What is Advocacy?

It is easy to dismiss advocacy as simply “politics” or efforts best left to lobbyists. However, as emergency physicians, you practice advocacy every day. Every time you stand up on behalf of a vulnerable patient, or struggle to obtain the resources you need to provide quality emergency care for your community you are acting as an advocate.

Unfortunately, the challenges that we must face in order to provide high quality care for our patients goes beyond our local emergency departments and hospitals. Laws such as EMTALA, HIPAA and the Affordable Care Act impact our practice on a daily basis. As emergency physicians, we must work together to insure that safe and high quality emergency care continues to be available to our patients – wherever and whenever we are needed!

What Are Some Examples of Legislative and Regulatory Issues?

Listed below are brief descriptions of important issues that both MOCEP and ACEP are working on. This list is not an all-inclusive list, but rather a brief background on more commonly discussed issues. Under the “Our Policies” page, you will find Missouri specific issues that have been debated and our stance.

Time Critical Diagnosis (TCD)

The time critical diagnosis system was meant to bring together the pre-hospital system and emergency departments in order to better integrate care for truly time dependent diseases: trauma, stroke, and myocardial infarction (STEMI). The system was designed and pushed through by emergency medicine physician Dr. Bill Jermyn, who also was a very accomplished EMS physician. The system designates hospitals as stroke, trauma, and cardiac centers. The idea being that when possible if there was a patient suffering from one of these disorders, the paramedics would bring the patient to a hospital capable of treating them or stabilize them at a nearby facility and then transfer them to a certified center.

As part of this, hospitals and therefore the physicians working there needed to meet certain requirements. From MOCEP’s perspective, maintaining board certification in Emergency Medicine should accomplish the continuing educational requirement. When the system was being designed, we did understand that certain physicians, generally higher up in the administration, might have more stringent CME requirements. We believe this is where things went wrong and legislation was misinterpreted.

Somehow the Department of Health and Human Services decided that all EM physicians would be required to have 10 hours annually in stroke, STEMI, and trauma. Once again, we do not believe that was the original intent of the legislation. In addition, thirty hours of CME on just these 3 disease processes would not leave EM physicians with time to review or update themselves on any other subjects. In essence, this requirement could actually make care worse. Missouri only requires 25 hours a year of CME for licensing. In addition, we also did not believe this was the best use of an EM providers time as there is generally not 30 hours worth of new material needing to be reviewed on these 3 topics every year.

As such, MOCEP attempted to discuss this with the Department of Health and Human Services numerous times. Each time we left the meeting feeling as if we made progress only to see nothing change. Last year we were successful in passing legislation that took TCD requirements out of the purview of the Department of Health and Human Services and placed them under the Board of Healing Arts. MOCEP is currently working with other organizations to develop regulations that make sense and are satisfactory to all those involved. Our goals to minimize CME requirements for board-certified physicians need to be balanced with making sure those physicians not certified in emergency medicine are receiving the proper amount of continuing education.

Medicaid

Q: Describe the typical Medicaid patient who visits the emergency department.
More than one-quarter (29 percent) of the 136 million visits to emergency departments (in 2009) had Medicaid or the State Children’s Health Insurance Program as the source of payment. Medicaid patients have similar visit rates as patients with other sources of payment, according to Centers for Disease Control and Prevention.

Medicaid patients are generally as sick as other patients are when they seek emergency care. The majority of these patients (ages 21 to 64) seek emergency care with the symptoms of urgent or more serious medical conditions, according to a report from the Center for Studying Health Systems Change. According to this report, many assessments of “unnecessary” use of emergency care incorrectly look at patients’ final diagnoses, instead of patients’ symptoms and why they are seeking emergency care. If a patient thinks they have broken their ankle but it turns out to be a bad sprain, they still made the right choice by seeking emergency care.

Q: How would cuts in Medicaid affect emergency care?
Private plans and some state Medicaid plans, in a shortsighted effort to save money, are denying coverage for emergency visits by setting unfair and unsafe thresholds. State Medicaid directors in Washington State, Tennessee, California, Florida, Illinois and elsewhere have tried or plan to deny coverage without providing alternative places for these patients to get medical care. The Governor of Washington State made the right decision by suspending the “Zero Tolerance Policy” that would have denied payments for treating Medicaid emergency patients, based on a list of 500 final diagnoses the state deemed to be non-urgent.

