unclear. 23 Providers
have raised questions about the amount of care they are required to give
patients to comply with certain EMTALA requirements and about when their
obligations under EMTALA end. Table 1 summarizes several of the specific
issues that have generated concerns.

CMS officials acknowledged that hospitals and physicians have had difficulty
implementing some EMTALA regulations and guidelines and that additional
guidance is needed. CMS has identified several areas in which it believes
its position needs to be further explained and clarified, including the
definition of a hospital?s campus, the application of EMTALA in areas that
have state or local emergency medical system policies, and the
responsibilities of hospitals to provide on- call coverage in emergency
departments. CMS officials also told us that they are planning to establish
a group of EMTALA stakeholders to help clarify issues; in the past the
agency had such an advisory group. The OIG recently recommended that CMS, in
light of EMTALA?s complexity and impact on hospitals and physicians,
reestablish an EMTALA technical advisory group to help the agency resolve
emerging issues related to the law. 24

23 The Emergency Medical Treatment and Labor Act: Survey of Hospital
Emergency Departments, Department of Health and Human Services, Office of
Inspector General, January 2001. 24 The Emergency Medical Treatment and
Labor Act: The Enforcement Process, Department of Health and Human Services,
Office of Inspector General, January 2001. Providers Are Uncertain

About the Extent of Their Obligations

Page 16 GAO- 01- 747 EMTALA

Table 1: Provider Uncertainties About EMTALA Requirements Issue Requirement
Provider uncertainty CMS comment a

Medical screening exam Individuals must be given a medical

screening exam that determines presence or absence of an emergency medical
condition.

How the exam differs from triage or a general exam. Interpretive Guidelines
say triage

determines order in which patients will be seen, not presence or absence of
an emergency medical condition. CMS is not currently developing additional
guidance. Stabilizing treatment Patient must be stabilized. CMS

uses terms ?stable for transfer? (physician believes patient?s condition
will not materially worsen during transfer to another facility) and ?stable
for discharge? (patient can reasonably be cared for as outpatient or later
as inpatient).

Whether the determination that a patient is stable for transfer or discharge
ends the hospital?s EMTALA obligation or whether the hospital must also
ensure follow- up care is provided.

The requirement is fulfilled when a physician determines the patient is
stable for transfer or stable for discharge. The regulations on transfer
requirements refer to patients who are unstable; therefore they do not apply
when a patient is stable for transfer or stable for discharge. b Follow- up
care Stabilized patients must be given a

plan for appropriate follow- up care. Whether a hospital must ensure that
follow- up care is obtained. Hospitals are not required to

ensure that follow- up care is obtained. CMS is not currently developing
additional guidance. 250- yard rule Screening and stabilization are

required for all patients seeking emergency services within 250 yards of the
hospital?s main buildings.

Who designates ?main? buildings and how. Also, whether the rule applies to
entities not related to the hospital, such as a restaurant or apartment
complex.

CMS officials are developing further guidance on how to apply the 250- yard
measure and what properties are covered by EMTALA. Hospital campus Screening
and stabilization are

required at both on- campus and off campus hospital departments. c

Whether this applies to all individuals seeking care in departments that
normally require an appointment.

It applies if the person says there is an emergency or a reasonable person
would say there may be one. Further guidance is being developed. On- call
coverage Hospital must keep a list of specialty

physicians on call to stabilize emergency patients.

The extent to which physicians must be on call for each specialty a hospital
has on staff. Some hospitals and physicians believe CMS requires full- time
coverage of a specialty if the hospital staff includes three or more
physicians in that specialty.

There is no rule linking extent of coverage with the number of specialists
on staff. Physicians are not required to be on call at all times. Further
guidance is being developed.

Page 17 GAO- 01- 747 EMTALA

Issue Requirement Provider uncertainty CMS comment a

Ambulance A hospital must screen and stabilize patients transported in
ambulances the hospital owns or operates. d

What to do when local emergency medical system policies mandate taking
patients to the nearest hospital.

Compliance with local emergency medical system policies is acceptable,
according to Interpretive Guidelines. Further guidance is being developed.

a This column presents information CMS staff provided to us about each
issue. b Transfer requirements include documenting the risks and benefits of
transfers and forwarding the patient?s medical records to the receiving
facility. c Off- campus departments can include clinics, primary care
centers, diagnostic facilities, and urgent

care facilities for which the hospital has obtained designation as a
hospital outpatient department. d The Ninth U. S. Circuit Court of Appeals
also applied EMTALA to nonhospital- owned ambulances.

