Center News: Greater Newark Healthcare Coalition, Improving Care Through Collaboration

The Greater Newark Healthcare Coalition is now in its second year and continues to pursue cooperative projects to improve health care for the most vulnerable in the Greater Newark area. Professor John Jacobi serves as the Coalition’s board chair. Other members include a range of health providers, consumer groups, and government agencies. The projects include:

Case management of frequent utilizers of hospital emergency departments. These very fragile patients will benefit from a sophisticated evaluation of their needs and referral to appropriate community placements. Professor Jacobi and Research Fellow and Lecturer in Law Kate Greenwood are working with clinicians on this project, and will produce analysis supporting a reconfiguration of health care funding to both improve care and reduce costs.

Improved prenatal care. The Newark area has a disproportionate number of mothers with poor access to prenatal care.The Coalition is working to bring together various organizations to improve prenatal care.

Preparing physicians for new practice models. Accountable care organizations and patient- centered medical homes require the increased adoption of technology and physician practice patterns that mesh with demands for quality and efficiency. The Coalition will conduct training sessions for area physicians.

The Center’s faculty and students are engaged and committed to lending expert support to the Coalition through legislative and regulatory advocacy and policy development, believing that the fruits of health reform will reach the most vulnerable only if providers, advocates, and regulators work together in cities like Newark.

Center Works on Pilot to Improve Access to Critical Community Services in Newark, NJ

.The Greater Newark Healthcare Coalition is a new nonprofit comprising Newark’s hospitals, Federally Qualified Health Centers, primary physicians, and many community groups, as well as city and state government representatives, gathered to improve access to care for the region’s most vulnerable populations. Professor John Jacobi, Faculty Director of the Center for Health & Pharmaceutical Law & Policy and Dorothea Dix Professor of Health Law & Policy, serves as the Coalition’s board chair.  The Coalition has already spun off a Health Information Exchange, and is engaged in a number of exciting pilot projects.

One project will address the community care needs of very high utilizers of hospital emergency department services.  The Coalition plans to indentify an initial cohort of frequent users and provide them with intensive case management with the goal of matching them with appropriate, community-based services. This approach has been shown in other states to both improve the lives of frequent users and reduce unnecessary hospital visits.

Professor Jacobi and Research Fellow Kate Greenwood will analyze the role of existing laws and policies in either facilitating or frustrating the Coalition’s efforts. They hypothesize that while funding flows (relatively) freely to hospital emergency departments because of the legal entitlement to care in that setting, these funds will not readily follow frequent users as they seek community health and social services better suited to their needs.  They hope to assist state and regional policymakers and service providers in their efforts to reform the funding and delivery mechanisms to better meet the needs of this very vulnerable population.

Balancing Patient Demands and Physician Orders for Radiation Tests at the ER and Elsewhere

Photo by badjonni via Flickr

[Ed. Note: We are pleased to welcome Jennifer Jascoll to HRW. She is a second-year evening student at Seton Hall Law and a Research Assistant for the school’s Healthcare Compliance Certification Program.  She received her bachelor’s degree in Political Science from Bryn Mawr College and her master’s degree in Comparative Politics (Empire) from the London School of Economics and Political Science.]

Falling down stairs.  Hitting my head on a bowling ball.  Breaking my ankle and tearing two ligaments.  These are a few of the incidents that have landed me in the emergency room with a CT scan or an X-ray.  The AP has recently run four thought-provoking articles about the problems of balancing necessary and unnecessary tests administered during visits to the ER and elsewhere.

When should a person go to the ER? The American College of Emergency Physicians Foundation and other sources provide “tips” about the necessity of an ER visit when a person experiences symptoms such as:

• Difficulty breathing or shortness of breath
• Chest or upper abdominal pain or pressure lasting two minutes or more
• Loss of consciousness or sudden dizziness and weakness
• Confusion or changes in mental status

Fair enough.  The Foundation further advises patients to lower costs and “avoid unnecessary tests and procedures” by asking:

• Is this the best test or treatment?
• What are its costs, benefits, and risks?
• Are there alternative tests that are cheaper or less risky?
• Why do I need this test now, and what would happen if I don’t get it now?

Seems like common sense.  But just how many of us question the tests and procedures we undergo at the local ER?  Probably as many who think to ask whether our attending ER physician, in addition to the ER itself, is covered by our insurance.  After all, if a person is experiencing dizziness and confusion after hitting her head on a bowling ball, I doubt she will haggle over the necessity of a CT scan (or whether her attending physician is covered, which my father later tackled with the insurance company).

These tips may not get patients very far, however, as many ER physicians are said to overtest and overtreat for fear of malpractice lawsuits.  Lindsey Tanner, an AP reporter, writes that:

[t]he fear of missing something weighs heavily on every doctor’s mind.  But the stakes are highest in the ER, and that fear often leads to extra blood tests and imaging scans for what may be harmless chest pains, run-of-the-mill head bumps, and non-threatening stomachaches.