A recent survey found seven in 10 Americans oppose health plan efforts to deny payments for ER visits. Eighty-five percent of respondents with regular medical providers who sought emergency care said they could not have waited to see their regular providers.

Cuts would increase the burden on emergency departments, threatening their ability to meet the emergency care needs of everyone. Emergency departments are required by federal law to provide medical care regardless of whether a person can pay. Reductions would have a double impact on state Medicaid programs because they receive matching federal dollars. Many states have taken advantage of federal program waivers to change coverage and/or eligibility requirements in the wake of continuing state budget deficits.

Cuts could affect community health centers (CHCs), which derive more than one-third of their total revenue from Medicaid. This could reduce CHCs capacity in a given area and increase use of the emergency department for patients who have no other place to get care.

When other physicians refuse to accept Medicaid patients because reimbursements are so low, patients often have no choice but to turn to emergency departments for care, often after their illnesses become acute. Thirty-one percent of physicians polled by the National Center for Health Statistics expressed an unwillingness to take on new Medicaid patients, compared with 17 percent who didn’t want to accept new Medicare patients and 18 percent who said they weren’t going to accept new privately insured patients. The survey also found that “small practices and, to a certain extent, primary care physicians – had lower-than-average acceptance rates of new Medicaid patients.”

Q. Will cutting Medicaid access to emergency care save money in the long run?
Patients will continue to need health care, whether in the ER or somewhere else, and all health care has a cost.

Emergency medical care for all patients — insured and uninsured alike — is just 2 percent of all health care spending in the United States.

Q. How are health plans and state Medicaid offices determining when to deny coverage for emergency care vs. when to cover it?
Health plans and state Medicaid officials are denying coverage for emergency care, based on misleading results generated by a research tool not designed for that purpose. The tool, created by Professor John Billings of New York University’s Wagner School for Public Service was developed to evaluate the performance of the primary care system and to assess the effect of interventions to improve access to primary care services. It produces a probability estimate for a broad range of diagnoses as to whether patients visiting an emergency room with that diagnosis could have been treated in primary care setting or the condition was potentially preventable/avoidable with timely and effective ambulatory care.

In response to budget crises, state Medicaid officials in many states have been using the “Billings algorithm” to deny coverage for emergency department visits based on final diagnosis discharge codes, rather than the symptoms that brought the patients to the emergency department. For example, a patient with chest pain, a possible indicator of a heart attack, may be discharged with a diagnosis of heartburn, a non-urgent condition. It applies 20-20 hindsight to health care and in the ER that is bad medicine.

For more information: ACEP Medicaid Fact Sheet

Q. What the state is proposing: LANE vs. MMERP
Medicaid continues to be a hot button for the state and legislators. As one could guess, they are very interested in reducing costs. To this extent, the state proposed LANE. The thought behind this proposal was that the ED would triage out non-emergent patients. How this was to be done, however, was not stated; it would be up to the hospitals to decide. It was also unclear if this violated the prudent layperson standard or EMTALA, and if the state would use a final diagnosis to make the decision that the patient did not have an emergent diagnosis (and therefore would not pay us) retrospectively. For example after the emergency physicians determined that the chest pain was from reflux and not coronary artery disease, medicaid would refuse to pay as reflux is not an emergent condition. In addition, where do you send these people? Many come to the ED because they can’t get into a clinic or can’t get off of work during normal business hours. Just telling them to follow up somewhere did not seem to be practical. If patients are going to be diverted from the ED, we must have a place that they they can still receive timely and appropriate care. MOCEP relayed these concerns multiple times.

MOCEP does realize the importance in cutting costs. However, we want to do that in a manner that improves patient care and does not alienate patients. To that extent, MOCEP is working with other organizations on a proposal that would do just that called MMERP. It is aimed at the superutilizers. In essence, we would build a medical home for these patients where they could get the care that they need. To do this, EDs around the state would incorporate EDIE or a similar program. EDIE is a program that would automatically flag charts in the electronic health record. By simply clicking on an icon, the ED provider could see recent testing, notes, and medications for these patients. Instead of repeating large work-ups that had just been completed, the provider could make sure nothing new was occurring and then redirect the patient back to their established care plan. MMERP would save money by assisting physicians in foregoing large and expensive ED evaluations and getting these patients into a medical home which will improve their care. This proposal is still in the early stages but we believe it will improve care while making it more efficient. References to MMERP have already begun to replace LANE in the current budget.