The Court said that hospitals could not turn away ambulances after radio
contact is made unless they do not have the staff, facilities, or equipment
to treat the patient. Arrington v. Wong 237 F. 3d 1066 (9th Cir. January 22,
2001).

CMS conducts about 400 EMTALA investigations a year; on average, about half
result in confirmed violations. Hospitals? EMTALA violations usually involve
failure to provide a medical screening exam, stabilizing treatment, or an
appropriate transfer for patients seeking care in the emergency department.
Few hospitals have been terminated from the Medicare program for committing
EMTALA violations; most adopt corrective actions that resolve the EMTALA
deficiencies. Hospitals are concerned about several aspects of the
enforcement process, including CMS? minimal enforcement flexibility. CMS
officials would also like to have more EMTALA enforcement flexibility, such
as the range of sanctions it can use in enforcing nursing home standards. In
deciding whether to pursue civil monetary penalties, the OIG is most
concerned with encouraging a hospital?s or physician?s future compliance
with the statute and has assessed fines in less than half of the violation
cases forwarded by CMS. Very few physicians have been fined.

The number of confirmed EMTALA violations is relatively small compared to
the total number of emergency department visits, which totaled about 97
million in 1999. Enforcement of EMTALA is a complaint- driven process; CMS
investigates a hospital only when it receives information about an alleged
EMTALA violation. Since CMS issued EMTALA regulations in 1994, the agency
has conducted an average of 400 investigations per year; on Numbers of
EMTALA

Violations and Fines Relatively Small, and Hospitals Are Rarely Terminated

Most EMTALA Violations Involve Failure to Screen, Stabilize, or Transfer
Appropriately

Page 18 GAO- 01- 747 EMTALA

average, about half have resulted in confirmed violations (see fig. 2). 25
The average annual number of hospitals with confirmed violations represents
less than 5 percent of hospitals with emergency departments. In fiscal year
1999, CMS conducted 431 investigations and found 215 confirmed violations;
most of the termination processes it initiated were in the 90- day category.

Figure 2: Total EMTALA Investigations and Confirmed Violations, Fiscal Years
1995 - 1999

Source: CMS central office EMTALA investigation logs.

25 In some cases the original complaint was not substantiated, but other
EMTALA violations were identified during the investigation.

0 100

200 300

400 500

1995 1996 1997 1998 1999

Investigations Confirmed violations 455

343 452

379 431

195 201 183 193

215

Page 19 GAO- 01- 747 EMTALA

We reviewed a randomly selected sample of fiscal year 1999 EMTALA case files
in two CMS regions, Region IV (Atlanta) and Region IX (San Francisco), to
ascertain the types of complaints investigated and the nature of confirmed
violations. In our sample of 36 case files, 21 of which involved confirmed
violations, the violations usually involved multiple deficiencies, with the
deficiencies per case ranging from 1 to 6. 26 All the cases with confirmed
violations that we reviewed included deficiencies related to medical
screening, stabilizing treatment, appropriate transfers, or receiving
hospital responsibilities. None of these hospitals was cited for an EMTALA
violation that involved only administrative or documentation deficiencies,
such as deficiencies involving hospitals having and following appropriate
policies and procedures, sign posting, or maintaining an emergency
department log or transfer records. These types were always joined with at
least one deficiency related to patient treatment. For example, in Region IV
a hospital in violation of EMTALA was cited for not maintaining a central
log on each individual coming to the hospital seeking emergency services,
not providing a medical screening exam and treatment, and for
inappropriately transferring a patient who had arrived at the emergency
department in an ambulance. (See app. II for examples of confirmed
violations from the cases we reviewed.)

The OIG recently reported that CMS? regional offices differed in the number
of EMTALA investigations conducted and the proportion of their
investigations that result in confirmed violations; 27 we found that the
regions also differed with respect to the proportion of their termination
actions that fell into the 23- day and 90- day categories. Our analysis
showed that for complaints received during fiscal year 1999, 25 percent of
Region IV?s 103 investigations resulted in confirmed violations and 77
percent of Region IX?s 52 investigations resulted in confirmed violations.
One possible reason for this difference is variation in the two regions?
approach to screening complaints. In both regions, EMTALA complaints are
generally made to the state survey agency. CMS Region IV authorizes an
investigation for almost all complaints that allege EMTALA violations
because, according to regional officials, initial complaint intake at the
state agency usually does not obtain enough facts to determine that a

26 Three case files in our sample had one deficiency each. In one case a
hospital was cited for not providing stabilizing treatment and in two cases
the hospitals were cited for refusing to accept a transfer.

