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Monday, July 31, 2017

From EMRs to EMTALA: Dorothy J. McNoble, MD, JD

Among my daily web surfing stops is the blog "Naked Capitalism," an always very busy, provocative, multi-contributor site established by acclaimed writer Yves Smith, whose book "Econned" is one of my favorites.

The focus at Naked Capitalism goes mostly to "FIRE Sector" (Finance, Insurance, & Real Estate) topics and issues. I resonate with this stuff owing in part to my intense 2000 - 2005 period working in risk management in Subprime. See, e.g., my old posts 'Tranche Warfare" and "The Dukes of Moral Hazard."

Well, last week Naked Capitalism published two delightful posts by Dorothy J. McNoble MD, JD going to the health care space -- specifically a national policy topic and a post concerning the shortcomings of Health IT (EHRs specifically).

The first one discusses the EMTALA (Emergency Medical Treatment and Active Labor Act of 1986).
Healthcare Hypocrisy: How Politicians Hide Behind the 1986 EMTALA Law to Avoid Healthcare Reform
Dorothy J. McNoble, MD, JD

A 46 year old man comes to the hospital by ambulance for severe abdominal pain. He is diagnosed with a perforated ulcer and undergoes emergency surgery. He receives post-operative fluids, antibiotics, pain medication and ulcer medication. He recovers after five days and is discharged. He is unemployed, has no insurance and neither the hospitals nor the physicians receive any payment for his care.

This story of timely and appropriate emergency medical care delivered to patients unable to pay for it occurs tens of thousands of times a day in this country. Though physicians and hospital administrators might provide such services for moral or ethical reasons, it is unnecessary to rely upon the consciences of these providers since a law mandates that they provide care.

Specifically, The Emergency Medical Treatment and Active Labor Act (EMTALA), passed by Congress in 1986 unequivocally requires that hospitals provide emergency medical and surgical care and other ancillary services to patients requesting this care irrespective of their ability to pay.

This law, though rarely mentioned by name during discussions of existing and proposed health care policy or law, has a profound and pervasive impact on the delivery of health care in this country. In fact, there is no area of government or privately provided health care which is not affected by the provisions of EMTALA and by the current economic sequela of this law.

In particular, many of the provisions of the Affordable Care Act were designed to remove some of the burdens imposed by the EMTALA. If the ACA is repealed, the benefits and burdens of EMTALA will emerge as more important than ever. It’s therefore important to make an explicit examination of EMTALA. Medicare, Medicaid, the Affordable Care Act and even rules governing private insurance cannot be fully understand without acknowledging the existence of this long standing health care safety net.

The Origins of EMTALA
EMTALA was passed in 1986 and requires that patients needing emergency medical care not be discharged or transferred to another hospital until the patient has received a medical screening exam. If the patient is found to have a condition requiring urgent medical or surgical care, that patient must receive the care unless he or she consents to discharge or transfer to another facility. The patient must receive this care without regard to his insurance status or his ability to pay for the care.

The law is an unfunded mandate. That is, unlike Medicaid, Medicare and the Affordable Care Act which establish taxpayer subsidy for the health care provided, EMTALA mandates the delivery of care, but contains no provision for funding the care. The law, as will be discussed below, has been interpreted very broadly and, as a result, it has a significant financial impact on health care in this country.

Uncompensated care represents up to an estimated 6% of total hospital costs. This number does not include the costs borne by the physicians and other providers as opposed to the institutional hospital costs, so the 6% is an underestimate of the cost. The hospitals in urban and rural areas with large numbers of medically indigent patients assume a much greater proportion of this cost and since the law is silent on funding and contains no provisions for reimbursement, there is no mechanism for spreading the cost among hospitals in a region in order to better distribute the loss…

…the EMTALA mandate has evolved to require a fairly expansive definition of emergency care, and, it is therefore remains a very costly proposition, especially for inner city and poor rural hospitals. It is impossible to know what would happen if the EMTALA mandate disappeared tomorrow, but I can predict with confidence that there would be a significant decrease in the amount of unreimbursed care provided by hospitals.

Finally, as the debate on health care reform continues, one should consider whether EMTALA may actually be responsible for allowing politicians and lawmakers to skirt responsibility for coming up with reasonable legislation to fund health care, especially care for the medically indigent.

As long as EMTALA is in place, patients will continue to receive all emergency care and even a great deal of arguably non-emergency care. Patients with strokes, diverticulitis, broken bones and even fingernail infections will be seen and treated irrespective of financial status and without regard to the existence or absence of any program for funding that care. This uncoupling of guaranteed care from payment for that care shields lawmakers from the consequences which would follow if hospitals and providers could turn away uninsured and indigent patients.

EMTALA is, in fact, a “forme frust” of single payer healthcare for the indigent. That is EMTALA requires a broad and deep level of care be provided for all patients, but has no mechanism for private or public funding of that service.