EMTALA

We believe EMTALA is a good thing and believe most EM physicians are honored that they will treat any patient in need, something unique to our specialty. However, we also realize this puts us at substantial risk as often we are forced to make critical decisions on patients we have little to no pre-existing relationship with very little information. In addition, consultants are often hesitant to evaluate or treat our patients, as they do not want that extra risk which may come with minimal reimbursement. MOCEP is advocating for current legislation that would place all care delivered by emergency providers or their consultants under federal protection. Essentially, we would be treated just like providers at federal health care centers are treated if they are sued. We believe this would be good for us and our patients as it would better protect us and, hopefully, make it easier for us to get on-call providers to treat our patients.

Main Points
  • EMTALA [Emergency Medical Treatment and Labor Act] is a federal law that requires hospital emergency departments to medically screen every patient who seeks emergency care and to stabilize or transfer those with medical emergencies, regardless of health insurance status or ability to pay — this law has been an unfunded mandate since it was enacted in 1986.
  • America’s emergency departments are under severe stress, facing soaring demands; many have closed because of uncompensated care due in part to the unfunded EMTALA mandate.
  • Emergency physicians are dedicated to providing the highest quality emergency care to all.
  • Emergency departments are essential to every community and must have adequate resources.
  • ACEP advocates for recognition of uncompensated care as a practice expense for emergency physicians and for federal guidance in how fulfill the requirements of the EMTALA mandate in light of its significant burden on the nation’s emergency care system.
Q. What is EMTALA?
  • EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd). Its original intent and goals are consistent with the mission of ACEP and the public trust held by emergency physicians.
  • Originally referred to as the “anti-dumping” law, it was designed to prevent hospitals from refusing to see or transferring financially “undesirable” patients to public hospitals without, at a minimum, providing a medical screening examination and treatment to ensure they were stable for transfer. As a result, local and state governments began to abdicate responsibility for indigent care, shifting this public responsibility to all Medicare participating hospitals.
  • Hospitals and physicians violating EMTALA are subject to civil monetary penalties ($50,000 per violation) and threat of Medicare decertification. Between March, 2008 and May, 2012, there were 35 EMTALA violations that netted a little more than $3 million.
  • EMTALA has become the de facto national health care policy for the uninsured. It requires Medicare-participating hospitals with emergency departments to screen, stabilize and treat patients with emergency medical conditions in a non-discriminatory manner, regardless of ability to pay, insurance status, national origin, race, creed or color. Ninety-two percent of all hospitalizations for the uninsured are directly linked with an emergency department visit.
  • The Institute of Medicine in 2006 recommended that the U.S. Department of Health and Human Services adopt regulatory changes to EMTALA and the Health Insurance Portability and Accountability Act (HIPAA) so the original goals of the laws are preserved.
  • It remains to be seen how the implementation of health care reform may affect emergency departments and emergency patients. Evidence from Massachusetts indicates emergency visits will rise with increase in financial pressure due to cost saving measures imposed by health plans. EMTALA may have new found impact as the healthcare system adjusts to these new parameters.
Q. How does EMTALA define an emergency?
An emergency medical condition is defined as “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.”
Q. What is EMTALA’s scope?
EMTALA applies when an individual “comes to the emergency department.” A dedicated emergency department is defined as “licensed by the State . . . as an . . . emergency department” or “is held out to the public . . . as a place that provides care for emergency medical conditions.” This means that hospital-based outpatient clinics are not obligated under EMTALA unless they provide more than one-third of care as unscheduled AND those 1/3 visits are emergency medical conditions as defined by the statute. EMTALA applies to all aspects of emergency care, including specialists, all available tests and procedures, and anything else necessary to determine or stabilize an emergency medical condition.
Q. What are the provisions of EMTALA?
Hospitals have three main obligations under EMTALA:

  • 1. Any individual who comes and requests examination or treatment of a medical condition must receive a medical screening examination to determine whether an emergency medical condition exists. This cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments also must post signs that notify patients and visitors of their rights to a medical screening examination and stabilizing treatment.
  • 2. If an emergency medical condition exists, treatment must be provided until it is resolved or stabilized. If the hospital does not have the capability to stabilize the emergency medical condition, an “appropriate” transfer to another hospital must be done in accordance with the EMTALA provisions.
  • 3. Hospitals with specialized capabilities are obligated to accept transfers from hospitals who lack the capability to treat unstable emergency medical conditions.

