The EMTALA "Put" and the Acute Care Continuum’s "Call"

Wesley Fields

Wesley Fields , MD, FACEP

Emergency Physician, Board Member

Published November 06, 2012

One of the ironies of our intensely divisive political season is that Republican and Democratic candidates agree that universal access to health care already exists in the United States, and preceded the Affordable Care Act by 24 years.

The Emergency Treatment and Active Labor Act (EMTALA) will continue to define unscheduled ambulatory care and acute hospitalization for the entire US population, regardless of how the elections for the White House and Congress impact ACA, the Fiscal Cliff, and the precipice in Medicare for physicians known as the Sustainable Growth Rate.

Taken together, the patient protections of EMTALA structured as mandates on Medicare participating hospitals touch nearly half of all costs in the current US health care system. Inpatient hospital care accounts for more than one third of expenditures(pdf). And more than half of all admissions are direct results of ED visits for patients who are too unstable to be discharged home. Ambulatory ED visits account for nearly one third of all unscheduled visits. A far larger proportion of first contact conditions of higher risk and higher cost are performed in EDs. This high-acuity effect is compounded for those who are uninsured, or underinsured.

The concerted efforts of ED providers to protect EMTALA-related health care rights not only saved countless American lives. It probably worked too well, allowing politicians to side-step fundamental health care reform for decades. Even after ACA was passed, the constitutional challenges to the individual mandate and expansion of Medicaid were ultimately debates about how the unfunded costs of EMTALA care should be shared between consumers, health care industries, and government.

Another proof of the structural importance of EMTALA is that several sections of ACA refer to the need for providers and health plans to comply with its statutory requirements. Obamacare does not ‘repeal and replace’ EMTALA, it reinforces the importance of its patient protections; health coverage alone does not assure timely access to care. Yet ED-based advocates for health care reform come away from most meetings with policy makers in either national party feeling like illegitimate orphans. Emergency care providers amount to a small fraction of the physician workforce. They have unsurpassed experience providing equitable and uniform care to the entire US population. But public and private payers who honor emergency physicians for their high-level performance 24/7 also share fear and loathing of unsustainable hospital costs and charges.

In turn, many hospitals are doing everything they can to externalize the professional component of their unfunded EMTALA mandate. Unlike scheduled hospital services – including most lucrative elective procedures – one out of five ED visits are by patients without health coverage. Even larger numbers of ED visits per capita are by covered by Medicaid, which does not cover hospital or physician costs in most states. And many hospitals struggle to break even on bundled payments from Medicare for inpatient care. Finally, hospitals are less and less able to shift costs to privately insured patients, as attrition continues in employer-sponsored programs, while both demand better value and more accountability from network facilities.

Throughout the EMTALA era, hospitals have attempted to provide adequate physician staffing and backup for their EDs in one of two ways: directly employing emergency physicians, or, contracting with emergency medical groups to provide staffing services. Directly employing well-trained EPs at market rates means assuming an uncompensated care burden that the American Medical Association estimated to be $138,300 per physician – a figure that has probably risen since it was reported several years ago.

It should be no surprise that most hospitals choose to externalize ED staffing costs through contracting with outside EM groups. This amounts to a reverse franchise fee: in exchange for the revocable privilege of seeing all ED patients, EM groups assume the risk at their own peril. The size of the reverse franchise fee is largely dependent on the location of each hospital and the payer mix of its community. From the hospital’s point of view, facing reductions in payments from every payer class over the next several years, one might describe it as an EMTALA ‘put’; a way of selling the professional component of acute hospital care short and cutting their losses by eliminating physician subsidies for EMTALA-related services.

More recently, hospitals have begun to bundle ED staffing contracts with hospitalist programs that provide inpatient care for unassigned patients admitted through the ED. In the idiom of EMTALA, ‘unassigned’ is often synonymous with uninsured, or underinsured – the most common cause for patients to lack a primary care provider. This trend makes perfect sense from the hospital’s point of view. Backup panels for general medicine admissions were historically little more than primary care physicians who hoped to build private practices through ED backup, or who retreated to the hospital after community-based practices failed.

EM groups that serve only one location, or a few neighboring facilities, seldom have the means or the will to extend beyond the ED into other hospital-based specialties. Regional or national staffing groups, on the other hand, operate with business models that allow more revenue sharing across sites and across specialties. Since many of the larger physician staffing or practice management entities are investor-owned, a new dynamic is emerging. For-profit healthcare companies are now helping the hospital industry, which remains mostly tax-exempt and non-profit in structure, to collateralize the unfunded costs of EMTALA related care. Moreover, this is happening well in advance of the expansion of health care coverage envisioned under ACA in 2014, which may or may not occur at all.

Market theory requires a buyer and a seller for every transaction. In a reforming healthcare system trying to reduce costs, improve value, and enhance the experience of care of each patient, Emergency Medicine along with other specialties in the Acute Care Continuum are ready to buy the EMTALA ‘put’ from hospitals. I believe that these groups will learn from collaborating on evidence-based inpatient care. They can eliminate variation around core measures for CMS in ways that will benefit all payer classes. I believe that their successes will earn referrals from primary care providers, as well contracts with private payers. Perhaps most of all, the concept of an integrated Acute Care Continuum will provide physician leadership and superior practice management to our own communities.

Buying the EMTALA ‘put’ from client hospitals is an opportunity I believe providers should embrace. I believe our success turning mandates into missions, and inspiring providers to grow as owners and leaders, means that we can help hospitals and communities bridge the gap between EMTALA and ACA, and whatever comes after it, on our way to a healthcare system that is sustainable as our own enterprise.

You could say it is the Acute Care Continuum "call."

Partnering to improve patient lives

Vituity branding orange wave pattern background