The Ethics of Health Care Reform: Issues in Emergency - Medicine - An Information Paper

 Introduction  

Health care reform brings to the fore numerous important ethical issues.  The recently enacted Patient Protection and Affordable Care Act (PPACA) of 2010 has fueled ethical debate over several controversial topics.  This paper describes the basic provisions of the PPACA of 2010 and addresses important ethical issues of health care reform, including the moral foundations of reform, the American College of Emergency Physicians (ACEP) Code of Ethics as a guiding document, and health care reform’s likely effects on cost containment, public health, access to care, ED crowding, and end of life issues.

Basic Provisions of the Patient Protection and Affordable Care Act (PPACA) of 2010, P.L. 111-148/152    

The Patient Protection and Affordable Care Act (PPACA) is a federal statute signed into law along with its amendment, the Health Care and Education Reconciliation Act, by President Obama in March 2010.[i]  It is designed to take effect in stages over the next 8 years and includes reforms such as prohibiting insurers from denying coverage for pre-existing conditions, expanding Medicaid eligibility, subsidizing insurance premiums, and providing incentives for businesses to provide health care benefits.  It encourages states to create health insurance exchanges where uninsured adults or small businesses can buy insurance from a range of private insurers.  Large businesses will have to pay penalties for their employees who receive subsidized health insurance from insurance exchanges, but they are not required to provide insurance for their employees.   There is also a requirement for the individual purchase of health insurance, a subject of a major challenge to its constitutionality.  The PPACA also provides for the creation several bodies, including a National Prevention, Health Promotion and Public Health Council;  the Patient-Centered Outcomes Research Institute (created to conduct and fund comparative effectiveness research); and the Medicare Independent Payment Advisory Board (authorized to recommend Medicare spending reductions if Medicare spending increases too rapidly).   It extends coverage for children up to the age of 26 under their parents’ insurance even if they do not live with their parents and are not dependents.  Insurance companies will be prohibited from charging deductibles for most preventive care.  Insurance companies will no longer able to drop clients when they become ill.  The growth of Medicare provider reimbursements will be slowed to pay for some of the new expenditures proposed.  The Congressional Budget Office estimates that the number of uninsured persons will drop by 32 million people after all the provisions of the PPACA are in effect in 2019.  This will still leave 23 million people uncovered, including illegal immigrants and those who choose not to enroll in health insurance policies.  People who would be paying greater than 8% of their household incomes for health insurance would be exempt from the requirement to purchase insurance.  This has been projected to raise the proportion of insured non-elderly people (in the US legally) from 83% to 94%. [ii] 

 Moral Foundations of Health Care Reform  

The PPACA is widely acknowledged as the most significant piece of health care legislation since the establishment of Medicare and Medicaid almost a half century ago.[iii], [iv]  Perhaps because it is such a sweeping overhaul of the U.S. health care system, Congressional debate over the PPACA was both protracted and highly contentious. The election in November 2010 of many staunch opponents of “Obamacare” has made it very clear that the national debate over health care reform will continue and that the future of the PPACA is far from assured.[v] 

Why is reform of the US health care system such a controversial issue?  The policy debate is, of course, fueled in large measure by politicians’ desires to gain an advantage over their opponents.  Underlying the political differences, however, are important differences in moral beliefs and values.  To understand the moral dimensions of the health care reform debate, it is useful to begin by examining the fundamental goals of our health care system.

What do Americans, both as individuals and as a society, want and expect from our health care system?   We contend that four fundamental goals and desires have shaped the US health care system.  First, we desire high (or perhaps even the highest) quality care.  The reason for this desire is obvious—excellent care can provide the greatest health benefits.  For at least the past century, the United States has been a, if not the, world leader in expanding the frontiers of medicine and improving the quality of health care.  Second, we desire freedom of choice in health care.  That is, we want to decide when and where we receive care, what kind of care we get, and from whom we get care.  In other words, we want to retain control over our health care choices.

Third, we want our health care to be affordable.  If, both as individuals and as a society, we spend too much on health care, we won’t have enough resources left for all of the other things we need or want.   Fourth, we want our fellow citizens to share in the considerable benefits of health care.  We are unwilling to deny health care to other persons in need, and so we have established public health insurance programs to provide care to, among others, the elderly and the indigent.

We believe that these four general health system goals are all attractive and are very widely endorsed in the United States (and elsewhere).  At one time, when our health care options were much more limited and their costs were much lower, it may have seemed possible to achieve them all fully.  With the rapid and relentless growth of the US health care system over the past half century, however, it has become increasingly clear that these four fundamental goals are incompatible—that is, they cannot all be maximized at once.  So, satisfaction of one or more of the goals must be compromised to achieve the others.  But we still desire all four goals, and so we resent and resist the perceived erosion or neglect of any of them.   The persistence and intensity of the health care reform debate provides a clear demonstration of the extreme difficulty of striking an acceptable balance among these fundamental goals in the United States.