27 The Emergency Medical Treatment and Labor Act: The Enforcement Process,
Department of Health and Human Services, Office of Inspector General,
January 2001.

Page 20 GAO- 01- 747 EMTALA

violation did not occur. State agencies in region IX also often receive
incomplete complaint information. However, when the Arizona and California
state survey agencies receive a complaint without enough initial information
to determine whether to forward the complaint to the regional office for
investigation authorization, they conduct a preliminary review at the
hospital. They refer the complaint to the regional office only if they
believe it warrants an EMTALA investigation.

Regions IV and IX also vary in their use of the discretionary 5- day PRO
review. In Region IV, cases that involve screening, treatment, and
stabilization are always sent to the PRO for a 5- day review, while Region
IX generally does not use 5- day PRO reviews for EMTALA investigations.
Region IX officials told us they have not been necessary because the cases
they have investigated have involved basic, straightforward violations of
EMTALA- e. g., a person presented at a hospital emergency department and was
not given a medical screening exam- rather than issues regarding the extent
of physician care provided. However, hospital officials and physicians in
Region IX said that judgments on physician care have been involved in some
deficiency findings done without a 5- day PRO review. In its recent report,
the OIG found that CMS did not always obtain a 5- day peer review before it
considered terminating a hospital for deficiencies involving medical reasons
and recommended that CMS ensure that peer review occurs before initiating
termination actions in such cases.

Most hospitals in violation of EMTALA avoid termination by developing and
implementing corrective action plans that outline how they will correct
their deficiencies and prevent future problems. Only four hospitals have
been terminated from the Medicare program because of EMTALA violations, all
more than 11 years ago (one in 1987, two in 1988, and one in 1989). Two of
the four hospitals were later recertified. A hospital must submit a
corrective action plan prior to the date on which the CMS regional office
would notify the public of the proposed termination action and with enough
time for the state agency to conduct a resurvey and verify CMS Usually
Accepts

Corrective Action Plans and Rarely Terminates Hospitals

Page 21 GAO- 01- 747 EMTALA

the corrections. 28 If the regional office determines that the hospital is
in compliance, termination is rescinded. 29

Corrective action plans need to address each of the deficiencies for which a
hospital has been cited, detail the steps the hospital has taken or will
take to resolve the deficiencies, state when the correction took place, and
identify someone responsible for monitoring the correction. For example, one
hospital?s corrective actions included mandatory in- service education for
hospital staff on EMTALA requirements, a revised emergency department triage
policy, and a revised medical screening exam policy that prohibited
performing medical screening exams in the lobby area of the emergency
department and prohibited nurses from performing them. Another hospital?s
corrective actions included establishing a central emergency room log for
the registration of every patient who presents to the emergency department
and revising its medical screening policy to provide medical screening exams
to all patients arriving in the emergency room, including those arriving by
ambulance.

Hospital representatives have raised concerns about CMS? enforcement
process. They are troubled that there is no procedure for hospitals to
challenge or appeal a violation decision before the termination process
begins. 30 In addition to submitting a plan of correction, hospitals may
submit evidence that the deficiencies did not exist. However, hospital
officials told us that they do not have time to focus on the accuracy of
CMS? information or the appropriateness of the decision because as soon as
they receive a termination letter, the 23- or 90- day termination period
begins. They said that to avoid risking termination from the Medicare
program, hospitals focus on developing a corrective action plan to satisfy
CMS rather than attempting to appeal the violation determination.

28 In a 23- day termination action, public notice is published on the 21st
day; in a 90- day termination action, public notice is published on the 75th
day. 29 In a 23- day termination action, if the corrective action plan
provides credible evidence that the immediate and serious threat to patient
health and safety has been removed after initiation of termination action,
the survey agency will conduct a resurvey. If that evidence is verified, the
regional office will switch from 23- day to 90- day termination procedures.
This allows the hospital time to prove that the corrective action is
adequate to ensure that no further violations will occur. The state agency
will conduct a second resurvey within 60 days of the first resurvey to
assess continued compliance.

