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The Emergency Medical Treatment and Active Labor Act (EMTALA) remains a major challenge to hospitals because the regulation is so broad and often has multiple interpretations in the way the Health Care Financing Administration (HCFA) interprets it, experts contend. In addition, the Department of Health and Human Services’ Office of Inspector General (OIG) has discretion in how it assesses financial penalties and the courts often interpret EMTALA different ways.
"There are many gray areas, and providers trying to deliver care in their emergency department must understand that there is often much confusion," warns Charlotte Yeh, MD, FACEP, medical director for Medicare policy at the National Heritage Insurance Co. in Hingham, MA. In fact, Yeh says court systems are taking on a whole new interpretation of EMTALA, and interpretations can vary among federal district courts.
Yeh says that makes it extremely important going forward that every hospital has at least one individual who is very knowledgeable about EMTALA, regarding both regulations and case law, particularly for decisions that apply to their particular region.
Yeh says there are several other measures hospitals can take to limit there risk in this area. For example, she says it also is important to be aware of new advisories and new regulations that may be issued periodically. She points to an OIG survey issued in November 1999 that showed that many hospitals were unaware of the special advisory on EMTALA.
In addition, Yeh says it is critical that each hospital develop its policies and procedures very carefully. She warns that hospitals typically are held accountable for following their own rules. "Make sure that your policies and procedures are written with enough instruction to your staff but also written with a fair degree of flexibility, because not every circumstance can be anticipated."
Third, hospitals must ensure patients understand the EMTALA requirements. In short, she says hospitals must understand the risk of a patient filing a complaint.
On a more positive note, Yeh points out that most courts generally have decided EMTALA should not be a forum for federal malpractice claims, but that it should stay within the state court system.
"Most of the federal courts tend to look at whether or not disparate or discriminatory treatment occurred and whether a hospital failed to follow its own rules," she asserts.
Finally, she notes that the General Accounting Office (GAO) has initiated a study of EMTALA that is due out in late spring or early summer. She says it will offer an important opportunity for the provider community to provide feedback on what their experiences under EMTALA have been.
She also recommends that hospitals talk to the American Hospital Association, state hospital associations and specialty societies such as the American College of Emergency Physicians about experiences that can be transmitted to the GAO.