Instead, in our bastardized single player plan, the costs of the care are borne exclusively by the doctors and hospitals providing the care with no attempt to provide a sensible risk spreading plan for the multi-billion dollar EMTALA program.

President Trump and Secretary Price have stated their commitment to reduce this type of cost-shifting in health care. For example, they support the elimination of individual and employer mandates would end the program whereby healthy individuals are required to buy insurance to subsidize the sicker patients.

If the current Administration is serious about elimination unfair cost shifting, it seems that elimination of EMTALA, which is one of the most unfair cost-shifting systems in health care, should also be eliminated. If it is unfair to require healthy patients to purchase insurance to fund the sicker patients, then surely it is unfair to require individual physicians and hospitals to bear the burden of care for the medically indigent.

However, if EMTALA were to be eliminated, and hospitals and physicians responded by eschewing any responsibility for providing uncompensated care, politicians would arguably be faced with the prospect of dealing with a citizenry awash in illness, disease and suffering. I think that lawmakers recognize that EMTALA stands between them and health care chaos, and, in spite of platitudes about a fair distribution of the costs of health care they, will never have the courage to repeal this unfair law and replace it with an honest, universally accessible system of health care.
Link in the title. These are fairly long-read posts. Highly recommend you read them in full, inclusive of the numerous comments beneath the articles. Naked Capitalism attracts an astute, eloquent readership of varied (and predominantly well-reasoned) opinions.

The second McNoble post goes to to the by now long-standing complaints about EHRs.
How Electronic Health Records Degrade Care and Endanger Patients

Yves here. We’ve featured posts from the Health Care Renewal site that regularly warn about how electronic health care records are a serious hazard to patient health. Yet we’ve regularly had readers refuse to believe that, despite warnings like the ECRI Institute putting health care information technology as its top risk in its 2014 Patient Safety Concerns for Large Health Care Organizations report, or the president of the Citizen’s Council for Health Freedom warning that “EHRs are endangering your life” or press reports like this:

Arthur Allen at POLITICO Pro eHealth says government-imposed EHRs are:

  • Driving doctors to distraction
  • Igniting nurse protests
  • Crushing hospitals under debt
“In short,” he writes, “the current generation of electronic health records has about as many fans in medicine as Barack Obama at a tea party convention.“

Some readers assume that anything must be better than hand-written and potentially difficult-to-read doctor notes. And the 50,000 foot explanation, that the systems are a huge and costly fail from a care perspective because they are designed primarily, if not entirely, for billing, seems insufficient.

This post will hopefully satisfy the skeptics by giving granular detail with real-world examples of how these electronic record systems distract doctors, regularly employ dangerous “check the box” approaches, produce voluminous and repetitive patient files that routinely go unread, give nurses contradictory instructions, and too often result in patients being given “care” that harms them.

One of my friends, the daughter of an MD who worked for the NIH and later a Big Pharma co, said she’d never go to a hospital without her own private duty nurse. That was before EHRs. Once you read this article, you’ll think twice about going to a hospital in the US without that sort of extra protection.

By Dorothy J. McNoble, MD, JD, who can be reached at

In a now iconic experiment, subjects are asked to sit in bleachers watching a basketball practice and count the passes among players on one of the teams. A few minutes into the experiment a man in a gorilla costume walks across the court. Fewer than 50% of the subjects notice him.

In a variant of the experiment, a man stops a stranger on a somewhat busy street to ask directions. While they are talking, two men carrying a large piece of plywood walk between the two men and when the plywood has passed, the original questioner has been switched to a different man. Again fewer than 50% of people notice the change.

Recently, I witnessed an “invisible gorilla” episode in the hospital. I took my neighbor to the hospital after she had fainted. She had low blood pressure and a slow pulse. The nurse examined and interviewed her, but spent most of the interview facing the computer and inputting data. A few minutes later, my friend was moved two beds down and exchanged places with another patient due to some equipment problems. When the nurse returned to check on my friend, she addressed her by the incorrect name and questioned her about the symptoms of the patient who had been there earlier. I corrected her and she checked the armband to confirm.

There can be no denying that emergency rooms are busy and the staff are often overwhelmed, but I think this demonstrates that the new “three way” which dominates patient interactions – the patient, the computer and the nurse or doctor, risks turning patients from the central focus of all interactions into the invisible gorilla.

Anyone who has tried to wade through their own hospital records or watched as a primary care physician tried to decipher the “data dump” which is supposed to summarize the events of a recent hospitalization, will recognize that the promise of the efficient, orderly modern electronic record is far from being realized. In theory, the computer based electronic record should be perfectly suited to its task. In recent decades health care, especially inpatient hospitalization, has become increasingly complex. There are many more participants, doctors, nurses, dieticians, consultants, occupational therapists, respiratory therapists, social workers and the interventions and therapies and medications administered during a hospitalization have also increased dramatically.