30 The statute does not provide for any interim action short of termination.
See 42 U. S. C. Sec. 1395cc. Hospitals Have Concerns

About CMS Enforcement

Page 22 GAO- 01- 747 EMTALA

Hospital representatives have also expressed other concerns. Although state
surveyors are generally nurses and sometimes physicians, hospital
representatives told us that CMS regional offices should use PRO 5- day
reviews more frequently; they say that if a state surveyor is assessing
whether sufficient medical intervention occurred, clinical judgment is in
question and physicians from a PRO should be involved. Hospital and
physician representatives have also expressed concern that when CMS assesses
whether an appropriate medical screening exam or needed stabilizing
treatment occurred, the agency sometimes moves beyond these issues to
evaluate the quality of care. Although CMS officials told us that an EMTALA
investigation is a review of a hospital?s process and not a quality of care
review, the distinction is not always clear. For example, the peer reviewer
must determine whether the examination was sufficiently thorough to identify
the presence of an emergency medical condition.

Another issue some hospitals have raised is CMS? lack of flexibility for
enforcement. By law, when a hospital has been found to have violated a
provision of its provider agreement, the only sanctions are termination of
the agreement and possibly civil monetary penalties. Hospital officials told
us that an intermediate sanction other than termination might be appropriate
in some cases. CMS officials told us that they would like more EMTALA
enforcement flexibility, such as the additional actions that the Congress
authorized CMS to take when enforcing nursing home standards, which include
a directed plan of corrections, directed in- service training, on- site
monitoring of corrections, and denial of payment. 31

There is also concern about delays between an EMTALA investigation and the
hospital?s receiving notification of CMS? resolution of the case. In our
sample of fiscal year 1999 cases, Region IV took an average of 11 months and
Region IX took an average of 2 months to notify hospitals of the outcome of
an investigation. 32 The OIG pointed out in its enforcement report that
although state survey agencies must adhere to strict time frames when they
investigate complaints, CMS is not subject to time frames. The OIG observed
that after waiting a long time to learn the outcome of an investigation, a
hospital could be subject to a fast- track termination for an incident that
occurred months or years before, and the OIG stated that long delays in
reviewing and deciding such cases defeat the purpose of the 23- day process,
which is to address immediate threats

31 42 U. S. C. Sec. 1395i- 2a( h). 32 Cases included both confirmed
violations and findings of no violation.

Page 23 GAO- 01- 747 EMTALA

to patient health and safety. The OIG recommended that CMS? central office
increase its oversight of regional offices in connection with time frames
and other aspects of the enforcement process, in part to improve the
consistency of the process. In 1999, CMS began to conduct monthly
teleconferences with the regional offices to improve consistent enforcement
among the regions and to share information. The agency has a working group
that is charged with establishing time frames for regional office actions,
such as for determining a violation and reviewing PRO reports.

The OIG has discretion to decide whether to assess civil monetary penalties,
and OIG officials told us their major concern is encouraging future
compliance with EMTALA and deterring future violations. When the OIG
receives a case from CMS, it first determines whether there is a violation
of the EMTALA statute, and it declines cases that do not involve specific
EMTALA statutory violations. To make this decision, the OIG relies on the
state survey report, the PRO review, and information collected by CMS. When
a case involves a violation of the EMTALA statute, the OIG can decide either
to pursue civil monetary penalties or exercise prosecutorial discretion and
not impose a fine. In making this decision and in determining the amount of
a fine, the OIG considers several factors, including the seriousness of the
patient?s condition, the nature of the violation, the culpability of the
hospital or physician, and the effect of the penalty on the hospital?s
ability to provide care. 33 For example, in one case the OIG did not pursue
a civil monetary penalty against a hospital that violated EMTALA because it
was an urban hospital that played an important role in providing health care
in its community and the hospital had taken steps to ensure its future
compliance. The OIG may not pursue civil monetary penalties if a hospital
has taken corrective action on its own or self- reported the violation,
because OIG officials wish to reinforce hospitals? self- reporting and
taking the initiative to implement corrective actions.

