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.

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.”

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.

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

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 [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.

• 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.

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.”

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.

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.

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.

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.

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.

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

• 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 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