Abstract
The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal statute passed almost 30 years ago which was designed to ensure equal access to emergency treatment and to halt the practice of “patient dumping.” Patient dumping is a situation where some patients—typically uninsured, disabled, and minority individuals—receive inferior emergency medical care or are denied emergency medical treatment altogether. The goal of EMTALA is to ensure that everyone coming to the emergency room will receive equal care
Unfortunately, despite EMTALA, the practice of patient dumping has continued to this day. The most recent case in the news is the haunting story of a psychiatric hospital, Rawson-Neal in Las Vegas, that purportedly prematurely discharged patients and bussed them out of state. Starting in 2008, the facility allegedly bused nearly 1,500 patients out of state over several years. According to one major class action lawsuit filed in 2013, when patients were placed on a bus, they were given a small amount of food and medication for trips that sometimes lasted for days. They were then told to dial 911 or find a shelter upon their arrival in their new city. One of the allegations in the lawsuit is that hospital officials did not reach out to make arrangements for patient care at these new destinations prior to putting these patients on buses bound for new locations. The news media labeled this practice “Greyhound Therapy.”
This practice of patient dumping is of great concern to all patients, but particularly for those in our society who are the most vulnerable—children, many elders, and the physically and mentally disabled—as many of these individuals do not have the ability to engage in self-protection. Of particular concern is that the number of elders with mental disabilities, including dementia and Alzheimer’s, will be growing as our population ages.
The dated and flawed EMTALA statute needs to be modernized as it currently negatively impacts the quality and cost of healthcare without any positive trade-off for the equality of healthcare. In fact, there are four ways that EMTALA may actually be having an affirmatively negative impact on equality of care. First, EMTALA encourages the practice of customary treatment choices and discourages the transition to modern day, evidence-based treatment choices. Many customary care treatment choices lead to the provision of unequal, poor quality and costly care. Second, by encouraging customary treatment choices and discouraging the transition to evidence-based treatment choices, EMTALA works against the quality and equality improvement efforts of the Affordable Care Act, Medicare, and Medicaid, and other government programs. Most particularly, EMTALA discourages the adoption of written, evidence-based, emergency protocols that have significant life-saving potential and that ensure equality of care for all. Third, by promoting customary treatment choices, EMTALA perpetuates the use of bias and stereotypes in clinical decision-making. This problem is of particular concern in emergency care. Fourth, by relying on customary care as the exclusive proxy for equality of care, EMTALA renders itself ineffective as an anti-patient dumping tool by facilitating the wide use of procedural tactics to dismiss EMTALA cases before courts can reach the merits.
This Article will propose a very simple, two-step way to modernize EMTALA to deal with this cascade of problems. This solution converts EMTALA into a powerful tool to enhance equal access to healthcare while at the same time changing EMTALA so that it works in tandem with, instead of against, the efforts of the Affordable Care Act, Medicare and Medicaid to improve healthcare quality, cost and equal access.