Advisory of July 20, 2006 announcing the hearing

WITNESSES

Gail L. Warden, President Emeritus, Henry Ford Health System, Detroit, Michigan

Alan Kelly, Vice President and General Council, Scottsdale Healthcare, Scottsdale, Arizona

Alan Levine, President and Chief Executive Officer, North Broward Hospital District, Fort Lauderdale, Florida

Frederick C. Blum, M.D., President, American College of Emergency Physicians, Morgantown, West Virginia

Larry Bedard, M.D., Senior Partner, California Emergency Physicians, Emeryville, California

SUBMISSIONS FOR THE RECORD

American Academy of Pediatrics, statement

Rios, Elena, National Hispanic Medical Association, letter

Sanger, William, Emergency Medical Services Corporation, statement

U.S. House of Representatives,
Committee on Ways and Means,
Washington, DC.

The Subcommittee met, pursuant to notice, at 10:10 a.m., in room 1100, Longworth House Office Building, Hon. Nancy L. Johnson (Chairman of the Subcommittee), presiding.

[The advisory announcing the hearing follow:]

Chairman JOHNSON of CONNECTICUT.  Good morning. Mr. Stark will be here momentarily, and I'm going to start with my opening statement and hope that by the time I finish it, he'll be here.  He has been unavoidably delayed, but we're going to start. I'm very pleased to chair a hearing to consider the recent Institute of Medicine (IOM) report, "Hospital‑Based Emergency Care at the Breaking Point.'' We've all known this was coming.  We've all known it as we've visited hospitals and circulated in our districts, so I welcome this report. I think it will be very helpful to this Committee and to the Administration, and I do consider addressing the issues it raises as very high on our agenda and indeed, an emergency.

Emergency departments play a critical role in our health care system.  They're responsible for urgent care, lifesaving care, they act as a safety net for those with limited access to the health care system, and they're the first line of defense in a public health emergency and in a disaster. Yet today, emergency departments face unprecedented challenges, and without attention, I believe they will not be able to fulfill their responsibilities, and the institutions on which they rely and which they serve will be at risk. Each year, there are approximately 114 million visits to emergency departments.

According to the Institute of Medicine's recent report in 2002, almost half of all hospital admissions occurred through the emergency department. In addition to the critical role emergency departments play in the health care system, they are also required to comply with unique legal requirements. In 1986, Congress enacted Emergency Medical Treatment and Active Labor Act (EMTALA) (P.L. 99-272) to ensure public access to emergency services, regardless of ability to pay. Section 1867 of the Social Security Act (P.L. 108-173) imposes specific obligations on Medicare participating hospitals that offer emergency services to provide a medical screening exam when a request is made for examination or treatment for an emergency medical condition, including active labor, regardless of an individual's ability to pay.

Hospitals are then required to provide stabilizing treatment for patients with emergency medical conditions. If a hospital is unable to stabilize a patient within its capacity, or if a patient requests it, an appropriate transfer must be made. The IOM also found that, as the demand on emergency services has grown, the nature of how hospitals operate has also changed. Between 1993 and 2003, there was a net loss of 198,000 hospital beds in the United States. This, in part, has given rise to boarding, which occurs when admitted patients are required to stay in emergency departments either because of lack of in‑patient beds or because the in‑patient beds available are being reserved for patients not entering the hospital through the emergency room.

These patients may be cared for in settings that are far less than optimal and for significant lengths of times. Emergency departments are not equipped to board such patients, and it's not in the best interests of the patient, and it places great strain on the department. Perhaps the most tragic example of this are adolescents with psychiatric problems.  We should truly be ashamed of where we are with that particular group needing health care. Additionally, emergency departments are responsible for treating the whole spectrum of injuries and diseases and are therefore, required to be able to call a specialist at any time of day or night to ensure that patients receive optimal and appropriate care.

However, for a number of reasons, including increased malpractice premiums, the financial implications of caring for the uninsured, and the strain of being on call in addition to a full‑time physician, means most emergency departments are finding it very difficult to have sufficient on‑call physicians to care for their patients. As we will also hear, this situation has given rise to local and regional coordination efforts to raise the quality of care within the same resource base. Today, we'll first hear from Gail Warden, president emeritus of the Henry Ford Health System in Detroit, Michigan. I don't believe we will hear from her.  Is she here? Oh, Mr. Warden.  Sorry.

Mr. Warden will testify to the findings and recommendations of the Institute of Medicine's ongoing series of reports on emergency departments, pediatric care in emergency departments, and emergency medical services. Additionally, Alan Kelly, vice president and general counsel of Scottsdale Healthcare in Arizona, will speak to the challenges of providing emergency care to a population with a significant number of undocumented immigrants and the unique challenges hospitals face in caring for these individuals. Alan Levine is president and CEO of the North Broward Hospital District in Florida, which is one of the largest nonprofit public health care systems in the nation. Mr. Levine will also speak to the stresses being placed upon emergency departments, the complexity of the causes, and the need for state and regional flexibility to meet these challenges.

Finally, Dr. Frederick Blum, associate professor of emergency medicine, pediatrics, and internal medicine at West Virginia University School of Medicine, and president of American College of Emergency Physicians, and Larry Bedard, an emergency department physician, will provide the physician perspective on emergency department care in the United States. I look forward to hearing from all of the witnesses and thank you for being here today, but I would like to yield at this time a moment to my colleague from Arizona for the purposes of an introduction.

Mr. HAYWORTH.  Madam Chairman, thank you very much. As you mentioned, among the witnesses, and I would be remiss if I did not welcome all of our witnesses today to deal with the challenges confronting emergency care, but I am very pleased to have one of my constituents and friends, Alan Kelly, who serves as vice president and general counsel of Scottsdale Health Care in my home town of Scottsdale, Arizona. As one who has not taken advantage well, no, strike that.  Perhaps not personally, but with kids and athletic accidents, for purposes of full disclosure, we have availed ourselves of the emergency facilities at what we used to call Scottsdale North.  We've since changed the nomenclature.

I've seen firsthand the emergency care, and look forward to hearing Alan document the challenges that we are encountering in Arizona, and challenges that don't simply come to hospitals in border states with emergency care to illegal immigrants. So Alan, we welcome you, as we welcome all of the witnesses, and Madam Chairman, I thank you very much for the generosity of your time, and for holding this hearing today. I yield back.