If these four health system goals are so widely embraced, however, observers might still question why US policy makers cannot seem to agree on how to structure and finance a health care system that provides an acceptable level of support for each goal.  The probable reason for this struggle to reach agreement is that beneath the widespread (and perhaps rather superficial) agreement on general health system goals lie significant differences in the relative priority Americans assign to the different goals.  Consider, for example, the fact that nearly all world’s other highly industrialized nations, including the nations of western Europe, Canada, Japan, and Australia, have health care systems that provide universal access to care for their citizens at a per capita cost significantly lower than in the United States.  Citizens of these societies typically accept significant responsibility for the material welfare of their fellow citizens, often expressed in continental Europe as a principle of solidarity.[vi]  These nations clearly place a high priority on the egalitarian goal of universal access to health care.  To finance their health care systems, these nations impose a variety of constraints on other goals.  For example, Germany and Japan require all citizens to obtain health insurance and all employers to contribute to insurance costs.  Canada prohibits the provision of private insurance for services covered by provincial health insurance plans.  The UK’s National Health Service restricts the adoption of high-cost therapeutic innovations.  To keep health care affordable, these nations also generally impose limits on providers’ fees and on drug prices.[vii] 

Appeals to compassion and mutual assistance also play a prominent role in the current US health reform debate; they support the PPACA provisions extending health insurance to an additional 32 million people.[viii]  In the American context, however, these appeals do not enjoy a clear priority over competing claims based on individual liberty, individual responsibility, and market capitalism.  The latter values are deeply rooted in the American tradition, and they figure prominently in the ongoing debate.   Consider, for example, the successful campaign against a “public option” for health insurance, and the continuing criticisms of the PPACA as a “government takeover” of health care, despite the fact that the private health insurance industry and the pharmaceutical industry will retain central roles in the reformed health care system.  Protecting the interests of private health care industries will also limit the government’s ability to impose cost control measures that keep the system affordable. 

The “death panel” controversy is an early example of the importance of individual liberty in the health reform debate.    Several politicians claimed that the PPACA would create death panels empowered to deny treatment to senior citizens.  Though these claims were quickly and thoroughly discredited, their appearance and persistence illustrate the fear of loss of individual control over health care decisions. A serious constitutional challenge to the PPACA is also grounded on claims for individual liberty: it asserts that requiring Americans to purchase health insurance exceeds the authority placed in the hands of Congress by the US Constitution.  If the PPACA individual mandate to purchase health insurance is overturned, and many Americans choose not to insure themselves, insurers may not be able to spread risks and costs across a large enough pool of subscribers, and the entire system may collapse.[ix]  Other nations, for example Canada and the United Kingdom, fund their national health care systems primarily through general taxation, but tax increases to subsidize expansion of the health care system would face substantial political opposition as an erosion of personal property rights.

In summary, we expect a great deal from our health care systems—more, in fact, than they can deliver.  Therefore, some compromise among several major health system goals is required.   Because we hold different views about which goals should take priority in cases of conflict, however, compromise solutions are difficult to achieve.

 ACEP Code of Ethics as a Guiding Document   

The ACEP Code of Ethics[x] serves as a guiding document to ensure the ethical delivery of emergency medical care.  The "Principles of Ethics for Emergency Physicians" (Table 1) summarizes the basic tenets of professional responsibilities of emergency physicians.   Evaluation of health care reform practices according to this Code of Ethics will provide guidance to ensure the ethical delivery of emergency medical care.  Emergency physicians have a special obligation to the fundamental goals of health care, including provision of high quality, affordable care to all emergency patients.  Principles 2 and 10 address the provision of and access to care for all patients, Principle 8 addresses maintaining a high quality of care, and Principle 9 addresses our responsibility for cost containment.

Table 1 

PRINCIPLES OF ETHICS FOR EMERGENCY PHYSICIANS 

The basic professional obligation of beneficent service to humanity is expressed in various physicians' oaths and codes of ethics. In addition to this general obligation, emergency physicians accept specific ethical obligations that arise out of the special features of emergency medical practice. The principles listed below express fundamental moral responsibilities of emergency physicians.

Emergency Physicians Shall: 

  1. Embrace patient welfare as their primary professional responsibility.
  2. Respond promptly and expertly, without prejudice or partiality, to the need for emergency medical care.
  3. Respect the rights and strive to protect the best interests of their patients, particularly the most vulnerable and those unable to make treatment choices due to diminished decision-making capacity.
  4. Communicate truthfully with patients and secure their informed consent for treatment, unless the urgency of the patient's condition demands an immediate response.
  5. Respect patient privacy and disclose confidential information only with consent of the patient or when required by an overriding duty such as the duty to protect others or to obey the law.
  6. Deal fairly and honestly with colleagues and take appropriate action to protect patients from health care providers who are impaired or incompetent, or who engage in fraud or deception.
  7. Work cooperatively with others who care for, and about, emergency patients.
  8. Engage in continuing study to maintain the knowledge and skills necessary to provide high quality care for emergency patients.
  9. Act as responsible stewards of the health care resources entrusted to them.
  10. Support societal efforts to improve public health and safety, reduce the effects of injury and illness, and secure access to emergency and other basic health care for all.