33 The OIG undertakes a factual investigation to assess the hospital?s
culpability. The OIG asks the hospital to provide additional information and
focuses on factors such as the hospital?s actions or lack of actions and
whether the hospital demonstrated knowledge of its responsibility under the
statute, such as having policies and procedures that comply with EMTALA, in
contrast to having policies that could easily result in violations. For
example, if a hospital emergency department was aware that it had a problem
with on- call coverage and did not attempt to resolve the coverage shortage,
OIG would consider the hospital culpable. If, however, an on- call physician
refused to come in despite being told by the hospital of his obligation, OIG
would consider the hospital?s culpability far smaller. Inspector General
Focuses

on Future Compliance in Assessing Fines

Page 24 GAO- 01- 747 EMTALA

From January 1, 1995, through March 30, 2001, the OIG processed a total of
605 EMTALA violation cases; 237 cases were settled and 368 cases were
declined. 34 Overall, the OIG has declined about 61 percent of the violation
cases forwarded by CMS. The OIG told us it would not be accurate to conclude
from the fact that the OIG decided not to assess fines in some cases that
CMS had erred in its conclusion that a violation had occurred. As a
prosecutor?s office, they said, the OIG always considers a range of issues
in deciding whether an additional enforcement action is warranted. Moreover,
the OIG takes into account its resources and what it is trying to accomplish
in education and future compliance. Some of the major factors that may
influence its decision include the seriousness of the violation, CMS?
enforcement activity that has already occurred, additional information
discovered during the 60- day PRO review or brought to the OIG?s attention
by the hospital, and whether the hospital has been privately sued for its
actions.

Once the OIG decides to pursue a civil monetary penalty, it tries to
negotiate a settlement amount with the hospital. 35 If a settlement cannot
be reached, the OIG initiates the administrative process to collect the
civil monetary penalty amount it considers appropriate. If the hospital
appeals the OIG action, the case is resolved at an administrative hearing.
However, this rarely occurs; there have been fewer than 10 administrative
hearings. From 1995 through 2000, the OIG collected over $5.6 million in
fines from 189 hospitals and 19 physicians. 36 The majority of hospital
fines were $25,000 or less. Between 1997 and 1998 there was a dramatic
increase in the number of cases settled and the amount of fines collected.
From 1995 to 1997, the OIG settled an average of about 16 cases per year and
collected about $997,000 in fines in total. From 1998 to 2000, it settled an
average of 55 cases per year and collected about $4.7 million in fines.
According to the OIG, these increases reflected additional OIG staffing that
resulted in the elimination of a backlog of cases rather than a surge in
confirmed EMTALA violations.

34 The OIG had 98 cases that were pending as of March 30, 2001. 35 As part
of settlement agreements, the OIG has required hospitals to publish
community service announcements about their EMTALA responsibilities in a
local newspaper twice a year.

36 The money collected from civil monetary penalties is deposited in the
Medicare trust fund.

Page 25 GAO- 01- 747 EMTALA

The OIG has the authority to assess civil monetary penalties against
physicians, and it examines the activities of the individual physician
involved in every case forwarded by CMS. The OIG pursues a case against a
physician only if it considers the physician largely responsible for the
violation. Overall, the OIG has sought civil monetary penalties from 28
physicians and collected $412,500; it generally does not pursue a physician
unless clearly culpable behavior is involved, such as an on- call physician
refusing to come to the hospital to treat a patient when asked by the
hospital.

Hospital emergency departments? and emergency physicians? concerns with
overcrowding, long delays for patients, and local issues of uncompensated
care are important. Although EMTALA may contribute to these problems, other
factors associated with the changing health care environment, such as the
growth in the uninsured population and aspects of managed care, also
contribute to the conditions of emergency medical care. It is difficult to
assess the relative importance of any one factor.

Violations of EMTALA continue to occur, underscoring the need for effective
enforcement and education. At the same time, hospital and physician
representatives have expressed frustration about the implementation and
enforcement of EMTALA. They have sometimes found CMS? regulations and
guidance to be confusing and are uncertain about how to apply them in some
of the specific situations they encounter in their practice of emergency
medicine. Efforts underway by CMS to improve the consistency of enforcement
among its regional offices and to communicate clear, practical, and timely
regulations and guidance to the medical community could make it easier for
providers to ensure that they are in compliance with EMTALA. Similarly, CMS?
efforts to respond to the OIG recommendation to reestablish a technical
advisory group could help CMS work with hospitals and physicians to achieve
the goals of EMTALA and avoid creating unnecessary burdens for providers.