Chairman JOHNSON of CONNECTICUT.  Thank you very much. We are going to proceed, and Mr. Stark will make some comments when he arrives.  He will be arriving momentarily. Mr. Warden.

STATEMENT OF GAIL L. WARDEN, PRESIDENT EMERITUS, HENRY FORD HEALTH SYSTEM, DETROIT, MICHIGAN

Mr. WARDEN.  Thank you, Madam Chair and members of the Subcommittee. My name is Gail Warden.  I'm the president emeritus of Henry Ford Health System in Detroit, Michigan, and was the chair of the Institute of Medicine's Committee on the Future of Emergency Care in the United States Health System. This Committee was formed in September of 2003 to examine the emergency care system, explore its strengths, limitations, and challenges to create a vision for the future of the system and to make recommendations to help the nation achieve that vision.

Over 40 national experts from fields including emergency care, trauma, pediatrics, health care administration, public health, and health services research participated as Members of the Committee or Subcommittee. The study was requested by Congress and funded through a congressional appropriation along with additional sponsorship from the Josiah Macy Foundation, the Department of Health and Human Services, and the Department of Transportation. In my brief time this morning, I'm going to basically focus on the findings and recommendations of the report as they relate to hospital‑based emergency care. As far as the findings are concerned, I think it's fair to say that beneath the surface, there's a growing crisis in emergency care.

Many emergency departments today are severely overcrowded with patients, many of whom are being held in the emergency department because of no in‑patient bed being available. When crowding reaches dangerous levels, hospital often divert ambulances to other facilities. In 2003 alone, U.S. hospitals diverted more than half a million ambulances, which is an average of one per minute.  Each diversion adds minutes to the time before a patient can be seen by a doctor and these delays may mean the difference between life and death for some patients. A second finding, which is important, which, Madam Chair, you mentioned in your opening statement, is it is becoming increasingly difficult for hospitals to find specialists who will agree to be on call.

The rising cost of uncompensated care, the fear of legal liability for performing risky procedures, and the disruptions of daily medical practice and home lives have led more surgical specialists to opt out on taking emergency department (ED) calls.  The resulting shortage of on‑call specialists in emergency departments can have a tragic result. Thirdly, today's emergency care system is often highly fragmented and variable.  Coordination of emergency care providers on the ground is often poor. Emergency medical services, hospitals, and public safety often lack common radio frequencies, much less interoperable communications systems, and these technological gaps are compounded by cultural gaps between public safety providers and emergency care personnel. The fourth important finding is that there's a lack of preparedness within the system to care for children.

We have recognized for decades that children require specialized care, and although children make up 27 percent of all visits to the emergency departments, a recent study found only 6 percent of the hospitals have all the supplies deemed essential for managing pediatric emergencies.  We believe the country can do better. As far as recommendations are concerned to improve the nation's emergency care system and deal with the growing demands placed upon it, the Committee described a vision of the emergency system that we would like to see, in which we talked about coordination, regionalization, and accountability: Coordination of all the components of the system, such as EMS, hospital emergency departments, trauma centers, local dispatchers working together; Regionalization so patients are taken to facilities that are best able to address the needs of each patient based upon their particular illness or injury; Accountability in that an emergency care system should be transparent and accountable to the public it serves and their preferences should be measured.

To achieve that vision, we recommended that Congress establish a demonstration program to promote that vision through an $8 million appropriation over five years for demonstrations in 10 states in each phase, Phase 1 and Phase 2. We recommended the establishment of a lead agency in the Department of Health and Human Services for emergency and trauma care, and asked that that lead agency establish a working group to consolidate the funding and functions. We also recommended that the Federal agencies establish evidence‑based categorization of systems' pre‑hospital protocols and indicators of system performance.

A second recommendation related to the fact that we felt we must end the practice of emergency department boarding and diversion except in the most extreme circumstances, such as community mass casualty events, and recommended that the tools developed from engineering and operation research and information technology that are available be applied in institutions ‑‑

Chairman JOHNSON of CONNECTICUT.  Mr. Warden, could I ask you to just start back? You've just gone on to recommendation number one.  So, if you would start back with your first recommendation, that would be useful.

Mr. WARDEN.  Back to describing the vision, ma'am?

Chairman JOHNSON of CONNECTICUT.  You may proceed.

Mr. WARDEN.  Okay. In the recommendations, there were four recommendations that I thought we should highlight today. The first was a vision that we establish, as it relates to what we thought the emergency system ought to be able to do in this country. We emphasized coordination among all components of the system; We emphasized regionalization, where patients are taken to facilities that are best able to address the needs for each patient based upon their particular illness or injury; Accountability, in that an emergency care system should be transparent and accountable to the public it serves, and their preferences should be measured.

To achieve that vision, we recommended that Congress establish a demonstration program to promote a regionalized, coordinated, and accountable emergency care system over five years. We also suggested that Congress should establish a lead agency in the Department of Health and Human Services for emergency and trauma care, and a working group should be brought together to consolidate functions of funding which are now in a multiple number of agencies. We also recommended that Federal agencies establish evidence‑based categorization of systems' pre‑hospital protocols and indicators of system performance.

The second recommendation was that we must end the practice of emergency department boarding and diversion except in most extreme circumstances, such as a community mass casualty event. We outlined in much detail about the tools that are available from engineering and operations research and information technology that would help to accomplish that. We also suggested that, since there are few financial incentives for hospitals to reduce crowding, that the Joint Commission should develop strong standards about emergency department crowding, boarding, and diversion. The third important recommendation was really related to increasing funding that could help improve the nation's emergency care system.  Much research is needed.

We also felt Congress should provide greater reimbursement to the large safety net hospitals and trauma centers that bear a disproportionate amount of the cost of taking care of uninsured patients and that there should be greater funding for disaster preparedness. Finally, as the various improvements are made to the nation's emergency care system, it will be important to keep pediatric patients in mind in all aspects of emergency care, because they have not gotten the attention that they should. In closing, the Committee believes that the nation's emergency care system is in serious peril. Strong measures must be taken by Congress, the state, hospitals, and others to achieve the level of response that Americans expect and deserve. Thank you for the opportunity to testify, and I'll be happy to answer any questions that the Subcommittee might have.