The electronic record, with its ability to prompt clinicians with reminders, organize large amounts of data and allow access from any point in the hospital and even remote locations, seems the perfect tool to create an organized, complete, flexible document free of errors and redundancy. The EHR as a working document during the hospitalization should be able to immediately reflect changes in the patient’s condition, accommodate instantaneous changes in medication and therapy, allow input from a host of clinicians and remain clear and comprehensible. After the patient discharge, the EHR should be an easy to understand narrative of the event of the patient’s hospitalization with the patient as the obvious central figure.

However, instead, the EHR has become an unreadable, unholy mess in which the patient is increasingly eclipsed. How did this happen? Was it due to limitations of software capacity? Insufficient funds devoted to the development of the EHR?

All of these problems undoubtedly contribute to the difficulty of developing the optimal EHR system. However, I believe that the main impediment to the creation a good EHR is not technical limitations or financial constraint. Rather it is due to the decision to utilize the EHR as a billing document. Many of the decisions about how to organize the medical record, how to format the document, and what data to include or exclude arise from the need to use the record as the support for and documentation of “billable events” during the hospital stay...


Feeding at the Trough
Healthcare is the largest single industry in the country and the source of the greatest job growth. However, the growth in clinical care positions are not responsible for most of this increase. Medical and nursing schools have at most a negligible increase in graduates, and ancillary clinical training, such as occupational therapists is also growing slowly.

A large part of the increase in participants in the healthcare industry is due to the dramatic increase in federal, state, and local health care bureaucrats as well as the increases in hospital administrators, auditors, plan administrators and other non-clinical participants. These government and administrative bureaucracies are theoretically in place to insure efficiency in the delivery of care and to monitor and insure patient safety. The security of their roles as integral to patient care is assured if they can require that their particular area of concern is a mandated part of the medical record. For example, there must now be documentation in the EHR about smoking cessation, potential for elder abuse, vaccination status, use of seat belts use of child safety seats and a variety of other issues. Although the inclusion of these global safety and care concerns is laudable, the medical record has become bloated with repetitive, inappropriately placed mandatory documentation of these often peripheral and distracting subjects...

Focus Fatigue and Limited Bandwidth
As discussed above, the structure of the EHR is designed to serve its purpose as a billing document, but makes it very challenging as a dynamic health care management tool during hospitalization or a concise, complete, well organized, non- redundant narrative after discharge. These structural features are a real impediment to clinicians trying to care for patients or understand what happened to patients after the fact.

There is an ample body of literature discussing the inefficiency and inaccuracy which results from multi-tasking. When doctors and nurses attempt to examine and obtain histories from patients while scrolling between various lists on the computer screen to be certain that all the billable bases are covered, it is clear that their ability to attend to the patient is compromised.

In addition, when the record itself is lengthy, repetitive and contains large amounts of prominently placed, but extraneous information, the clinician is likely to lack the mental stamina to wade through the document, switching between screens to find the relevant information. Moreover, the much touted “safety” features of the EHR are themselves often so ubiquitous and distracting that they lose their efficacy...
Again, this post is a thorough long-read, one airing the broad litany of complaints that those of us who have worked in Health IT are utterly familiar with. And, also again, I recommend you read the numerous comments. Notwithstanding the usual naysaying straw man and related red herring grips are many views that deserve our attention and respect. e.g.,

I retired in 2010 at age 69, after 44 years of practice. The final 3 years involved EHRs at both a large multi-specialty clinic and at a teaching hospital, though the clinic and hospital systems were mutually incompatible. The clinic system was particularly clunky, despite frequent upgrades that required relearning the system. The deal-breaker, as far as I was concerned, was that the complexity of the system and tsunami of drop-down boxes (see Dr. McNoble’s superb discussion above) which required me to face the computer and interact with it, while having an over-the-shoulder discussion with the patient. This was anathema to me. My decades-long practice style had been face-to-face positioning with maximum eye contact and body language that said, “You have my full attention.” How could any patient possibly trust me otherwise?

My response to this situation probably fell under the rubric of ‘civil disobedience’. I abandoned any attempt at real-time data entry and continued my career-long face-to-face style, scribbling brief paper notes as the encounter progressed. Between patients (or more likely at the end of the day) I would rush back to my office and do the computer data entry. Obviously everything took twice as long as before. (That’s an exaggeration. A factor of 1.4 to 1.5 is probably more realistic.) Obviously, my productivity plummeted. To their credit, the MBAs who had assumed the power positions in the organization let me be, though they could not have been happy with what I was doing.