Cost Containment  

Controlling the cost of medical care is an essential element of health care reform.  Without adequate cost control measures, ensuring widespread access to care may become unsustainable.  The number of ED visits continues to rise at a rate greater than that of population growth, exemplified by an increase in ED visit rates from 352.8 to 390.5 per 1000 persons from 1997-2007.[xi]  Over this time period, ED utilization by Medicaid patients had the highest rate of growth. 

Currently, the United States is the world’s highest spender on health care per capita.[xii]  Americans enjoy many benefits from higher spending, including shorter wait times for procedures, easier access to primary and specialty care, and more advanced diagnostic and therapeutic technologies and pharmaceutical agents when compared to many other countries.  Ideally, Americans would like to see cost containment without reduction of services or quality.

Cost containment approaches should not compromise value in health care. [xiii],[xiv] Cost containment efforts should focus on reducing redundancy and waste, improving communications, improved data management, and improved delivery of excellent value in health care.[xv]  

Several cost containment strategies are addressed in the PPACA, including patient-centered medical homes, accountable care organizations, bundled payments, and programs to reduce readmissions and hospital-acquired conditions. 

Patient-centered medical homes should lead to better organization of outpatient care through a team-based approach.  An accountable care organization (ACO) is defined in the PPACA as an organization of health care providers that agrees to be accountable for the quality, cost, and overall care of Medicare patients for whom they provide the bulk of primary care services.[xvi]  ACOs have been suggested as a strategy to deliver integrated health care by promoting evidence-based medicine, reporting data about quality and cost of care, and coordinating health care.[xvii],[xviii]  ACOs may be contracted directly by payers, and may assume some financial risk for the costs of consultants, emergency care, and hospitalizations.  Widespread implementation of ACOs has several potential advantages and disadvantages.  Potential advantages include the rapid implementation of innovations in health care delivery, enhanced communications among providers, better management of chronic conditions, systems enhancements, and potential cost containment.  Potential disadvantages to the widespread use of ACOs include greater medicolegal risks to providers that participate, high cost of participation, and the possibility of patients being disqualified from these groups.[xix]   Many unanswered questions remain about the implementation of ACOs, including control of patient care, direction of information technology systems, and management of costs and savings.[xx] 

Billing practices have an impact on the cost of health care delivery.  Streamlined billing practices may result in significant cost savings.[xxi]  Bundled payments will potentially provide incentives for care delivery systems to reduce costs.  Readmissions reduction programs should motivate inpatient facilities to work with care coordinators to deliver more organized medical care.  Payments for care related to hospital-acquired conditions, such as nosocomial infections, will be reduced in the future, thus providing hospitals with additional incentives to develop methods to reduce hospital-acquired conditions.

Another potential approach for cost containment is to allow patients to share in cost savings in their accountable care organization.[xxii],[xxiii]  Examples of shared savings might include lower copayments or lower premiums.  One author suggests that because the cost of caring for a patient involves shared resources (including staff, facilities and equipment), shared resource costs must be attributed to individual patients based on actual resource use for their care.[xxiv]  Interestingly, however, one recent study showed that higher cost sharing did not influence prescription utilization among Medicare patients. [xxv] These data suggest that cost sharing may not necessarily result in cost containment.

Tort reform is an additional necessary component of cost containment.  Defensive medicine results in unnecessary diagnostic testing, hospitalizations, and therapeutic interventions.[xxvi]  President Obama recently stated during the State of the Union address on 1/25/11: “I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits." 

The primary ethical issue related to cost containment in health care is distributive justice.  The reality of limited resources necessitates their allocation to yield the greatest good for the greatest number of participants.  Finding the balance between provision of value in health care and cost containment remains a fundamental ethical challenge for health care reform.  Ultimately, unless we can find effective ways to contain the already high and steadily increasing costs of health care, it will become more and more difficult to provide care in the current or in a reformed health care system. 

Prevention and Public Health  

The PPACA includes several measures related to patient responsibility.  The most important is the requirement that every resident maintain health insurance coverage.  Most of the sections that affect patient responsibility act to empower the patient.  Aside from the much-publicized “tanning tax,” which was tacked on to the bill as a late replacement for a proposed 5% tax on cosmetic surgery, the bill does not do much in the way of negative incentives.  Punitive action for detrimental behavior is not necessarily effective, nor would it be ethical to single out for special penalties just a few of the many behaviors thought to have a negative effect on health.  So, instead of taxing harmful behaviors, the legislation promotes healthful behavior patterns and health awareness through various mechanisms:  increasing access to care, decreasing barriers to medications, providing education, funding programs for healthy living, and most important, funding preventive health care.  The PPACA is silent on many dangerous behaviors that can have negative health consequences, such as driving infractions, the cause of significant morbidity and mortality in the United States.