[The prepared statement of Ms. Warden follows:]

Chairman JOHNSON of CONNECTICUT.  Thank you very much, Mr. Warden.  Mr. Kelly.  I should have mentioned to begin with, your entire testimony will be included in the record.  You each have 5 minutes.  Mr. Kelly.

STATEMENT OF ALAN B. KELLY, VICE PRESIDENT AND GENERAL COUNSEL, SCOTTSDALE HEALTHCARE, SCOTTSDALE, ARIZONA

Mr. KELLY.  Good morning, Chairman, and Members of the Committee, and thank you for the find introduction, Congressman Hayworth. Again, my name is Alan Kelly.  I am vice president and general counsel for Scottsdale Healthcare.  I'm greatly honored to be here today. Scottsdale Healthcare is a three‑campus health care system located in Scottsdale, Arizona.  A full description of our hospitals is in the submission given to the Committee, but I would like to emphasize a few things.

Our Osborn facility is the only Level 1 trauma center for the Greater Eastern Phoenix area serving over 2.5 million people.  We provide over 51,000 emergency room visits with over 3,200 trauma cases. Our Shea facility provides over 50,000 ER visits, and our new Thompson Peak facility, which is expected to open in 2007, we expect around 20,000 ER visits. On the issue of overcrowding, this has existed many years in ERs, the origins I think being the increase in the number of uninsured and the EMTALA Act. Now, we have new pressures that I would like to focus this Committee's attention on, and if the Committee will indulge me, I am passionate about these two issues.

The first is the inflow and the influx of illegal immigrants which Section 1011 tries to address but really does not. An example can best be illustrated by telling you about a man with many names, and this is a story that recently actually transpired in our facility. This is a 63‑year‑old Hispanic male who came into our trauma center via ambulance on January 18th of this year.  He had sustained a laceration on the neck from a branch after falling from a tree, obviously picking fruit.  He also suffered a stroke. After being treated in our trauma unit, the patient was transferred from the ER into our intensive care unit.

As a result of the stroke, he had difficulty swallowing and the patient required a feeding tube. On January 31st, the patient was considered stabilized and ready for transfer to a skilled nursing facility, but as all of the members of this Committee know, no facility would accept him due to a lack of a payer source or place or origin. He was turned down from coverage from the Arizona Medicaid program, and the Social Security number found on his personal belongings was determined to be completely invalid. His employer's name was also found in his personal belongings. When contacted, however, the employer denied knowledge of his name.  The next day when we called, the phone number was disconnected.

The Mexican Consulate in Phoenix was contacted, but office staff requested information which is impossible for even us to get.  The Mexican Consulate is extremely difficult and little help in these matters. On January 24, 2006, the patient was transferred to a medical unit within our facility, and sitter care had to be maintained 24 hours, seven days per week, because the patient attempted to get out of bed multiple times. Our case management department continued to explore skilled nursing care facilities, but was able to make a transfer because of the payer issue.

The Scottsdale Police Department fingerprinted the patient for identification purposes, and I authorized the hiring of a private investigator to determine the patient's identification. The private investigator uncovered several police reports indicating that this patient had used at least 10 different names, had used at least 10 different date of birth, and at least six different Social Security numbers. The private investigator's final report also indicated that the patient had been arrested 10 times over three decades, released, and deported. The arrests included three felony convictions in this country, one for aggravated assault, and one for distribution of drugs.

The total investigator's report was finally faxed to the Mexican Consulate in Phoenix on April 17, 2006 of this year, and I think, Committee Members, they were basically shamed into finally giving us the necessary transport papers in order for us to get this patient back to Sonora, Mexico, at Scottsdale Healthcare's cost, of course. Scottsdale Healthcare incurred costs of over $260,000 for this patient's 93‑day length of stay and $4,000 for ambulance transport to Mexico. Our system additionally incurred expenses for the numerous hours and clinical staff, including case managers, legal.  A 93‑day stay speaks for itself.

Unfortunately, this is only one example of the massive challenge to treat and care for the undocumented crisis patients in this country, just not in border states. The second other biggest problem that I face on a weekly basis is the shortage of on‑call physicians, that my colleague has talked about. Scottsdale Healthcare spent over 13 million on stipends for surgical specialists to ensure their on‑call attention in 2005. Whatever the Committee's position is on specialty care providers, whatever it is, the fact is that physicians have many other alternatives to practice, the ER being the least, since this cohort of patients are typically high in uninsured and under‑insured.

We must, however, provide the coverage, as EMTALA requires, and therefore, have to pay handsomely for it. Now, I ask the Committee members, what physician, given the practice choices now available, want to cover at difficult hours with little or no chance of getting collected for insurance, and with the exposure of being sued, what physician would like to take that type of coverage? In conclusion, more than 46 percent of the patients who are admitted in Arizona hospitals are emergency department patients. The cascading impact of ever tightening regulations, the flood of undocumented immigrants, and the spiraling costs of providing specialty physician coverage is foreboding.  It is stressing a system that is already under considerable pressure.

Section 1011 is a blunt instrument.  Although well‑intended to help finance illegal alien health services, what we are really talking about is the distribution of expensive talent and existing resources to provide to our own citizens. Filling out the forms Section 11 requires, it is almost impossible. Committee Members, look at the form yourself.  Moreover, it turns our registration clerks into immigration officials. Members of this Subcommittee, 93‑day stays in an in‑patient setting is becoming more common, more common for illegal immigrants because of the special problems I have identified today, and therefore profoundly affects overcrowding throughout hospitals. Section 1011 does not solve our shared constitutional obligations to protect our borders.  It only seeks to help finance it, but it's not the answer to this problem.

Prompt action is necessary to avoid a health care catastrophe that will shut the doors of emergency departments nationwide and further stress scare in‑patient resources. Again, Chairman, it has been a pleasure to be here today, and I look forward to your questions. Thank you.

[The prepared statement of Mr. Kelly follows:]

Chairman JOHNSON of CONNECTICUT.  Thank you very much, Mr. Kelly. Mr. Levine.