We provided a draft of this report to HHS for comment. HHS generally agreed
with the report?s findings. In addition, HHS said that it has taken steps to
improve and simplify enforcement of EMTALA, including implementing
procedures and standards for the timely investigation and resolution of
complaints. HHS provided technical comments, which we incorporated where
appropriate. (HHS? comments are in app. III.) Concluding

Observations Agency Comments

Page 26 GAO- 01- 747 EMTALA

We are sending copies of this report to the Secretary of HHS, the
Administrator of CMS, the Acting Inspector General of HHS, officials of the
state survey agencies and PROs we interviewed, appropriate congressional
committees; and others who are interested. We will also make copies
available to others on request.

If you or your staffs have any questions, please contact me at (202) 512-
7119. An additional GAO contact and the names of other staff who made major
contributions to this report are listed in appendix IV.

Janet Heinrich, Director, Health Care- Public Health Issues

Page 27 GAO- 01- 747 EMTALA

List of Committees The Honorable Max Baucus, Chairman The Honorable Charles
E. Grassley, Ranking Minority Member Committee on Finance United States
Senate

The Honorable W. J. ?Billy? Tauzin, Chairman The Honorable John D. Dingell,
Ranking Minority Member Committee on Energy and Commerce House of
Representatives

The Honorable William M. Thomas, Chairman The Honorable Charles B. Rangel,
Ranking Minority Member Committee on Ways and Means House of Representatives

Appendix I: Scope and Methodology Page 28 GAO- 01- 747 EMTALA

To do our work, we interviewed officials at the Department of Health and
Human Services? Centers for Medicare and Medicaid Services (CMS) and Office
of Inspector General (OIG). We also reviewed the relevant statute,
regulations, and guidance, OIG reports on the Emergency Medical Treatment
and Labor Act (EMTALA), and CMS central office and OIG EMTALA case logs.

We conducted site visits to California and Georgia, where we interviewed and
obtained documents from CMS? San Francisco regional office (Region IX) and
Atlanta regional office (Region IV), and California and Georgia survey
agencies and peer review organizations. The San Francisco regional office
enforces EMTALA for Arizona, California, Hawaii, Nevada, American Samoa, and
Guam. We selected the San Francisco regional office for a site visit because
from fiscal year 1994 through fiscal year 1998, it had the highest
proportion of confirmed violations to investigations and had the second
highest number of confirmed violations among CMS? regional offices. The
Atlanta regional office enforces EMTALA for Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. We
selected the Atlanta regional office because during this same time period it
had the highest number of EMTALA investigations and confirmed violations; it
also receives a high number of complaints. We also conducted a site visit to
Arizona where we interviewed the Arizona survey agency, the Arizona Hospital
and Healthcare Association, and the Arizona Medical Association.

In Regions IV and IX, we reviewed a random sample of fiscal year 1999 EMTALA
investigation case files; the results of these reviews cannot be projected
to other files in these regions or CMS? other regional offices. Of the 103
completed investigations in Region IV, we reviewed 22 files- 10 files in
which CMS confirmed that a violation occurred and 12 files with unconfirmed
violations. Of the 52 completed investigations in Region IX, we reviewed 11
files with confirmed violations and 3 files with unconfirmed violations.
Where applicable and available, we reviewed the complaint, state survey
agency report, PRO findings, CMS deficiency report, and hospital corrective
action plans. The initial complaint was not always available in Region IX?s
files. The violation examples included in appendix II were randomly selected
from our sample of cases.

We also reviewed the relevant literature and interviewed and obtained
information from national health care organizations such as the American
Hospital Association, American Medical Association, American College of
Emergency Physicians, American Academy of Emergency Medicine, Association of
American Medical Colleges, Federation of American Appendix I: Scope and
Methodology

Appendix I: Scope and Methodology Page 29 GAO- 01- 747 EMTALA

Hospitals, and National Association of Public Hospitals and Health Systems.
We also had numerous discussions with hospital and managed care company
officials, physicians, attorneys, and representatives of state hospital and
physician groups. The people we spoke with came from the following states:
Arizona, Arkansas, California, Florida, Georgia, Illinois, Missouri, New
York, North Carolina, Pennsylvania, Virginia, and the District of Columbia.

We conducted our work from January through May 2001 in accordance with
generally accepted government auditing standards.

Appendix II: Confirmed EMTALA Violations Page 30 GAO- 01- 747 EMTALA

Table 2 provides information from a random sample of the cases with
confirmed violations that we reviewed at Centers for Medicare and Medicaid
Services (CMS) regional offices in Atlanta (Region IV) and San Francisco
(Region IX). For each hospital cited, the table indicates the deficiencies
cited and provides more detailed information about one or more of the
violations.