Maybe there shouldn’t be too much surprise here.  According to Dr. Angela Gardner, president of the American College of Emergency Physicians, ER physicians are among the 10 specialists most likely to be sued:

Our society puts more weight on technology than on physical exams….  In other words, why would you believe a doctor who only examines you when you can get an X-ray that can tell you something for sure?

Increased patient demand for imaging tests coupled with a concern that not placating that demand will create unhappy and litigious patients would also seem to play a role.

Overtesting doesn’t just apply to ER visits.  AP medical writer Marilynn Marchione reports a trend in this country favoring imaging tests over physical examinations, in particular the CT scan which requires radiation (as opposed to the ultrasound or the MRI which does not).  You can receive 10-20 millisieverts (measurement for radiation dose) from a single chest or abdominal CT scan.  Compare that number to the 2 millisieverts you receive from exposure to the sun and soil every year.  Have one or two CT scans in a year and you’re looking at 20-40 millisieverts or 10-20 times your annual exposure to natural background radiation.  (For a list of other comparisons, click here.)

Our citizens receive more medical radiation than those in any other country and no one — neither physicians nor patients — really seems to be keeping track of the dose accumulation.  At least for the moment.  Marchione writes that:

[d]octors don’t keep track of radiation given their patients — they order a test, not a dose.  Except for mammograms, there are no federal rules on radiation dose. Children and young women, who are most vulnerable to radiation harm, sometimes get too much at busy imaging centers that don’t adjust doses for each patient’s size.

That may soon change….  FDA officials [have] described steps in the works, including possibly requiring device makers to print the radiation dose on each X-ray or other image so patients and doctors can see how much was given.

The FDA also is pushing industry and doctors to set standard doses for common tests such as CT scans.

There are efforts to educate patients on the risk of side effects from unnecessary radiation exposure in order to curb demand.  AP medical writer Lauran Neergaard reports on a Minnesota health cooperative which displays national radiology guidelines in a patient’s electronic medical records whenever a physician orders a scan.  The guidelines help physicians deal with patient pressure and determine whether a radiation scan is necessary.  The cooperative estimates it prevented 20,000 unnecessary tests and saved $14 million through this process.  Archives of Internal Medicine, an American Medical Association journal, also started a “Less is More” feature which, according to editor Dr. Rita F. Redberg, offers articles “that document cases in which less health care results in better health and offer[s] commentary on the specific implications.”

Patients are advised to question the necessity of a radiation scan and physicians are advised to reconsider ordering one, but just how many will do so and what will it really take to get people to listen on a national scale?

CMS Regulations: In the Best Interest of Patient Care or the Industry?

By James Hlavenka

Photo by Badger 151

Suppose you are an uninsured individual who has been severely injured in a car accident.  After the accident, you are rushed to a hospital with a dedicated emergency room, subject to the requirements of the Emergency Medical Treatment and Active Labor Act of 1986 (”EMTALA”).  Upon being screened, the hospital learns that you need further, immediate treatment to be stabilized.  After admitting you as an inpatient for further stabilization purposes, the hospital discovers that you have severed a critical nerve in your spine.  The hospital is incapable of stabilizing your emergency medical condition and appropriately attempts to transfer you to an available specialty hospital two towns over that specializes in nerve repair.  Under EMTALA and the 2003 Centers for Medicare and Medicaid Services (”CMS”) regulations, there was no direct answer addressing whether the specialty hospital was required to accept your transfer from the original hospital and stabilize your emergency medical condition.

In 2008, CMS proposed rule 73 FR 23669 containing significant policy changes relating to the requirements of EMTALA to address the obligations of specialty hospitals.  Under the proposed 2008 CMS rule, the answer would have been clear: assuming the specialty hospital was subject to EMTALA, it must accept your transfer.  The proposed rule would have clarified the interaction of EMTALA’s transfer provisions with the 2003 CMS regulations that hold EMTALA obligations cease when an individual is admitted into a hospital as an inpatient.  The proposed 2008 CMS rule ensured that EMTALA’s primary purpose of patient stabilization under its transfer provisions would not be contravened by the 2003 CMS regulations.  After solicitation of comments on the proposed 2008 rule, however, CMS ultimately declined to adopt this critical policy clarification in its 2009 Final Rule, CMS-1390-F.

Background

In general, EMTALA imposes specific obligations on certain Medicare-participating hospitals to both screen and stabilize individuals who visit those hospitals’ emergency departments.  For a comprehensive, attorney-prepared EMTALA FAQ page, please click here. After a hospital screens an individual and determines that the individual has an emergency medical condition, it is obligated to provide that individual with necessary stabilizing treatment or provide an appropriate transfer to another medical facility that can achieve stabilization.