STATEMENT OF ALAN LEVINE, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NORTH BROWARD HOSPITAL DISTRICT, FORT LAUDERDALE, FLORIDA

Mr. LEVINE.  Thank you, Madam Chair, Representative Stark, and Members of the Committee. I'm the president of the North Broward Hospital District, one of the largest non‑profit, public systems in the nation, located in Broward County, Florida. We consist of four hospitals, two trauma centers, the Chris Everett Children's Hospital, and we serve over 200,000 emergency department visits a year. I'm also formerly the secretary of health care administration for the State of Florida under Governor Bush. In Florida. the percentage of our population over 65 is nearly 40 percent higher than the national average and our over‑85 population is almost double the national average.

This offers a perspective of what America is going to look like in the coming decades and provides insight on how we should prepare. Consistent with national trends, emergency department visits to Florida's hospitals reached 7.2 million in 2004, up 50 percent from 1994, while in‑patient admissions grew 34 percent. Hospital capacity during this period has actually decreased, with the ratio of beds per 1,000 population decreasing from four in 1994 to three in 2005, again mirroring a national trend and those numbers don't include and swelling of tourists that we have during the season, as well.

This decreasing capacity was not an accident.  Federal and state policies implemented two decades ago were focused on cost containment, and hence capacity has been constrained. Indeed, the capacity constraints have helped the system become more cost effective, with hospital length of stay decreasing from an average of 10.2 days in 1981 to as low as four days today. On the issue of emergency department volume, however, growth in visits cannot be solely attributed to population growth, as the use rate per 1,000 increased from 348 visits in 1994 to 410 a couple years ago, thus demonstrating what could be the impact of an aging, more chronically ill, and also increasingly uninsured population.

The contributors to this crisis are numerous and complex and the capabilities of our system are being tested to a degree that could raise questions not only about our surge capacity in a mass emergency, but whether we can sustain the demand we face with our aging and more chronically ill population. From an operational standpoint, the more substantial causes for ER backup and unavailability of services are staffing shortages, substantial unavailability of call physician specialists, a less than optimal number of critical care and telemetry beds, the use of the emergency department as a safety net for routine or non‑emergent visits which hospital are required by Federal law under EMTALA to treat, and the increasing influence the uninsured are having on hospital operations.

Only a decade ago, the average age of a practicing nurse was 35, and today it's 45. Vacancy rates for telemetry nursing is 13 percent, critical care nurses are 10 percent, and one in five emergency nursing positions are vacant.  Florida alone will need 61,000 additional nurses by 2020, and this is a very relevant cause for this crisis. As the population has aged and become more chronic, the demand for critical care and telemetry beds has increased.  Clearly, an inability to staff these beds requires hospitals to keep patients boarded in the emergency department, or worse, to divert ambulances once the ER beds are full.

Sadly, less than 6 percent of the nursing population is male, and only 13 percent represent minorities.  I believe that represents a huge opportunity for us to draw new people into the nursing profession. This shortage does transcend other allied health care professions, including EMS, where in Florida, 61 percent of the more than 3.2 million EMS calls require transport to an emergency department. While new hospitals require regulatory approval in Florida, as in most states, Governor Bush approved allowing existing hospitals to add an unlimited number of beds without seeking state approval.

We can certainly build more hospital beds, but unless we can staff these beds, we only compound the shortage by creating additional capacity and demand for staffing, which will have the unintended consequence of increasing cost without any identifiable means for reimbursement. The issue of medical liability, an increase in non‑hospital alternatives for specialists, and an impending physician shortage overall are major contributors to this crisis. Imagine being a neurosurgeon at Broward General Medical Center in Fort Lauderdale. Every time you get called for an emergency, there is a 55 percent likelihood the patient is charity, uncompensated, or Medicaid, and since most of the community hospitals in Broward County and neighboring Palm Beach County, two of the most populous counties in Florida, do not have 24/7 emergency neurosurgery coverage, there is a good chance this patient's care has been delayed because he or she is being transferred from another hospital, perhaps one at least 30 miles away.

At what point as a physician, given the likelihood of litigation and a lack of payment, do you say that you've had enough? Many, if not a majority and by the way, there are many, many more issues related to the liability issue that we can talk about if you choose to ask. Many, if not a majority of the specialists have gone bare, and they've opted to limit their coverage only to low‑risk services within their specialty, often leaving many services without any coverage at all. In many cases, hospitals are paying enormous call fees in order to entice physicians to cover the emergency department, without any source of revenue to offset the cost, and are in fact left wondering if they will, at some point be accused of violating anti‑referral or kickback laws.

Federal EMTALA requirements leave hospitals with no choice but to succumb to whatever short‑term measures are necessary to cover call at any given time, whether or not these measures are even rational. Also, given the substantial opportunity for physicians to earn income outside the hospitals, their reliance on staff privileges and ER coverage has decreased for many subspecialties. Another problem on the horizon is the fact that one in four physicians in Florida is over the age of 65, and another 16 percent are between the ages of 55 and 65. Medical school enrollment combined with that fact, medical school enrollment has been flat for 10 years now, and new applications for 2005‑2006, while increasing by 4.6 percent, still remain 21 percent below 1995 levels.

The supply of practicing physicians is expected to slow considerably after 2010, reflecting the aging physician population and the level enrollment in medical schools. Intuitively, the demand for physicians will increase as our population ages, and by 2015, the rate of population growth will exceed the rate of growth in the number of physicians.  By 2020, it's estimated the United States will have a shortage of about 96,000 physicians. Many of the Institute of Medicine suggestions are plausible and merit our support. While I do not agree we need a new national bureaucracy, it is appropriate to have national standards with state flexibility, transparency using consistent measurement, a review of antitrust laws which would allow hospitals to regionalize call coverage, and enhanced use of information technology.

Addressing these issues and seeking resolutions to the other concerns I mentioned in my testimony I believe will move us towards a goal of an agile and prepared emergency system. I'm proud to come from Florida where we've demonstrated we have the best, in our opinion, emergency response system in the nation.  We're proud of that, but we know it's been tested, and we're concerned about that. We look forward to answering your questions, and I do thank you for this opportunity, Madam Chair.

[The prepared statement of Mr. Levine follows:]

Chairman JOHNSON of CONNECTICUT.  Thank you very much for your testimony, Mr. Levine.  Dr. Blum.