Additionally, a hospital must report any time it has reason to believe it may have received an individual who has been transferred in an unstable condition in violation of EMTALA.

Q. What are the requirements for transferring patients under EMTALA?
EMTALA governs how unstable patients are transferred from one hospital to another. Under the law, a patient is considered stable for transfer if the treating physician determines that no material deterioration is reasonably likely to occur during or as a result of the transfer between facilities. EMTALA does not apply to the transfer of stable patients; however, if the patient is unstable, then the hospital may not transfer the patient unless: A physician certifies the medical benefits expected from the transfer outweigh the risks OR a patient makes a transfer request in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.

In addition, the transfer of unstable patients must be “appropriate” under the law, such that (1) the transferring hospital must provide ongoing care within it capability until transfer to minimize transfer risks, (2) provide copies of medical records, (3) must confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and (4) the transfer must be made with qualified personnel and appropriate medical equipment.

Q. What are the penalties for violating EMTALA?
Both CMS (hospitals) and the OIG (hospitals and physicians) have enforcement powers with regard to EMTALA violations. There is a 2-year statute of limitations for civil enforcement of any violation. Penalties may include:

  • Termination of the hospital or physician’s Medicare provider agreement.
  • Hospital fines up to $50,000 per violation ($25,000 for a hospital with fewer than 100 beds).
  • Physician fines $50,000 per violation, including on-call physicians.
  • The hospital may be sued for personal injury in civil court under a “private cause of action”

A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages.

An adverse outcome does not necessarily indicate there is an EMTALA violation; however, a violation can be cited even without an adverse outcome. There is no violation if a patient refuses examination &/or treatment unless there is evidence of coercion.

Q. Who pays for EMTALA-related medical care?
Ultimately we all do, although the greatest responsibility is on hospitals and emergency physicians who provide this health care safety net shouldering the financial burden of providing EMTALA related medical care.

Some health insurance plans retrospectively deny claims for emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). These practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety net.

ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

Q. Is EMTALA-related care the driver of rising health care costs?
Emergency care in America is just 2 percent ($47.3 billion) of all U.S. medical costs, and the emergency care costs of EMTALA [excludes hospital inpatient and other] have been estimated to be about $4.2 billion. EMTALA’s effect on the nation’s emergency care system itself is huge with direct costs for uncompensated care to physicians about $4.2 billion.

For more information: ACEP EMTALA Fact Sheet

Medical Liability Reform

MOCEP as part of a coalition was successful in having caps implemented. The coalition hoped this would lead to fewer lawsuits as the payout would be lower. Unfortunately, this was thrown-out by the Missouri Supreme Court. After many years, MOCEP was part of a coalition that got the caps reinstated. The current version of tort reform institutes a bilayer cap. Patients would still have access to economic damages as the caps were meant to curb outrages non-economic rewards. In addition to this, MOCEP lobbied for legislation that was recently passed that changed the standards that expert witnesses must meet to the federal standard. In essence, expert witnesses would have a higher bar to clear in order to be allowed to testify. This is one of many tort reforms being considered in 2017 by the Missouri legislature.