In many regards, the PPACA preserves control over health care while giving individuals better access to tools that would allow them to attain a healthier lifestyle.   The responsibility of compliance with guidelines for healthful behavior lies with the individual.  Improved access to care and personal relationships with physicians have been correlated with better compliance.[xxvii]  This is true even with physicians themselves.  In a JAMA study monitoring compliance with influenza immunization, house staff compliance was highly correlated with ease of access. When the immunizations were offered in the workplace, more house staff were vaccinated; by contrast, reminders such as memoranda, letters, and telephone calls were relatively ineffective.[xxviii]    So there is good reason to believe that improved access will lead to improved compliance. However, some critics argue that improved access to care may in fact promote unhealthful behaviors by compensating for people who behave irresponsibly. 

The Interface of Public Health and the Emergency Department 

Patients experiencing acute illness are likely to visit the Emergency Department (ED) due to barriers to primary care access.  A recent study found that less than half of all acute care visits in the United States are made to patients’ personal physicians, even if patients have a primary care physician.  The authors point to several possible reasons for lack of primary care physician availability, including the constraints of busy schedules that preclude same-day scheduling, the short time period allotted for patient visits, and the low number of primary care practices that see patients after hours.[xxix]   EDs have responded to these primary care constraints by offering preventive services.  A study from Stanford University Medical School found that 90 percent of EDs nationwide offer preventive care services. These results illustrate the conflict that EDs face between addressing underlying health problems that result in repeat visits while also preserving their mission of providing acute care.[xxx] 

With broader insurance coverage and improved access to primary and preventive care, the PPACA should in theory reduce the load on the ED; but this result is not a foregone conclusion.  As long as EDs’ doors are open to all patients, whether or not their conditions are emergent, much of the burden of responsible use of the ED falls on patients themselves.  The PPACA does not explicitly address this tension.

Summary of PPACA Sections Relevant to Patient Responsibility 

We review here a brief, non-exhaustive synopsis of representative sections related to patient responsibility:

Mandatory Insurance  

Sec. 1501, “Requirement to Maintain Minimum Essential Coverage,” mandates individuals be covered by health insurance and specifies a financial penalty to be assessed in the alternative.  The IRS will be responsible for enforcing this requirement.   This particular section has been subject to constitutional challenge in several states, and the issue will likely be decided by the US Supreme Court.

Access to Wellness Care  

Sec. 4103 extends Medicare coverage for annual wellness visits providing a personalized prevention plan to Medicare recipients that includes an individualized health risk assessment, including PMH, family history, vitals and BMI measures, and cognitive testing.  It also establishes a screening schedule for the following 5-10 years, and calls for health advice and referral for education, counseling services or programs for lifestyle interventions such as weight loss, physical activity, smoking cessation, fall prevention and nutrition.

Preventive Care  

Smoking cessation:

Sec. 4107 provides dedicated funding for smoking cessation in pregnant women.

Sec. 4108 provides funding for decreasing tobacco use, in addition to modification of the other leading risk factors for many chronic diseases, such as obesity, hypercholesterolemia, hypertension and diabetes.

Childhood obesity:

Sec. 4306 provides funding for childhood obesity projects.

Teenage pregnancy:

Sec. 2953 provides funding to support education of teenagers, with the focus on decreasing rates of teen pregnancy and “adulthood prep subjects” such as financial literacy, life skills, healthy marriage, and communication. Funding is also included for monitoring of programs to decrease teenage pregnancy.

Community Wellness:

Immunizations:

Sec. 4204 promotes immunizations by decreasing costs, providing reminders, educating, and even home visits.

Nutrition:

Sec. 4205 requires chain restaurants (20 or more) with regular menu items to post nutrition facts on the menu, including the drive-through menu.  This measure provides patients with the information needed to make responsible choices about diet.

Tanning Tax   

Sec. 10907 Formerly a tax on cosmetic surgery (Sec. 9017), this was changed to a 10% tax on indoor UV tanning services (Sec. 5000B), with the exclusion of medical UV treatment prescribed by physicians.

The tanning tax was one of the most publicized measures in the bill and was controversial.  Opponents suggest that UV exposure can help with psychiatric illness, such as seasonal affective disorder and depression.  And to the extent that psychiatric illness may affect an individual’s other health choices, less UV exposure in a select population may actually decrease patient compliance and personal responsibility.  Again, this scenario demonstrates the difficulty in isolating one behavior in relation to patient responsibility.