STATEMENT OF FREDERICK C. BLUM, M.D., ASSOCIATE PROFESSOR OF EMERGENCY MEDICINE, PEDIATRICS AND INTERNAL MEDICINE, WEST VIRGINIA UNIVERSITY SCHOOL OF MEDICINE AND PRESIDENT, AMERICAN COLLEGE OF EMERGENCY PHYSICIANS

Dr. BLUM.  Thank you, Madam Chairman. My name is Rick Blum.  I am the president of the American College of Emergency Physicians.  I'm a practicing emergency physician in West Virginia.  I'm here to deliver a simple message. Mr. Kelly asked the question, what physician, if given the options of practicing and treating the patients with the problems and in the setting that he described would take that option? Well, that would be me and the 24,000 people that I represent as the American College of Emergency Physicians.  We take that challenge every day.

You don't have to have money.  You don't have to be clean or smell good.  You don't even have to be nice to me.  You just have to come to the emergency department and need what I have to give, which is care.  I'm very proud of that. I'm here to deliver a really simple message today, which is that America's emergency departments are underfunded, they're understaffed, they're overcrowded, and in fact, they're overwhelmed.

I'm glad to address the issues raised by the Institute of Medicine Report, because they're an independent body that confirmed what we've been saying for a long time. Emergency physicians are proud of the fact that they could ramp up or ramp down as the circumstances allow.  We are traditionally the most elastic part of any hospital operation. Frankly, we're sometimes too good at it, because I think I get the impression that people think we have the infinite ability to ramp up and ramp down.

I'm here to tell you that anything that's elastic eventually reaches the point where it breaks, and when it does, it does to catastrophically, and that's where we are today. This Subcommittee has a long history of promoting quality health care for the citizens of the U.S.  Your leadership on EMTALA my associates welcome.  EMTALA simply put into law what we had long practiced and the values that we hold that I just described to you. The original intent of EMTALA we have not a single problem with, because we believe what is embodied within that law, but the challenges are still there.

It is a gigantic unfunded mandate for American health care, and it's an escalating mandate that has no end in sight, and that mandate is increasing in the face of overall declining reimbursement from all payers, both in the private and public sectors. As other parts of the health care system fail, those failures are felt in the emergency departments, and so the result is our departments are overcrowded, we have no surge capacity to deal with the next big thing that happens with regard to natural disasters or terrorist attacks.

We have an ambulance diverted in this country every minute of every hour of every day, and that probably under‑represents the problem, because many communities have said, "Well, we're not going to divert,'' but yet the ambulance crew will sometimes wait in the hallway of the emergency department for hours waiting for a bed to open up to offload their patient. Patients wait hours for admission.  There are millions of Americans that come to the emergency department, and we determine they need to be admitted to the hospital, who wait hours, if not days, to move upstairs to hospital beds that don't exist. There's a huge on‑call crisis that has already been, I think, very, very aptly described. None of this is new to emergency physicians. Why has this occurred? Well, we have reduced resources. Fifty percent of all emergency care in this country is now un-reimbursed.

We have a lack of in‑patient beds that's been described.  We've tried to control health care spending in this country by controlling the number of beds that we've had.  I think we now believe that that's a flawed public policy. We have a growing demand, and by the way, the baby boomers are still pretty healthy.  They're yet to get sick.  When they start getting sick in large numbers, I frankly don't know what we're going to do. We have a shortage of nurses and a looming shortage of physicians. We've already seen it in parts of the country, like Phoenix, but in most parts of the country, that is still a looming crisis, but I can tell you, the crisis we have right now is a shortage of nurses.  As was said, we can't staff the beds that we have, and we don't have enough beds. From 1993 to 2003, the number of ED visits have gone up 26 percent in this country.

At the same time, the population only went up 13 percent.  During that same period of time, 425 emergency departments in this country closed. So, we're seeing more and more patients in fewer and fewer emergency departments with less and less resources.  Ladies and gentlemen, that's not sustainable. The on‑call crisis we talked about already.  We did a study a while back with Johns Hopkins that showed that 73 percent of ED medical directors report regular lack of coverage in their on‑call panels. We have the surgeons who are talking about the fact that fewer and fewer specialty surgeons, like neurosurgeons and orthopedists, are now taking call to the emergency departments, so you have a smaller and smaller number of specialists caring for a larger and larger number of people again, not sustainable.

What can we do about all this? We have proposed several recommendations.  We have included at least three of them in a bill that we proposed and have asked for your support for. It's House Bill 3875, which includes three provisions. One would provide incentives for hospitals to move patients upstairs more quickly.  Those incentives currently do not exist. They would provide some professional liability protection for EMTALA‑mandated services that would basically treat our EMTALA mandate the way any other Federalized health care worker would be treated with regard to professional liability.

It would provide a 10 percent add‑on for Medicaid payments to the emergency department to acknowledge this gigantic unfunded mandate that we have. Every day we have the privilege of impacting and saving people's lives. I guess what I'm here to ask for today is your help in allowing us to do that, because, quite frankly, it's getting to the point where I cannot. Thank you.

[The prepared statement of Dr. Blum follows:]

Chairman JOHNSON of CONNECTICUT.  Thank you very much, Dr. Blum. Dr. Bedard.

STATEMENT OF LARRY BEDARD, M.D., SENIOR PARTNER, CALIFORNIA EMERGENCY PHYSICIANS, EMERYVILLE, CALIFORNIA

Dr. BEDARD.  Good morning, Madam Chair and Members of the Committee. I'm Dr. Larry Bedard.  I'm an emergency physician, a pit doctor. I really appreciate the opportunity to share with you my perspectives on the growing crisis facing the emergency care system in this country. I'm not going to talk about the problems.  I'm assuming that you agree that there are significant problems. I would like to congratulate Mr. Warden on the excellent report that came out from IOM.  I agree with virtually all of their findings.

What I would like to spend my time on is talking about some of the solutions. In my written testimony I submitted to you a copy of a "Top 10 List,'' "Dr. Bedard's Top 10 List,'' in order to try to deal with this crisis. First and foremost, I think we need to enforce EMTALA prospectively, not retrospectively.  I believe hospitals should be surveyed and certified that they meet and comply with the EMTALA rules and regulations. We've heard 75 percent of emergency department directors have a problem with on‑call physicians. Seventy‑five percent of these hospitals do not comply with EMTALA, yet the number of investigations and violations is only a handful.

