Faculty Scholarship

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This Article will propose a very simple, two-step way to modernize EMTALA [Emergency Medical Treatment and Active Labor Act (1986)] 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.

This solution also works across systems to resolve the conflict between the tort, licensure and hospital peer review systems that all discourage evidence-based treatment choices by relying on custom as the exclusive proxy for quality, and the Affordable Care Act, Medicare and Medicaid, that all encourage evidence-based treatment choices.

Importantly, if this solution had been in place in 2008, the Rawson-Neal “Greyhound Therapy” scandal involving as many as 1,500 patients would have been avoided as written discharge planning guidelines would have been in place to prevent patient dumping.

This Article starts by explaining the difference between customary and evidence-based treatment choices and why customary care, as a general matter, can have a negative impact on healthcare equality, quality and cost. Then, a review is provided of the government programs that encourage physicians to make evidence-based treatment choices that significantly improve healthcare equality, quality and cost (programs created by the Affordable Care Act, Medicare, and Medicaid) and the legal systems that discourage evidence-based treatment choices (the tort, licensure and hospital peer review systems). This Article next explains how EMTALA joins other legal systems in discouraging evidence-based treatment choices, opens the door to bias and stereotyping in treatment choices, and fosters the overuse of procedural tactics to dismiss EMTALA cases.

Finally, this Article explains how EMTALA can be modified with two easy steps to resolve its current flaws and to harmonize it with the Affordable Care Act, Medicare and Medicaid, as well as with the tort, licensure and hospital peer review systems. These two steps will move disparity reduction efforts from the sole domain of EMTALA and the civil rights arena and into an alternative, but co-existing and complimentary, world of healthcare quality regulation. This move recognizes that the unequal provision of emergency care caused by uncertainty, subconscious bias or stereotyping can be looked at as another variety of human error that can be prevented with a systems approach. These modifications will also allow for the data collection necessary to facilitate the ongoing process of continuing quality improvement to tailor evidence-based treatment protocols on an ongoing basis to ensure that they are both furthering equal access and not inadvertently exacerbating disparities. Thus, a major benefit of this systems reform solution is the use of actual data to both track and create interventions to resolve actual disparities in emergency care. [excerpt]