EMTALA, the federal Emergency Treatment and Active Labor Act, requires that anyone presenting to an ED for care be treated and stabilized — regardless of ability to pay.
However, the Centers for Medicare and Medicaid Services (CMS) have long held that EMTALA, is not a healthcare program. In 1986, when signed into law by President Reagan, it was structured as a regulatory mandate on hospitals participating in CMS programs. So unlike CMS programs for the elderly or the medically indigent, EMTALA was never directly funded by Congress.
And that could mean soaring costs for hospitals if the ACA is dismantled without an adequate replacement.
Let's take a closer look at those potential costs using the following chart to track the numbers.
In 2011, before enrollment in ACA-related programs began to ramp up, there were 49 million U.S. residents without healthcare coverage throughout the entire year and tens of millions more who lacked coverage for part of the year. Total Medicaid enrollment at that time was only 55 million.
That year, 18 percent of all outpatient visits to EDs were by the uninsured — more than 20 million visits. Seven percent of all hospital admissions were for the uninsured — another 1.35 million encounters with an average cost of $10,000, based on estimates of the Agency for Healthcare Research and Quality (AHRQ).
By the end of 2016, the ranks of the uninsured had dropped by 20 million due to expansion of Medicaid in many states as well as tax credits offsetting the cost of private coverage through ACA-related exchanges in all states.
EMTALA-related hospital costs have dropped by 42 percent because of ACA — an estimated $13.4 billion reduction in uncompensated care. (Advocates for the hospital industry will point out that much of the economic benefit was dampened by phased-out payments from Medicaid's Disproportionate Share program and reductions in payments for Medicare services. Both of these changes were baked into the ACA.)
For Representative Tom Price, President Trump’s nominee as Secretary of Health and Human Services, the parent agency for CMS, as well as many newer members of the House, Senate, and their staffers, it is important to understand what's at stake. An ACA repeal, without adequate funding to sustain current levels of coverage in Medicaid and ACA-related insurance products, will likely drive EMTALA-related services in U.S. hospitals to levels above those seen in 2011.
One of the established problems with the ACA mandate on individuals to purchase coverage is that most uninsured U.S. citizens are younger adults who deem themselves to be invincible long before they opt out of ACA programs. Yet tens of thousands of them will still develop appendicitis each year and will require hospital care to survive. Tens of thousands more will be involved in serious vehicular accidents or life-threatening penetrating injuries. Millions more are predisposed to chronic diseases such as hypertension and diabetes that will ultimately cost CMS programs trillions of dollars without timely intervention — ideally before they reach retirement age or become permanently disabled from their illnesses or injuries.
Notwithstanding affordable access to community care for more trivial illnesses, multiyear patterns of per capita utilization by U.S. residents suggest that loss of ACA coverage in 2017 (or 2018–2019) would increase ED encounters by the uninsured by almost nine million visits.
Based on cost estimates for ED visits in a recent study by RAND, uncompensated EMTALA-related hospital outpatient care would increase by $7.9 billion if all persons with ACA coverage were to lose it in 2017. More significantly, ED patients losing ACA coverage for injuries or illnesses that can’t be stabilized for discharge to community settings would likely result in 553,910 admissions from EDs (or transfers to safety net facilities). Based on AHRQ estimates, this would increase the marginal costs of EMTALA for hospitals by another $5.5 billion in 2017.
One of former President Obama's policy rationales for the ACA was to eliminate the need for cost shifting by hospital-based providers of emergency care. Should all elements of the ACA be repealed without thoughtful replacement, who would ultimately bear the recurring cost of $13.4 billion per annum for EMTALA services to 20 million ex-beneficiaries of ACA programs? Other payers, including Medicare, are unlikely to tolerate cost shifting the EMTALA burden as they continue to jawbone hospitals on the value of covered services for their own populations.
The new Congress and President Trump must understand the recent findings of RAND: the ED is now the main portal of entry for hospital inpatients for all beneficiaries of CMS programs. Unless Congress also repeals EMTALA, EDs will continue to be the universal portal of entry for hospital care for U.S. citizens without health insurance.
While the ACA has been the object of great emotional conflict and multiple legal disputes reaching the U.S. Supreme Court, there has been implicit agreement since 1986 — if not longer — that no American should be disabled or die for lack of proper emergency care.
Members of the House and Senate don’t want to run for re-election in 2018 with dead bodies piling up on the highways and byways of America any more than President Trump dreams of running for re-election in 2020 without having established the superiority of TrumpCare.
It’s EMTALA, Secretary Price.