There are many reasons why physicians are intimidated or reluctant to report or deal with this issue. Secondly, I think we need to have a different organization than Joint Commission on Accreditation of Healthcare Organizations (JCAHO) certifying hospitals or certifying the emergency care system. Last year, our hospital went through a JCAHO survey.  We passed with glowing colors. What happened is, the night before the surveyor showed up, we took all the gurneys and the patients we board and hid them elsewhere in the hospital. Immediately after the surveyors left, the gurneys were back in the hallways and patients were being boarded in our emergency department. The fact that 75 percent of ED directors have problems with on‑call, I'll guarantee you, every one of those medical directors practices at a hospital that JCAHO has certified.

It is obvious to me, and I think that the certification process is in effective as currently conducted by JCAHO. Number three, I agree that regionalization is one way of helping with the on‑call problems and you need to get the patient to the right hospital, to the right doctors, at the right time. However, in order to regionalize emergency care, I believe Congress is going to have to enact some antitrust legislation which would allow competing hospitals and health systems to get together to coordinate and regionalize care. Perhaps, my most controversial solution is the way I would reimburse physicians for serving on call.  I refer to it as the "play or pay system.''

Every physician in the United States who went to medical school here, who has done residency training in the United States has been heavily subsidized by the taxpayers. A common approach of professional associations, for example, the American College of Surgeons, says, "Gee, give us tax deductions or tax credits for the charity care that we provide.'' I believe before physicians are given tax credits or tax deductions, that they should pay back the debt to the taxpayers for our education. In order to do this, you would have to do two things: One, Centers for Medicare and Medicaid Services (CMS).  You do an actuarial study to determine the amount of taxpayer subsidy that went into physicians' education and training.

We then have CMS work with American Medical Association's Reimbursement Update Committee to set a value or in essence, a payment for what it's worth to be on call for 24 hours. Then physicians would have the opportunities, say over 20 years, to pay back their taxpayer subsidy by serving on call. If you were a neurosurgeon who was netting $500,000 a year, you might want to take the other option, which is to pay at the going rate, say $1,000, so you don't have to take call.  You could pay one of your other colleagues to provide that service for you. Six.  I think we do need to come up with some meaningful malpractice reform.  Physicians should not have to pay an extra premium for agreeing to serve on call.

I think the Congress also needs to support and incentivize hospitals to have information technology so we can coordinate, we can regionalize emergency care. I think the ultimate solution is Congress needs to create a system of universal basic health care for all citizens of the United States. I look forward to answering any of your questions.

[The prepared statement of Dr. Bedard follows:]

Chairman JOHNSON of CONNECTICUT.  Thank you. Now, I'd like to yield to Mr. Stark.

Mr. STARK.  Thank you, Madam Chair for holding this hearing, and I apologize for being late. Mr. Warden, I'm sorry I missed the beginning of your testimony. Had I been here on time to charm you with my opening remarks, Madam Chair, I would have reviewed the experience of a New York Times reporter in Washington, D.C. recently who died--was attacked, robbed on the street, mugged. They thought he was drunk, so there was a failure on the part of the first responders.

Then the ambulance driver took him to a hospital--well, took him to Howard, because it was closer to his home and he was going to go home after he dumped this guy off, when Sibley was much closer. Then he sat around in the emergency room because they said he was a drunk, and evidently had massive brain trauma.  A guy beat him up, hit him over the head.  He died. A lot of failures on a lot of people's part. I'm not sure that we don't have those same problems in every branch of medical care.

We can hear the horror stories all the time about the wrong the pharmacist giving you the wrong pill, somebody else cutting off the wrong leg, and I think that the emergency room physicians take a bad rap for a system that perhaps the population at large has failed to address. I think our entire medical care delivery system really is the fault.  You guys are a critical part of it. If we had universal coverage, a great portion, I suspect, of the work you do in the emergency room would be handled by nighttime pediatrics or a "doc in the box,'' or clinics that would get reimbursed for preventive care and treatment of minor aches and pains, whereas people today don't go, because they don't have the money.

They know if they go and take their kid with an earache to the doc in the box nighttime pediatrics it's going to cost them 65 or 70 bucks and their insurance may or may not cover it if they have insurance, and they ain't got $65 or $70 bucks, so they come and wait two or three hours in the emergency room for you to see the child and give them the antibiotics they need for their earache.

I do, as I would have suggested in my opening remarks, think that if we had a system where people could pay and high deductible insurance isn't going to be the answer. I would love to have the Institute of Medicine or the emergency room, Dr. Blum, your organization, tell us how many people show up with high deductible policies, but you guys hit them in the first $1,000 bucks, and they don't have the cash to get over that deductible amount, so you still end up treating them for free.  I'd be curious to know what percentage you see there.

Mr. Kelly, his description of the patients that come into Phoenix as Larry Bedard knows, you've just described nine out of 10 people who come to Highland Hospital in Alameda County, only they have a longer rap sheet than this poor guy from Mexico.  We treat them all the time.  We can only send them back to county jail. That's standard procedure in our neighborhood for the people coming to our emergency rooms, and I don't know --as that's any I can just tell you a story.

We have an emergency at a classroom, at an elementary school.  We have lockdown. It isn't a fire drill.  This is a gun drill.  You never heard of gun drills, but our teachers have learned when they heard a gunshot outside the elementary school, they put the kids under the desk, lock the doors, pull the blinds, and wait until the cops come. Two cars come to the intersection.  One guy gets out of the car, starts shooting at the other guy.  One guy gets shot up and gets hauled away.

The cops come.  They aren't going to chase the cars.  They're just going to wait for them at the emergency room.  They're going to show up at Dr. Bedard's office, and that's where they'll haul the guy that got shot. This is part of a system wherein the rest of us are paying, and I don't think that cost shifting in the hospital system is going to do it. I think we have to, I think what you bring to us today is a problem that goes all through our delivery system, and I hope that at some point we can deal with how every resident, not necessarily citizen, but every resident if you go to Canada, you'll get treated as an American whether you got the money to pay or not, and they won't drive you home in an ambulance, they'll treat you.  They may try and collect later, but they won't send bill collectors into America to do it.

I think the underlying system in both Dr. Blum and Dr. Bedard, in their remarks for how to correct the system have suggested that universal payment system or universal access is one of the critical parts. So, I hope that we can find a way. I like Larry's idea of a code, which I think the physicians to develop, under resource-based scale (RBS), as to what do you pay the neurosurgeon who is sitting at home in Arinda waiting to drive into Oakland because he's on call for an emergency room.  $3,000 a night?  I don't know.