Probably I got by with slow-walking the transition only because I was the senior member of the group and everyone knew the checkered flag could be seen from my windshield. Younger physicians and mid-level practitioners who tried that would probably have been tossed out on their respective ears.

This is not intended to be a diatribe against electronic health records in general. Nor is the word ‘data’ the plural of the word ‘anecdote’. I don’t claim that EHRs cannot work, only that I was unable to make them work. In spite of being reasonably tech-savvy for an old goat. Would that I could offer a quick and easy solution for this nettlesome situation, which has been so well documented by Yves, Dr. Noble, and multiple eloquent commenters. Or any solution. Sorry, I can’t. Perhaps someone much smarter than me can.

“In theory, there is no difference between theory and practice. In practice, there is.” Yogi Berra

Kudos to you, Yves, to Dr. McNoble and to NC’s unsurpassed commentariat.

apropos, recall my earlier post "Are structured data the enemy of health care quality?"
Also of relevance, "Clinical workflow, clinical cognition, and the Distracted Mind."

I'd like to have Dr. Jerome Carter's (EHR Science) take on this second McNoble post.
My own hands-on EHR experience has become increasingly dated. My personal Meaningful Use client caseload extended to 14 different EHR platforms -- all of them ambulatory systems (whereas Dr. McNoble's lament dwells on the inpatient environment, a significantly different, far more complex beast).

As far as UX goes, I can just personally observe that my experience the past few years (now simply as a patient and now again as a caregiver) has been pretty much "all Epic all the time" (with the exception of my radiation oncologist). I'm a patient in the John Muir system. Epic EHR. I had my prostate cancer 2nd opinion at Stanford Medical Center. Epic. My daughter is now a Kaiser cancer patient. Epic. She was evaluated for clinical trials at UCSF Medical Center. Epic. When I'm at these encounters, I always watch the clinicians' EHR interactions carefully. I think a lot of the complaints about EHRs are hyperbolic. The UX I repeatedly witness is thoroughly trained-up, fast, and efficient. None of which is to argue that it couldn't be better. QI is an endless process, not a goal.

And paper is not better, net. Not by a long shot. Neither for patients nor any other stakeholders.
BTW, Dr. McNoble has launched a blog over on the platform:
Welcome to Bad Medicine
Bad Medicine is intended to help patients obtain the best possible medical care and to best utilize their precious health care dollars. Sadly, there are many barriers which seemed designed to get between patients and good health care — hospital bureaucracies, insurance authorizations, physicians overcrowded schedules, incomprehensible electronic health records, lack of network providers. In this series of blogs I am going to try to address some of these problems and provide practical advice for obtaining the best and most thorough medical care…
I wish her well with this effort. Hope she gets traction.



From THCB:
Single-Payer is the American Way

As is customary for every administration in recent history, the Trump administration chose to impale itself on the national spear known as health care in America. The consequences so far are precisely as I expected, but one intriguing phenomenon is surprisingly beginning to emerge. People are starting to talk about single-payer. People who are not avowed socialists, people who benefit handsomely from the health care status quo seem to feel a need to address this four hundred pound gorilla, sitting patiently in a corner of our health care situation room. Why?...
Interesting. She voted for Trump. Self-avowed "Liberal to the left of Bernie." See her interesting earlier post on her own blog,"The Legend of Health Care."


In my inbox today from Scientific American:
First Human Embryos Edited in the U.S., Scientists Say
Reports suggest researchers have altered DNA and made few errors

In a step that some of the nation’s leading scientists have long warned against and that has never before been accomplished, biologists in Oregon have edited the DNA of viable human embryos efficiently and apparently with few mistakes, according to a report in Technology Review.

The experiment, using the revolutionary genome-editing technique CRISPR-Cas9, was led by Shoukhrat Mitalipov of Oregon Health & Science University. It went beyond previous experiments using CRISPR to alter the DNA of human embryos, all of which were conducted in China, in that it edited the genomes of many more embryos and targeted a gene associated with a significant human disease.

“This is the kind of research that is essential if we are to know if it’s possible to safely and precisely make corrections” in embryos’ DNA to repair disease-causing genes,” legal scholar and bioethicist R. Alta Charo of the University of Wisconsin, Madison, told STAT. “While there will be time for the public to decide if they want to get rid of regulatory obstacles to these studies, I do not find them inherently unethical.” Those regulatory barriers include a ban on using National Institutes of Health funding for experiments that use genome-editing technologies in human embryos.

The first experiment using CRISPR to alter the DNA of human embryos, in 2015, used embryos obtained from fertility clinics that had such serious genetic defects they could never have developed. In the new work, Technology Review reported, Mitalipov and his colleagues created human embryos using sperm donated by men with the genetic mutation that they planned to try to repair with CRISPR. The embryos are described as “clinical quality.”…
Wow. Things are moving quickly.

More to comes...

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