Table 2: Examples of 1999 Confirmed EMTALA Violations Region Nature of
violation CMS action a OIG action

IV Failure to provide appropriate transfer and keep log. A bicycle accident
victim was transferred without a screening exam or entry into the central
log. The hospital told the rescue crew that the patient should go to another
hospital because he met trauma criteria when he did not meet the criteria.
The hospital also did not contact or send records to the receiving hospital.

No action; hospital corrected problem before investigation

Pending IV Failure to screen, stabilize, and keep log.

A patient with end stage renal disease was discharged without being
stabilized and died 6 hours later. An infant did not receive an appropriate
screening exam. A motor vehicle accident victim was not stabilized and
became paralyzed in the emergency room.

23- day termination process Pending

IV Failure to screen and provide appropriate transfer. An uninsured patient
with suicidal symptoms was put into a taxi for transfer to another hospital
without being examined. Another patient seeking treatment for acute
psychiatric symptoms also was not appropriately screened.

23- day termination process Pending

IV Failure to screen, stabilize, keep log, follow procedures, treat without
delay, and provide appropriate transfer. Violations were connected with
multiple patients, including one bleeding at a dialysis shunt site who was
not screened or stabilized before transfer to a receiving hospital that had
not been notified.

23- day then 90- day termination process Pending

IV Failure to meet receiving responsibilities, follow procedures, and
provide appropriate transfer. Refused to accept transfer of an unstable
patient with multiple traumas from a motor vehicle accident. Did not
document transfer risks and benefits for two critical care patients
transferred elsewhere.

23- day termination process Pending

IX Failure to screen, stabilize, follow procedure, and provide appropriate
transfer. Obstetrics patients were screened by nurses when hospital policy
did not indicate that they were qualified to do screening. Documentation was
missing on whether other patients were screened or had left the hospital
against medical advice. Some patients were not told the risks and benefits
of transfer.

90- day termination process Declined to take

action IX Failure to screen, follow procedure, keep log and transfer
records, and post

signs. An insured patient with a rash received screening while an uninsured
patient with the same symptoms was sent to a clinic without screening.
Appropriate screening was not provided in 22 of 37 patient records reviewed.

90- day termination process Pending

IX Failure to screen, follow procedure, keep log, and provide appropriate
transfer. A possible sexual assault victim who arrived in an ambulance was
sent to another hospital without screening, and there was no evidence in the
record that the receiving hospital was notified or had agreed to accept the
patient.

90- day termination process $25,000

settlement

Appendix II: Confirmed EMTALA Violations

Appendix II: Confirmed EMTALA Violations Page 31 GAO- 01- 747 EMTALA

Region Nature of violation CMS action a OIG action

IX Failure to stabilize and follow procedure. A 14- month- old patient with
a broken arm was examined and given a splint, but family was not given
proper discharge instructions.

90- day termination process Declined to take

action IX Failure to Screen, Stabilize, Treat Without Delay, and Follow
Procedures.

Before examining a patient with chest pain, the hospital called his
physician, who denied insurance coverage for the emergency visit. The
hospital told the patient he would be responsible for the cost of his visit,
and the patient decided to leave and see his physician later that day.
Another patient from a skilled nursing facility was diagnosed with pneumonia
and medicated but sent back to the skilled nursing facility without a
physician determination that he was stable; he returned later in worse
condition and died.

90- day termination process Pending

a For violations that represent an immediate and serious threat to patient
health and safety, hospitals are given 23 days to submit an acceptable
corrective action plan or be terminated from the Medicare program. For other
violations, hospitals are given 90 days.

Appendix III: Comments From the Department of Health and Human Services

Page 32 GAO- 01- 747 EMTALA

Appendix III: Comments From the Department of Health and Human Services

Appendix III: Comments From the Department of Health and Human Services

Page 33 GAO- 01- 747 EMTALA

Appendix IV: GAO Contact and Staff Acknowledgments

Page 34 GAO- 01- 747 EMTALA

Helene F. Toiv, (202) 512- 7162 Other major contributors to this report were
Renalyn Cuadro, Janina Johnson, and Stefanie Weldon. Appendix IV: GAO
Contact and Staff

Acknowledgments GAO Contact Staff Acknowledgments

(290028)

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