There's got to be some kind of a system, and I think you guys should work it out, and we should, because we do pay you, for better or for worse, under Medicare and Medicaid.  It's those people who are uninsured that you don't collect from, and how are we going to do that?  I don't know. I certainly appreciate all of you being willing to be here, particularly Larry, who came at his own expense, to bring his expertise to this. As the--I hate to admit it, Madam Chair, as the author of EMTALA some 20 years ago, I'd still like to continue to work to get it right, and with your help, maybe we can. Thank you.

Chairman JOHNSON of CONNECTICUT.  Thank you, Mr. Stark. I think one of the reasons that we're here today is that most of the laws we wrote 20 years ago no longer work, just because of the explosion of knowledge in medicine, the explosion of technology, the explosion of diagnostic and treatment capabilities, and a variety of other things. If you look at the physician payment law, it doesn't work; you look at the hospital payment law, it doesn't work; and it's not surprising that our EMTALA doesn't work. I just want to ask a few questions and then go on to the other Members, and then we can come back for a second round if we have time.

First of all, as you know from the proposed changes in the in‑patient rule, we are moving from the system we invented in the 1980s of diagnosis-related groups (DRGs) toward a system that is much more, going to be much more directly aligned with the cost of care, so as we adopt the International Classification of Diseases (ICD‑10), we will have a more granular system by which to look at what we're going to pay for and to align cost and payment. As we do that, the ability of hospitals to shift the cost of emergency room care across all other categories will be diminished.

Are you prepared to help us understand exactly what the cost of emergency room care is, what the base cost of an emergency room facility is, what the base cost facility is, what the base cost of a trauma capability is, and how we should look at more accurately reimbursing for emergency care? Are you capable of working with us yet, you know, at this time, on that issue?  Because right now, the hospitals are not capable of cost reports that honestly or uniformly allocate costs to categories all across America. We have a lot of difficulty in understanding ourselves and I need to know, is our first work to begin understanding how you cost emergency room care and whether it is consistent across the country and what's the relationship between the cost to you and the payment you get? Mr. Warden.

Mr. WARDEN.  Madam Chair, the Institute of Medicine Committee spend considerable time talking about that topic, and one of the things that we concluded was that we do not have the data that you're suggesting is needed, and it reflects the fact that very little money has been put into research and studies to really document what's going on in emergency medicine, other than the clinical side; and secondly, that if we're going to be able to address those issues, we're going to have to set some performance standards, we're going to have to have a much better understanding of what the cost is.

Chairman JOHNSON of CONNECTICUT.  Well, I want you all to think about, I don't want to dwell on this, because there's so many other questions, but I want you all to think about this, because it may be that even this year we could develop a requirement that at least we start the process of finding out, because emergency room care costs now, just because of all the diagnostic equipment you're capable of, and years ago, are completely different, and not only do we not have any real understanding of that nor does the payment system reflect that, but we haven't developed any criteria for appropriateness.

I recently learned that one of my hospitals is seeing Magnetic Resonance Imagining (MRIs) for every appendectomy.  Now, this is nice, because in court, it's absolute proof, but we cannot afford MRIs for appendectomy. So, I ask you to think with this Subcommittee about what we do do now to find out what it does cost, because as changes in hospital payment move forward, we're going to need to know, and if we don't pay you more accurately, you won't be there. Then two other questions, and you can fold back in. You're dealing with a lot of uncompensated care, for whatever reason. How do we honestly recognize that?  What is the spectrum of your payments from Medicaid, Medicare, real cost, non‑payers?  We need to better understand that piece of it.

Then we need to better understand what we can do to change EMTALA law so that those who are just who could be using regular facilities use the community health center system, because we pay for that, too. We need to think, where is our money going, and what incentives do we need to put in place so people get to the point where we already pay for care. So, that's one issue. Then on this malpractice, I think if we don't do something about that, you will not survive, and what we did about that in the community health center, because I passed that law, was we took that liability onto the Federal Government, period, the community health centers pay if they get sued. We would need to know how many of the uninsured that come through emergency rooms end up suing.  Probably not a lot of them.  Yet, we're paying huge premiums for that possibility.

Okay.  Those are the things I need to know, because we need to pick out which portions of this problem we need information about and we need to start that aggressively now, which portion of these problems we could at least for a year or two years absorb malpractice costs or such and such, and what are the incentives for flow management, because I need to know why we can't do more of this through enlightened management and why we can't do more of this through regional planning. Mr. Levine.

Mr. LEVINE.  Yes, ma'am.  You asked a lot of questions there. Let me start with the last one first, related to liability, and some of the nuances of how this actually plays out and how it relates to the first question you asked about cost and coming up with a true cost. We stand absolutely ready.  I think the weakness in our health care system generally has been a lack of transparency in understanding the cost structure and the inputs to what the actual cost of care is. For example, in the emergency department, in the last few years, the costs have changed so dramatically, being able to pin those down is very difficult.  Let me explain. For example, the cost of paying for on‑call coverage can exceed $1,000, $2,000, $3,000 a day sometimes for certain specialists.  That's a new cost that isn't built into any of the reimbursement structures.

Number two, what do you do about the fact for example, we're a public system, and as a result, we have sovereign immunity. So, perhaps the only tool we have at our disposal is to employ physicians, and we employ over 200 physicians, for the purpose of trying to deal with, to extend our sovereign immunity to those doctors. Think about the thousands of other doctors in the community who are not employees of our health system.  Here's what happens to us. We're the public safety net system.  More than half of our ER visits are charity, uncompensated, or Medicaid. What happens when they show up in our emergency department?

For a specialist in the community, who is a private doctor, who has insurance of their own, because we're public and we have sovereign immunity, now that doctor is the deep pocket. So, the doctors don't want to cover the safety net hospitals for that reason, so they go to the private hospitals and they'll cover those hospitals, but not ours. So, that creates, you know, a really interesting wrinkle for us. The other problem is, and what I've seen really from our physicians, is now the incentive is to go bare, because for example, if you have a patient that has multiple system problems and they have four specialists taking care of that patient, if only one of the doctors has coverage and the other three doctors don't have any insurance, they're bare, the doctor that has insurance all of a sudden is the only target.  They have a big bullseye on their back.  So, they don't take the consults.