To summarize, the greatest impact of the PPACA will likely be the decrease in uninsured population, assuming the constitutionality of Sec. 1501 is upheld.  Besides this mandate, and the accompanying penalty for those who do not comply, many sections of the PPACA that address patient responsibility serve to provide positive incentives rather than negative. The tanning tax is a stark example of an effort to dissuade harmful behavior; but by and large, if the PPACA is going to change patient behavior, it is through eliminating barriers to access, and providing positive incentives to seek preventive care.  There is some doubt, though, whether the bill will reduce inappropriate use of the ED.  Much of the burden therefore rests upon the public to make sensible use of the resources created by the PPACA.

Impact of the PPACA on EDs and Access to Care   

The impact that the PPACA will have on access to health care remains uncertain, given the potential legislative changes that will be made by the 112th Congress to the bill.  As legal battles over the mandate for health insurance coverage will most likely be have to be resolved by the U.S. Supreme Court, a significant portion of the act’s foundation may require change.  A potential Supreme Court ruling removing the mandate would profoundly affect the PPACA, as it relies upon buy-in by the vast majority of Americans.  By placing nearly everyone in the insurance pool, there will be cost-sharing so that even those with chronic and pre-existing conditions will have affordable health insurance.

Assuming the mandate remains in the Act, the estimate from the Congressional Budget Office is that an additional 32 million Americans will have health insurance by 2019.   The question remains whether near-universal health insurance coverage will translate to better access to health care. As a model of potential influence upon the ED we utilize data from the Massachusetts experience with health care reform.

Before analyzing the likely consequences of the ACA on emergency departments, it is important to summarize what is known about emergency department visits, insurance coverage of patients, and cost burdens. Currently EMTALA provides the mandate (unfunded) for anyone presenting to an ED to have access to medical evaluation and emergent treatment regardless of ability to pay.  All visits to the ED are not emergent or urgent, however.  According to the recent National Ambulatory Medical Care Survey, 4.5% were triaged as needing immediate evaluation, 11.3% emergent, 38.5% urgent, and 29% semi-urgent or non-urgent (defined as needing to be seen within 1-2 hours or later).[xxxi]  

Deferral of care for non-urgent patients to receive care at another location is practiced at some institutions.  Advocates for deferral of care cite advantages that include improved ED performance through improved throughput times, decreased wait times, and decreased financial debt.  Other potential advantages of the deferral of care include the appropriate location for non-urgent care for non-urgent conditions, shorter wait times, and improved patient satisfaction.  Some believe that the ED is not the ideal health care resource for non-urgent or chronic conditions, and that patients receive better care at sites capable of managing these conditions in a timely, efficient, and ethical manner. Opponents of the practice of deferral of care cite negative ramifications, including delayed treatment of emergent medical conditions, increased medicolegal risk, and the inculcation of certain unethical practices related to patients’ ability to pay. 

Published literature has demonstrated conflicting conclusions regarding whether patients can be safely identified and refused ED care based on non-urgent presentations.  Some studies have demonstrated that select non-urgent patients can be safely triaged out of the ED.[xxxii] ,[xxxiii] ,[xxxiv]  However, other studies have demonstrated that triage criteria and predictive models are inadequate to identify patients who may be safely refused ED care.[xxxv],[xxxvi] 

ACEP’s policy on Medical Screening of Emergency Department Patients states that ACEP strongly opposes deferral of care for patients presenting to the ED.   Furthermore, ACEP believes that deferring care for patients presenting to the ED reflects a void in the health care system.  In situations in which it is required that patients be deferred, very specific and concrete standards must be adopted by the hospital to ensure patient access to an alternative setting and timely, appropriate treatment.

81-88% of patients seen in EDs have medical insurance, with a disproportionate number being covered by public insurance, such as Medicare/Medicaid plans that have lower reimbursement rates than private insurance.  The medical costs associated with treating the twelve to nineteen percent of patients without any health insurance are largely absorbed by the ED, as required by federal law. This financial squeeze has forced many emergency departments to close, and the remaining EDs must accommodate additional patients.   As a result, increased ED crowding contributes to longer wait times, decreased patient satisfaction, and concerns over patient safety resulting from manpower and space allocation issues.

In theory, the 32 million Americans who will receive first-time health insurance coverage under the ACA will no longer need to go to EDs to receive health care and will prefer to establish therapeutic relationships with primary care physicians.  In practice, however, many of these patients will continue to present to EDs, for several reasons.  Many may not be able to find primary care physicians willing to accept them as patients, either because their practices are already full or because they are unwilling to accept Medicaid's low reimbursement rates.  Therefore, access to emergency care is dependent not only upon the number of emergency departments that remain solvent, but also upon access to PCPs and urgent care centers that will accept and treat patients in a reasonable time frame, particularly those with lower paying insurance plans. Compounding the problem is that arranging PCP follow-up care from EDs is becoming increasingly difficult due to a range of factors. Ultimately the quality of health care then suffers.