  • Between 1996 and 2001, the average liability award increased 107% (Jury Verdict Research, 2002)
  • The average jury award is $3.9 million. 54% of all awards were for $1 million or more (Jury Verdict Research, 2002)
  • On average, the cost of defending cases that physicians win is more than $90,000. (Physicians Insurers Association of America, 2003)
  • In 2002, medical liability insurers paid out more in claims than they received in premiums.  For every $1.00 received in premiums, they paid out $1.42 in claim costs. (AM Best Aggregates and Averages, 2003)
  • Median insurer premiums, adjusted for inflation, increased 55.86% between 1996-2002.  (NAIC)
  • Median insurer losses incurred increased 139% from 1996-2001 (NAIC)
  • 56% of Blue Cross/Blue Shield plans in crisis states report that physicians are leaving their practice, retiring or no longer performing higher risk procedures (Blue Cross/Blue Shield report, 2003)
  • 26% of health care facilities have reacted to the liability crisis by cutting back on services and/or eliminating some patient care units.  (American Hospital Association TrendWatch, 2002)
  • Medical liability costs add $60 to $108 billion to the cost of health care each year, diverting health care dollars away from direct patient care and research. (US Department of Health and Human Services, July 2002)
  • HHS also believes that excessive medical liability adds $47 billion annually to what the federal government pays for Medicare, Medicaid, SCHIP, VA health care and other government programs. (HHS Report: Confronting the New Health Care Crisis)
  • The current tort system is highly inefficient in compensating injured parties, returning less than 50 cents on the dollar to the people it’s designed to help. (“US Tort Costs” Tillinghast-Towers Perrin, December 2003)
  • A 2002 survey by Wirthlin Worldwide, Inc. showed that 72 percent of respondents, while favoring measures to allow full payment for lost wages and medical expenses in medical liability cases, support reasonable limits on “pain and suffering” awards. The same question has shown that 70% or more Americans have shared this view in 1992, 1995, 1999, and now 2000.
  • Approximately 80 percent of Americans favor a law to limit the percentage that a personal injury lawyer can receive as a fee from any settlement or award.
  • A study by Stephen Zuckerman et al. looked at several types of reforms and concluded that capping physician liability reduced premiums for general surgeons by 13% in the year following enactment of that reform and by 34% over the long term.  Premiums for general practitioners and OB/GYNs were impacted similarly. (Effects of Tort Reforms and Other Factors on Medical Malpractice Insurance Premiums)
  • In a different study by Kessler and McClellan, those researchers found “that malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications. (Do Doctors Practice Defensive Medicine)
  • The National Association of Insurance Commissioners states that while total premiums in the rest of the U.S. have risen 569%, California premiums have risen only 182% since 1976, after the passage of MICRA.
  • The Agency for Healthcare Research and Quality found that by 2000, states with damage caps averaged 12 percent more physicians per capita than states without damage caps.

For more information: Liability Reform Data to Support Reform and Rebut Opponent Arguments

Workforce

  • AAMC analysis confirms likely significant shortage in coming years across a broad range of specialties
  • Population growth, aging and medical advances are increasing demand
  • Aging of physicians and work patterns of younger physicians will limit growth of supply
  • Shortages are already apparent and competition for physicians is increasing
  • MD and DO 1st year enrollment will rise by nearly 6,000 per year between 2002 and 2013
  • GME is unlikely to keep pace. This will probably lead to a reduction in IMGs and limit the supply of physicians and a peaking of the physician to population ratio in the next few years
  • The recession is slowing the growing shortage but health care reform will increase it
  • Increasing physician supply has to be part of a mulch-faceted effort to assure access including increased use of non-physician clinicians and innovations in service delivery
What can be done?
  • Continue to increase medical school enrollment
  • Increase GME positions
  • Assure that we are using our physicians wisely and effectively
  • Increase use of teams including non-physician clinicians (This will require inter-disciplinary education and practice)
  • Improve efficiency and effectiveness, including through evidence based medicine, comparative effectiveness studies, improved IT and EMR
  • Design service delivery responsive to needs of younger and older physicians, such as flexible scheduling and part time work

ACEP Leadership and Advocacy Conference

Our commitment to our patients is no longer limited to the clinical skills we demonstrate in the emergency department. Due to the changing dynamics of health care, our profession requires stellar leadership as well as political effectiveness.

We all have a critical role to play in health care reform. Join emergency medicine leaders from throughout the country in shaping that future at ACEP’s Leadership and Advocacy Conference. Thought-provoking, inspiring and challenging sessions by nationally recognized speakers and key decision makers will provide you the inside information and skills you need to maximize your impact as an emergency medicine leader and advocate. This meeting is generally held each spring in Washington, DC.

ACEP will schedule Capitol Hill visits for you with key legislators and staff through Soapbox Consulting, LLC. You will not need to contact your legislators’ office directly regarding your appointments. The conference continues to grow each year and is considered by many to be the best conference that ACEP organizes. In addition to meeting with Senators and Representatives, multiple lectures update attendees on changes in healthcare impacting emergency medicine. In 2017, we had a record 18 physicians representing the state of Missouri.

Registration Fees & Conference Benefits
ACEP underwrites the majority of expenses for this conference and is very pleased to be able to provide it to ACEP members* for the nominal fee of $150, $40 for resident members, and $290 for SEMPA members.* Space is limited; advance registration is required.

In addition to an exemplary educational experience, your conference registration fee includes 3 breakfasts, 2 luncheons, 2 receptions, transportation to Capitol Hill for visits with your legislators, and daily breaks which include refreshments. The per-registrant cost of food and beverages alone is nearly $500, making these nominal fees an exceptional bargain and member benefit.

For more information on registration: Leadership and Advocacy Conference