EMTALA’s transfer provisions are contained within the “specialized care” requirements of Section 1395dd(g).  Section 1395dd(g) requires a receiving hospital with specialized capabilities to accept a request to transfer an individual with an unstable emergency medical condition as long as the hospital has the capacity to treat that individual and regardless of whether the individual had been an inpatient at the admitting hospital.  These provisions would seem to answer the above hypothetical without the need for any further clarification.  In 2003, however, CMS muddied the answer with a new Final Rule.

In 2003, CMS published Final Rule 68 FR 53263 regarding the applicability of EMTALA requirements to inpatients.  The 2003 CMS rule amended section 489.24(d)(2)(i) of CMS regulations to state that a hospital’s obligations under EMTALA cease when the hospital admits an individual with an unstable emergency condition as an inpatient, so long as the admission is in good faith.  CMS reasserted that EMTALA was not intended to be a federal malpractice statute and that after admission inpatients are protected by State malpractice laws and Medicare Conditions of Participation (”CoPs”).  The 2003 CMS rule was entirely silent, however, as to how EMTALA’s specialized care requirements would continue to apply to inpatients, if EMTALA obligations cease upon admission.

As a result, in 2008, CMS proposed a rule amending Section 489.24(f) of the CMS regulations.  The amendment added a provision requiring a receiving hospital with “specialized capabilities or facilities” to accept an unstabilized inpatient with an emergency medical condition from an admitting hospital, thereby continuing the specialty hospital’s obligation under Section 1395dd(g) of EMTALA.  Thus, when the 2008 proposed CMS rule was analyzed in conjunction with the 2003 Final Rule, EMTALA obligations would not end for all hospitals once an individual is admitted as an inpatient.  Rather, EMTALA obligations would cease only at the hospital where the individual is first admitted as an inpatient.  EMTALA’s transfer provisions would continue to apply, however, to all other participating hospitals with higher levels of care, should an inpatient need to be transferred for stabilization of the original emergency medical condition.

2009 CMS Final Rule 1390-F

Upon review of solicited comments, CMS ultimately decided not to adopt the 2008 proposed rule clarifications in its 2009 Final Rule regarding transfer and inpatient care requirements under EMTALA.  Instead, in the 2009 Final Rule, CMS stated that under EMTALA individuals can only be appropriately transferred to another hospital for specialized stabilizing care where two requirements are met: (1) The individual must have an emergency medical condition that requires specialized stabilizing treatment not available at the hospital where the individual is first screened, and (2) The individual has not already been admitted as an inpatient.

Understandably, commenters disagreed about the possible effects of the proposed 2008 CMS rule.  Both opponents and proponents ultimately offered patient-centered rationales for their  policy perspectives.  When read in conjunction with EMTALA as a whole, however, those in favor of the proposed 2008 rule seem to have stayed most true to EMTALA’s original intent–to provide emergency care to all individuals who are determined to have an emergency medical condition.  The commenters’ statements below can be found within the final rule, here.

Opponents of the proposed 2008 CMS rule

The majority of the concerns raised by the dissenting commenters, which ultimately swayed CMS not to adopt the proposed 2008 rule, can be placed into three categories, each to be discussed in turn:

(1) Patient Dumping

Commenters highlighted the danger of patient dumping at hospitals with specialized facilities.  Of particular concern to one commenter was that a hospital, acting in bad faith, could choose to transfer only “medically complex patients requiring extensive lengths of stay, patients who are uninsured, and patients who have been subject to a medical error” and unresolved medical conditions.  Also of concern was that such transfers would be made as a “convenience measure and not a necessity.”  These particularly strong arguments were not overlooked by CMS when proposing the 2008 rule.  It is true that hospitals can act in bad faith, however such actions would violate both EMTALA and the CMS regulations.  Commenters also emphasized that allowing transfer of inpatients may allow hospitals to transfer unstable individuals before using all available resources in an attempt to stabilize the individual.  Again, while entirely possible, this argument is based in an assumption of bad faith, which in itself is a violation of EMTALA and medical ethics.

(2) Patient Care

Commenters expressed concern about how the proposed rule would affect patient health and safety.  Specifically, commenters were concerned that patients’ physical and psychological health could deteriorate as a result of the potential increase in inappropriate and unnecessary transfers mentioned above.  Commenters noted that referring hospitals may transfer patients who deteriorate following admission, thereby risking the life of the patient.  These arguments must raise concern, as any increase in danger to an individual already suffering an emergency medical condition is unwarranted.  These arguments do not seem overly persuasive, however, when read in conjunction with the safety measures already in place under EMTALA to ensure that transfers only occur when the benefit outweighs the risk to an individual.