The Massachusetts experience in 2006 can serve as an example of how the PPACA may affect emergency medical practice and departments.   In Massachusetts, there was no change in the non-emergent use of the ED; it remained 15%. However, absolute ED visits increased, echoing a national trend. Perhaps newly-insured persons were now seeking health care, and the ED served as an avenue into the system (given the difficulties with access to PCP-level care described above). According to data from the RAND long term insurance study, participants with cost sharing made fewer physician visits and had 20% fewer hospitalizations annually than those with “free” care.[xxxvii]  This was supported by the data from Massachusetts. Of the non-urgent visits to the ED, a disproportionate number were by patients with public health insurance because they had decreased access to PCPs relative to those with private insurance. 56% of the patients who had a PCP went to the ED with non-urgent complaints because they could not get an appointment with their doctor.  Of those reporting to the ED due to inadequate access to PCPs, there was a disproportionate representation of sicker, more disabled, chronically ill, and socioeconomically disadvantaged patients. Compounding this, the network of PCPs did not increase with increased numbers of insured patients, and 1 in 5 patients could not get in to see their physician when desired.  In other words, demand increased while supply remained static. In sum the PPACA, by increasing insurance coverage to individuals who in the past had none, and by not addressing the PCP shortage, will exacerbate the problem of ED overcrowding by an influx of 13 million newly publicly insured patients. [xxxviii]  

In summary, health insurance does not always guarantee access to adequate health care.  If the after-effects of the PPACA are similar to what transpired in Massachusetts, several ethical challenges are faced by emergency medicine as a profession. An increase of 32 million insured patients, without commensurate capacity in access to PCP networks in a timely fashion, will likely exacerbate ED crowding.    ED crowding remains a national problem that is already increasing in scope, given a decrease in EDs across the nation and the growing and more morbid patient population. The PPACA may further accelerate this problem. Emergency medicine groups and professional organizations have been advocating for a health care system response to ED overcrowding, as it is the result of system-wide problems of hospital bed capacity and urgency to place patients on wards, etc. While some gains have been made on this front, many challenges remain.

The question for the profession of emergency medicine is whether we more strongly advocate for a response to overcrowding from hospital and health care systems and local and national governments, an effort that has been met with limited success, or the profession takes the initiative to adopt creative solutions within the domain of EM. Specifically, do we alter our scope of practice and emergency department structures? Should the ED become a place where follow-up care and non-urgent visits are routine? Should we allocate additional resources to urgent care units within EDs?  Will the profession tolerate changes in the ethos and scope of ‘emergency’ medical practice? Should the profession advocate for more free-standing EDs that transfer patients to various regional inpatient hospitals when admission is needed and also meet the primary care needs of patients?

Further bolstering an expanded scope of care argument is the fact that racial and ethnic disparities may be increased by expanded health insurance coverage by the PPACA. Those who have difficulties in obtaining PCP care are often from disadvantaged backgrounds, and in Massachusetts health reform did exacerbate this health care disparity. Would expanding the scope of EM to include non-urgent care and specifically organizing EDs to meet this need help to reduce these disparities?

Tackling the challenges posed by the PPACA to emergency medicine will require a concerted effort and a carefully constructed plan of action. However, there are several things that emergency medicine physicians can do as a group that are non-controversial and relatively easy.  First, we should advocate for increasing the work force.  This includes increasing emergency medicine residency positions and advocating for increased funding for urgent care centers, clinics, and PCPs.  Equally important, we should advocate for adequate reimbursement, particularly in terms of an SGR fix to assure market value reimbursement for publicly insured patients.  This will help EDs remain solvent and allow for better access to PCPs, who will be more likely to accept those patients onto their panels.  The other issue is whether it is appropriate and good for patient care to accept primary care, psychiatry, and other services within the ED, where there is no realistic possibility for close follow-up.  Emergency medicine physicians will need to remain both vigilant and flexible in the coming months and years to solve the important problem of access for our patients. 

ED and Hospital Crowding  

ED crowding and long waits have plagued U.S. emergency departments for years before the latest economic recession hit, and well ahead of any partisan wrangling on Capitol Hill over health care reform by the 111th Congress. 

The annual number of ED visits has increased by 23% from 1997 to 2007, to 116.8 million annual ED visits (39.4 visits per 100 persons).[xxxix] Contemporaneously, 535 hospitals closed, 381 EDs folded operations, and available inpatient beds shrank by 134,000.[xl] Annual increases in ED visits in the United States are likely the result of US population increases (due to greater longevity and immigration), a rise in the number of undocumented, uninsured or underinsured persons, and the greater need to access care at hospital settings due to advanced technologies available only at hospitals.[xli] 

In retrospect, reports of ED crowding began to appear in the 1990s, soon after the Emergency Medical Treatment and Active Labor Act[xlii] (EMTALA) had been signed into law.  EMTALA requires Medicare-participating hospitals to provide a medical screening exam to all patients that come to the ED and stabilize those experiencing medical emergencies, regardless of ability to pay.[xliii]  Following this federal enactment, crowding has progressively worsened over the last decade, to the point that crowding in the ED has become an everyday reality.[xliv],[xlv],[xlvi],[xlvii]  

