Cobra Laws And EMTALA

Issues of Concern

The primary issue of concern with the COBRA and EMTALA laws is that the terminology used is vague and, therefore, open to interpretations.[3] The most commonly cited reason for an EMTALA violation is inappropriate MSE.[1] A medical screening exam can differ between practitioners and may sometimes be performed by nonphysicians such as nurse practitioners (NPs) or physician assistants (PAs). Various courts have accepted different meanings of MSE.[3] CMS has provided a worksheet that asks investigators about the MSE, which can be anywhere on the continuum between a focused and often short history and physical examination to a lengthy examination involving laboratory examinations, diagnostic imaging, consultations, and procedures.[1] The failure of Congress to define MSE has led to more lawsuits than any other aspect of EMTALA.

HMOs and other such insurance programs are often not held liable for these violations while they gatekeep the care their clients receive. While insurance programs are not penalized or pay for this service, physicians and hospitals do not receive compensation for the treatment of uninsured and underinsured patients.[1] Retrospective analysis of medical screening exams places the burden of the violations on the shoulders of physicians. The fine for EMTALA violation is up to $50,000 and is not covered by physician malpractice insurance.[3] A study done in California demonstrated a six-year worsening of on-call physician responsiveness. Physicians who responded to this survey cited that the insurance status of their patient population was a reason to avoid taking the call that worsened from 42% to 80% over the six years of the study. This paper also highlighted that emergency departments with a majority of uninsured patients were less likely to have access to specialists.[9] This situation worsened in 2003 when EMTALA updates mandated that on-call physician panels did not need to be from every specialty, just those that met the needs of the community, and so subspecialists are rarely apart of the on-call panel of physicians.[1]

Of all the investigations performed by CMS, 40% were violations, but only 3% resulted in fines.[1] The majority of recent violations were against hospitals and related to patient dumping due to lack of insurance. Uninsured patients are more likely to experience interhospital transfer.[10] The violations against individual physicians were most commonly against specialists who refused to come in and evaluate emergency department patients. There was a single emergency medicine physician from 2002 to 2015 who violated EMTALA.[11]

About 20% of EMTALA violations settlements between 2002 and 2018 included psychiatric emergencies.[12] Due to the nature of mental illness and the lack of facilities at many hospitals to adequately treat these conditions, results in a high number of transfers from emergency departments to facilities that are better equipped. These facilities often screen patients for insurance coverage and the ability to pay and often deny transfers, which is a clear EMTALA violation.[13] Patients who need psychiatric care are often subjected to long delays in care while waiting for an appropriate facility, which increases hospital mortality and length of stay.[14]

Clinical Significance

EMTALA and COBRA laws prevent "patient dumping," which is a form of economic discrimination where uninsured patients do not receive treatment and transfer to public institutions or are discharged because of the high anticipated costs of their emergency diagnoses or treatments.[1] Before enactment, patient dumping was a significant issue in emergency medicine. There were cases of patients being turned away from hospitals or transferred without stabilization, resulting in poor outcomes.[15] Patient dumping still happens today, but it is a far lower rate than before enactment.[16] A study in 1988 demonstrated that 91% of patients transferred to another emergency department were transferred relative to an inability to pay or a lack of insurance.[17] Currently, the rate of patient dumping is estimated to be 1.7 violations per 1,000,000 emergency department visits.[8][18] It is difficult to find an accurate rate before enacting EMTALA as there was no monitoring for such violations before enacting EMTALA.

EMTALA has often been cited as a major contributor to emergency department overcrowding and costs.[19] Overcrowding is due to a lack of avenues to divert patients who need medical care that is not emergent but who present to the emergency department knowing they will receive some type of care.[3] EMTALA is an unfunded mandate, and it places a financial burden on hospitals and physicians. In 2013, emergency departments in the United States provided $50 billion of uncompensated care under EMTALA.[8] Unfortunately, EMTALA doesn't prevent uninsured patients from being billed after receiving care and can financially cripple patients who sought medical care.[8] Also, EMTALA does not provide primary care and ongoing health maintenance for the underinsured and uninsured. However, the existence of this law proves the desire for universal access to emergency care. While states do not provide insurance to travelers and undocumented immigrants, every person, regardless of legal status and citizenship, is covered under EMTALA for emergent care.[3] This fact emphasizes the US society's regard for urgent care and the belief that an individual's health is vital to community health.

Nursing, Allied Health, and Interprofessional Team Interventions

Physicians are often solely held accountable for providing an appropriate medical screening examination and correct documentation. However, 20% of EMTALA violations result from emergency department nurses; this can range from incorrect transfer documentation to innocent advice on where to get faster care. While nurses cannot be held liable under EMTALA, they are held accountable under their states' Nurse Practice Act, and they can also be named in medical malpractice lawsuits.[20][21]

Other hospital care staff, such as pharmacists and physical therapists, are unlikely and rare causes of EMTALA violations. However, all care staff should ensure every patient is getting appropriate care regardless of insurance status and ability to pay.