(3) Futility

Commenters also asserted that the proposed 2008 rule was largely unnecessary for various reasons.  First, it was stated that it is unlikely that a hospital would knowingly admit an individual with an unstabilized emergency medical condition if the hospital did not have the capability to stabilize the individual.  This argument is not particularly strong.  While it is likely that a hospital would not knowingly do so, in daily practice errors can easily occur.  Therefore, there is no harm to ensuring that if such a mistake does occur, it will not adversely affect the suffering individual.  Along the same lines, a commenter stated that “all hospitals which have emergency departments are capable of evaluating an individual who presents to the emergency department and if the hospital does not have the capability to appropriately care for the individual, the hospital should transfer, rather than admit the individual.”  For the same reasons stated above, while a hospital may have the capability to do so, that does not mean that the hospital will make a correct decision every time.

Proponents of the proposed 2008 CMS rule

Commenters in favor of the proposed 2008 CMS rule focused upon the stabilization and safety of individuals suffering from emergency medical conditions.  Overall, commenters in favor of the proposed 2008 rule stated that the policy clarifications were in the best interests of patient care and should be implemented.  A particularly strong argument by one commenter was that inpatient admission status should be irrelevant in determining whether the individual has an emergency medical condition and whether the admitting hospital has the capability to provide the necessary care. The commenter noted that such requirements are “the only operative criteria to whether the transfer is justified under EMTALA” and as a result, EMTALA and CMS regulations must be read in harmony to achieve such a result.  The commenter stressed that EMTALA was enacted because “Congress recognized that patients needing transfers were being denied access to higher levels of care.”  This argument is very strong.  By failing to adopt the proposed 2008 rule clarifications, the will of Congress was hindered in part.

Of particular concern to other commenters were individuals who suffer emergency medical conditions in rural areas.  Such commenters stated that the proposed rule was “especially important for individuals living in rural areas because those individuals are routinely denied transfer to a regional facility for definitive care based on the conclusion that the individuals are already at a ‘hospital.’”  Given that much of our country is comprised of rural areas, such concerns should not have been minimized.  Last, a proponent addressed the concern of inappropriate transfers by suggesting that the clarified process could be adequately monitored for abuse and bad faith.  This suggestion is sound, as such monitoring is already required under the 2003 Final Rule regarding admission into hospitals to end EMTALA requirements.

Did CMS Get it Right?

CMS should have adopted the proposed 2008 rule.  Although finalizing the proposed 2008 rule may have resulted in an increase in inappropriate transfers to hospitals with specialized capabilities, arguments based on an assumption of bad faith should not outweigh the legitimate concerns voiced by many commenters.  Hypothetical risks of inappropriate transfers are always a possibility.  Regardless of whether an individual is admitted as an inpatient, both the admitting/transferring hospital and receiving hospital must comply with the stringent transfer requirements under EMTALA, namely, the requirements contained within 42 USC § 1395dd(c)(1), (2).  These provisions require a treating physician to certify that the medical benefits of the transfer to another medical facility will outweigh the increased risks to the individual.  Further, the receiving hospital must have both available space and qualified personnel for the treatment of the individual, and must have agreed to accept transfer of the individual and to provide the appropriate medical treatment.

As a result of these safeguards, the argument that individuals could suffer greater physical and psychological harm as a result of inappropriate transfers under the proposed rule equally falls flat.  If both hospitals follow the strict transfer requirements already contained within EMTALA, the risk of patient harm should be no greater or less than already present. Contrary to what CMS and industry commenters have stated, CMS has arguably increased the potential for individual physical and psychological harm by failing to adopt the proposed 2008 rule.

The primary concern of physicians within emergency departments should be focused on patient care, and not whether admitting that patient for crucial stabilizing treatment may extinguish the individual’s right under EMTALA to be transferred to an appropriate hospital.  Surely it is not always possible to give a thorough examination and attempt to stabilize a patient in the emergency room setting and thus, a hospital’s attempt to stabilize a patient through admission (even if ultimately futile because the hospital lacks the ability to do so) should not detrimentally extinguish the ability to appropriately transfer that individual under EMTALA.  As the rule currently stands, once a hospital decides to admit a patient for stabilization purposes, it automatically extinguishes its right to transfer that inpatient.  This right is extinguished even if the hospital later learns it is incapable of stabilizing a potentially life threatening emergency medical condition.

Commenters argue that a hospital should know whether or not it has the capacity to stabilize an individual prior to admission.  Theory, however, does not always equal practice.  In the fast paced, hectic setting of emergency rooms across the country, such accurate assessments may not always be possible for obvious reasons.  CMS was wrong to render this crucial transfer provision of EMTALA inoperable simply because of the technicality of inpatient admission.  Patient care and stabilization must be the focal point of this statute, and not a bright line test of patient admission and hospital liability.  CMS should reconsider harmonizing EMTALA’s original transfer provisions with its 2003 Final Rule regarding EMTALA requirements after inpatient admission.