By 2006, a series of investigative reports published by the Institute of Medicine (IOM) provided evidence that America’s hospital-based emergency care system was crumbling under escalating burdens of oversubscription, limited funding, and a dearth of places to disposition its patients to, inside or outside of the hospital.  One of three reports,[xlviii] "Hospital-Based Emergency Care: At the Breaking Point," detailed the epidemic scale of crowding found in emergency department and trauma centers.  Furthermore, recent data from the Kaiser Commission on Medicaid and the Uninsured reports increased economic pressures in 2009 contributing to crowding, including rising numbers of uninsured individuals and the inability of the insured to afford rising out-of-pocket costs.  The experts who contributed to the report were left echoing the sentiment that the ED safety net was on the verge of collapse--overburdened by the sheer volume of patients, the complexities of crowding, and the fragmentation of care that has extended to the entire US health care system.[xlix]  

ACEP has long decried the crowded conditions of the nation’s EDs and has provided policy recommendations, commentaries and ethical analyses discussing the topic and its multifaceted nature.[l],[li] ACEP also led the way in developing and implementing the prudent layperson standard in 1993, a standard that is now part of the law in most states and in federal health insurance programs, covering an estimated 220 million Americans.  Further, several articles have been published with action plans to manage overcapacity and surge conditions. [lii],[liii],[liv]  Despite this practical awareness, ACEP chose not to align for or against the PPACA legislation.

Access to emergency services is a complex problem.  The ED is a subset of the world of the vast difficulties of access and capacity undermining the entire health care system.  An important purpose of the PPACA is to provide hospital and provider reimbursement for the medical care provided to the millions of uninsured and underinsured Americans patronizing the ED. This government payment will reduce the need of hospitals to cost shift to private insurers, which will free up capital and other resources to finance ED expansion projects.  The revenue stream is also envisioned to be adequate to support recruitment and retention of skilled providers in underserved areas.  Moreover, this reform will invest in community health centers and pay for primary care, to give patients options to receive non-urgent care and follow-up care in settings more appropriate than the ED.

Unfortunately, PPACA does not address the underlying issues that influence ED crowding. While the new health care law contains provisions that will benefit emergency patients, the implementation will occur through regulations that have yet to be established, and thus the effects of the PPACA remain unclear.

Many patients who have serious medical problems are best treated initially in the ED.  Language of the prudent layperson standard is carried through the PPACA sections regarding patients’ ability to self-determine the need for ED presentation. However, examining the patron mix of the nation’s ED patients has placed a political spotlight on the various utilization patterns and payer categories represented in the data, as emergency services total about 2% of the nation’s $2.1 trillion in health care expenditures.[lv]   In the future, as the system keeps closer tabs on the ED population and other ED initiatives (i.e., decreasing hospital readmission), there will be greater pressure to defer emergency care to other settings for non-urgent conditions.  In any case, EPs are dedicated to improving everyone’s access to emergency care, for there is baseline recognition that everyone is susceptible to the misfortune of a medical emergency. 

In summary, exactly how federal legislation such as EMTALA and now PPACA interact in the crowded landscape of the ED remains to be seen.  Emergency medicine has been responding to primary care constraints for years and offering both acute care and preventive services.  The President’s preliminary assertion, that increasing the numbers of primary care providers and providing health care insurance for nearly everyone lacking it will naturally redirect patients with minor complaints away from the ED, seems questionable. Early projections are for worsening of crowding in the ED as the newly insured seek care.  In ten years, when the positive downstream effects have a chance to catch up, there may be an easing of the total patient flow, permitting more rapid management of the remaining acutely ill patients from triage to treatment.  Unfortunately, it may prove more difficult to encourage a cultural change among patients who have developed several decades of reliance on convenient and local hospital-based ED resources.  Certainly the link between insurance availability and reducing ED visits has not been demonstrably forged.

Health Care Reform and End-of-life Care   

Improving the quality of end-of-life care is an essential aspect of health care reform.  End-of-life issues specifically affect ED care when patients present with end-of-life symptoms, with terminal conditions requiring palliative care, or in cardiac arrest.  Over 139,000 patients die in EDs annually (0.12% of ED visits).[lvi] Emergency care of patients near the end of life, and support for family and friends, presents unique challenges to emergency physicians.  Management of end-of-life symptoms, communication, establishing prognosis, advance directives, cultural sensitivity, attention to spiritual needs, and psychosocial support for patients and families are essential skills for emergency physicians. 

