Presentation

Quixotic• Quixotic: “Caught up in the romance ofnoble deeds and the pursuit ofunreachable goals; idealistic withoutregard to practicality.”• Enterprise: “An undertaking, especiallyone of some scope, complication, andrisk.”

Triple disclaimer• Everything presented today representsneither:– The position of the University of California,– The position of the EMTALA—TAG, nor– Even necessarily my own opinions

Topics• What is EMTALA?• The EMTALA Technical Advisory Group:composition, mandate, and work plan• A few modest proposals for fixing thismess• Unintended consequences and otherhurdles to reform• Audience participation is stronglyencouraged

What is EMTALA supposed tobe?• Non-discrimination– Definitely• Increased access to care– Sort of– People responding to non-discriminationattempt by reducing their availability in adiscriminating manner (avoiding less-lucrativetypes of patients)• Selective decredentialing• Avoiding ED call• Avoiding hospitals with EDs

And now, a quiz

Question 2• EMTALA requires that a hospital withspecialized capabilities or facilities butwithout an ED must accept appropriateEMTALA transfers.–True–False

Question 3• If a hospital has stabilized a patient’semergency medical condition in the EDbut is unable to provide definitivetreatment, EMTALA applies to the transfer.–True–False

EMTALA TAG representationpublic 1hospitalspatients2private hospitals3regulators6practicing physicians7

Mandate• Review EMTALA regulations• Solicit comments and recommendations fromhospitals, physicians, and the public regardingimplementation• May provide advice and recommendations to theSecretary concerning these regulations and theirapplication• May disseminate information concerning theapplication of these regulations to hospitals,physicians, and the public

Work plan• Subcommittees: on-call, framework, action• On-call: physician on-call issues• Framework: issues affecting EMTALA butbeyond scope of the TAG– Liability– Reimbursement– Capacity (workforce and beds)– Health care disparities• Action: everything else

A modest proposal• Fund it!

Degrees of difficulty• Easy: guidance• Middling: Interpretive guidelines• Harder: regulation• Very hard: law

Basic need•Data

Approved proposals• Hospitals with specialized capabilitiesshould have an obligation to acceptappropriate EMTALA transfers even if theydo not have an Emergency Department– This does not contradict regulation orinterpretive guidelines• Note that hospitals without an ED alreadyhave a responsibility to have an on-callroster—that is part of the provideragreement, not EMTALA

More approved proposals• Remove “A woman experiencingcontractions is in true labor unless aphysician certifies that, after a reasonabletime of observation, the woman is in falselabor.”• Move all references to a hospital’sresponsibility to maintain a call panel tothe provider agreement (42CFR489.20).

Rejected proposals• Specialty hospitals (all hospitals?) musthave emergency departments• All physicians must take call as a conditionof participation in Medicare

Ideas• Board certified physicians should have aminimum set of competencies– attack selective decredentialing• Define “specialized capabilities”• Better define on-call rules• Better define acceptable physicianresponse time

Ideas• Distance test• Repatriation• Ensure that EMTALA is not a “quality ofcare” law

Ideas• Audience contribution

Hospitals with specializedcapabilities• What are “specialized capabilities?”• Should there be geographic criteria forappropriate transfers?• Should the receiving hospital have any sayin the decision to transfer?• Should there be a repatriation requirementif the patient is found not to needspecialized care?

Hospitals with specializedcapabilities• “Specialty hospital” was defined for Stark.Should it have a role in EMTALA?• For diagnostic needs (e.g., “open MRI”),should the transfer be a temporary one?• What does it mean to have an on-call list ifyou don’t have an ED?

Unintended consequences• Require specialists on call to see anypatient– Stop taking call– Reduction in access to specialty care• Require call as a condition of staffprivileges– Become courtesy member or leave– Establish freestanding treatment centers• Make call requirements more flexible– Avoid call

Unintended consequences• Survey and cite hospitals — make themthe enforcers of physician behavior– Hospitals and medical staff become enemies

Why?• Law and financial incentives arediametrically opposed.• Unintended consequences areunavoidable.– Without funding, there is no great solution,only somewhat workable compromises

Contact information• rory.jaffe@ucop.edu• 510-987-9406• Rory Jaffe, MD MBAExecutive Director — Medical ServicesUniversity of California Office of thePresident1111 Franklin St Rm 11333Oakland, CA 94607-5201