ACEP recognizes the importance of compassionate end-of-life care in the policy statement (Table 2), “Emergency physicians should respect the dying patient’s needs for care, comfort, and compassion”.[lvii]  

Table 2.  Ethical Issues at the End-of-life (ACEP Policy) 

To enhance EOL care in the Emergency Department, the American College of Emergency Physicians believes that emergency physicians should:

  • Respect the dying patient’s needs for care, comfort, and compassion.
  • Communicate promptly and appropriately with patients and their families about EOL care choices, avoiding medical jargon.
  • Elicit the patient’s goals for care before initiating treatment, recognizing that EOL care includes a broad range of therapeutic and palliative options.
  • Respect the wishes of dying patients, including those expressed in advance directives. Help surrogates to make EOL care choices for patients who lack decision-making capacity, based on the patient’s own preferences, values, and goals.
  • Encourage the presence of family and friends at the patient’s bedside near the end of life if desired by the patient.
  • Protect the privacy of patients and families near the end of life.
  • Promote liaisons with individuals and organizations  to help patients and families honor EOL cultural and religious traditions.
  • Develop skill at communicating sensitive information, including poor prognoses and the death of a loved one.
  • Comply with institutional policies regarding recovery of organs for transplantation.
  • Obtain informed consent from surrogates for postmortem procedures.

Stewardship of Resources at the End of Life   

Stewardship of resources devoted to end of life care is an important ethical consideration of health care reform.  The appropriate use of technologic capabilities can be lifesaving, or may simply prolong the inevitable end of life.  Many disagree about the role of legislation in the determination of the appropriate allocation of resources for end of life care. 

Many agree that decisions regarding allocation of resources should usually not be made for individual patients at the bedside.  Individual patient treatment plans should be based on patient preferences, scientific evidence of prognosis, and weighted analysis of the risks and benefits of proposed medical treatments.  

Some providers and legislators advocate withholding unnecessary end of life interventions.   The term "futility," although still in common usage, is not a recommended term, due to inconsistencies in definition and interpretation.  Because of the continuing controversy over the precise meaning of the term “futility,” it may be preferable to refer instead to unnecessary interventions as medically "nonbeneficial," "ineffectual," or having a "low likelihood of success."  In individual cases there may be disagreement about the level of invasive and aggressive medical care at the end of life.  Such dilemmas may arise as a result of inadequate or ineffective communication among physician, patient, and family.[lviii] Thus, when a difference of opinion exists about the proposed medical intervention, first steps toward resolution should include improved communication, education, and joint decision-making.  Ultimately, treatment decisions should be made in the context of well-established data, patient and family wishes, and professional judgment.[lix]   If specific interventions or therapies are withheld, for any reason, the health care team should continue to provide compassionate and attentive medical care for the patient.

Advance Care Planning   

Improved communication of patient wishes for medical care at the end of life can be an important aspect of compassionate medical care.  Health care reform should support and honor advance communications of patient wishes.  Advance directives such as the Do Not Resuscitate (DNR) order, living will, and durable power of attorney for health care can be effective communication tools to express individual patient wishes.  Most states have passed legislation to recognize DNR orders.  Many patients have strong personal preferences regarding end of life care.  In the absence of advance directives, providers and families often are unable  accurately to state the patient’s end-of-life wishes.[lx],[lxi],[lxii]   Although advance directives can be helpful when they exist, there are significant challenges to their universal application, including inaccurate public beliefs, low rates of completion, and lack of understanding of implications. [lxiii],[lxiv],[lxv],[lxvi],[lxvii]  

Ethical and compassionate health care reform should empower patients and families to determine their own goals and objectives of medical therapy, and should assist patients with education and tools to create and utilize advance directives.  Most Americans will oppose government determination of the stewardship of end of life resources.

An originally proposed portion of health care reform would have allowed Medicare funding of advance directive discussions.  Section 1233 passed in the House of Representatives in November of 2009 but was not included in the final version. This provision was inserted in Medicare Guideline 12/3/10 but dropped in January 2011.

This proposed legislation drew stark controversy over whether this might promote the unbridled use of “death panels” and the inappropriate diversion of resources from desired and appropriate end-of-life care.  However, this concern is unfounded.  Previous studies have demonstrated that advance directive discussions are not associated with hastened death,[lxviii] and that advance directives are strongly associated with care that best meets patients’ wishes.[lxix]  Proactive personal planning for end-of-life care is an essential component of comprehensive health care reform.[lxx] Health care reform provisions, including the possible future adoption by law or regulation of funding for advance care planning consultations, demonstrating the value of expert symptom management in parallel with standard therapies and improving pain management, would enhance ethical care by promoting patient autonomy and well-being, avoiding harm, and matching resources with patients’ goals for medical therapy.  

Conclusions  

Ethical reform of health care necessitates addressing numerous important ethical and moral issues.  The recently enacted Affordable Care Act (PPACA) of 2010 has fueled ethical debate of several important controversial topics.  Ethical issues of health care reform include moral foundations, cost containment, public health, access to care, ED crowding, and end-of-life issues.  These issues are of paramount importance to the efficient and compassionate practice of emergency medicine.  

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