So, this contributes to the ER problem, in that that patient may be sitting in an in‑patient bed needing a consult, but we can't get a doctor to see the patient, so the patient occupies a bed and that disrupts the flow of patients. Those things are interwoven, and those costs what winds up happening in those cases, we will sometimes have to pay a specialist to come see that patient in the hospital. So all of those costs are built into the system that we don't have a way right now of disclosing to the Federal Government. As far as EMTALA, you know, the hammer does work. As the secretary of health care administration for the State of Florida, it was our responsibility to administer EMTALA, and what we found was it was becoming increasingly difficult.

On top of EMTALA, the State of Florida has a law that says if you offer us an elective service like orthopedics, and you don't cover the emergency department for that specialty, then you can't offer the elective service. On the surface, that sounds great, except here's what can happen. What happens when an elderly patient falls in the hospital? If the ER didn't have full orthopedic coverage, and you don't offer the elective service, you now have no doctor to take care of the in‑patient who needs the service. These are all interwoven problems that are, I think, relevant.

Now, in terms of EMTALA, and I have to disagree a little bit with what the doctor at the end said with regard to forcing doctors to pay, when you're40 percent of the doctors in South Florida are foreign medical graduates.  Twenty‑five percent of the doctors in our country are foreign medical graduates. We've got to get more people to go into medicine, and putting hammers over their head and telling them they're going to be punished is not the right way to do it, though I do think EMTALA needs to take into consideration if we have a patient that's in our emergency department, and a doctor, we can't get a doctor to cover, how does EMTALA apply to the medical community?

That's part of the issue for the hospitals.  When we go out and we survey hospitals for EMTALA violations, we fine them $10, $20, $50 thousand dollars an incident.  We publish it in the newspaper.  We embarrass the heck out of them. Then, really, the hospital isn't the one that wasn't covering the ER.  Even though they were willing to pay for it, they didn't have a doctor to cover it.  So, who do you punish in that circumstance? I think that's a relevant issue to talk more about.

Chairman JOHNSON of CONNECTICUT.  Dr. Blum, I think that is, Mr. Levine, a very relevant issue, and when I look at JCAHO, to some extent, how can you impose on institutions standards they couldn't possibly meet because we've been unable to deal with the underlying problems? Dr. Blum.

Dr. BLUM.  There were a lot of questions.

Chairman JOHNSON of CONNECTICUT.  Incidentally, you know, my time has expired, so let's do this.  Let's go on to the others and we'll come back. I wanted you to know what my concerns are, because we need to pick out and see what's the first step we can take on as many fronts as possible. My colleague from Arizona.

Mr. HAYWORTH.  I thank the gentlelady from Connecticut, our Chairman, and again, to our witnesses, thank you. Perhaps, Madam Chairman, it's just with the appointment to the Health Subcommittee, but I find myself, this merger of public policy and medicine almost involved I guess offering political diagnoses, and to hear the array of maladies in terms of public policy confronting emergency rooms, it sounds as if the case is almost terminal, that the sclerosis, the inertia of public policy, and the failure to deal with a variety of competing interests, and the inability to enforce laws have contributed to a state of crisis that is very troubling.

Mr, Kelly, since you hail from the Fifth Congressional District of Arizona, and for obvious purposes, I have more than a casual interest in what transpires in that geopolitical subdivision, let's talk more about what transpired at the Osborn facility with the illegal immigrant. As I recall  from your testimony, Scottsdale Healthcare incurred over $260,000 in costs. Can you describe the lengths to which your hospital system has had to go to ensure that these patients are returned safely to their home country and to ensure they are receiving proper care once they get there?

Mr. KELLY.  Yeah. In many instances, the consulate will not permit transport papers to be issued unless we can arrange for a facility, let's say in Mexico or in another country to accept that patient, and will not provide transportation. So, we have in the past also provided certain equipment for the care of that patient. For example, I believe, I have some figures here where we have given hospitals in Mexico and in other areas ventilators and other equipment and provided the transportation necessary along with the arrangements, the very complicated arrangements to get that patient from our facility to that foreign country.

Mr. HAYWORTH.  So, on one hand, the Republic of Mexico oftentimes refuses to be involved in extradition of suspected murderers back to the United States, and yet the transfer of patients I guess we wouldn't call it extradition, medical extraditionists as if they say, "No, we're to set preconditions upon you in the United States to ensure the health care once they return to the sovereign nation.'' That's been something else that's happened recently within Maricopa County, Arizona, where we live, in Scottsdale. There have been threats by the Mexican Consulate to get involved in court action ‑‑

Mr. KELLY.  Yes.

Mr. HAYWORTH. To ensure what I don't believe again, I'm not a lawyer, don't even play one here in Congress, much less on TV, but what I believe we would have to accurately describe not as rights, but as privileges, privileges they assume illegals should have in the United States. In your course of discourse in negotiations with the Mexican Consulate, were there any threats of legal action against Scottsdale Healthcare during the course of this episode or any others?

Mr. KELLY.  Indirectly, Congressman, yes.  "You cannot definitively prove that, that we will take whatever action is necessary, including court action, to ensure that, you know, you are not going to transport this person back.  We will not issue transport papers.'' Yes, sir, that is correct. In furtherance of your point, though, I'd like to point something out, and it's just not relative to Mexico. In my submission to this Committee, there is an Egyptian there. The cost of transportation, special air transportation back to Egypt was in excess of $8,000.  That patient came through our emergency room. That patient sued us.  That patient sued the physician, the patient sued the hospital. The physician paid over $400,000 and the hospital paid over $70,000 with both $100,000 in defense costs with the physician paying over $120,000 in defense costs. These are just not Mexicans that we're dealing with.

Mr. HAYWORTH.  No, indeed.  It is a problem almost encyclopedic in scope.

Mr. KELLY.  My colleague here has even some more shocking length of stay statistics that just blew me away in this chair right now.

Mr. LEVINE.  Madam Chair, we have awe actually have cases in‑house now, patients on ventilators from several South American countries. We have one case, a patient who needed a liver transplant, from another country, in the hospital for 85 days, ran up $800,000 worth of charges. We have another patient that was in the hospital for 373 days, came in through the ER as a gunshot wound. Actually, the consulate from Guatemala called an attorney to try to delay the patient's discharge from the hospital. So, these are cases where they've cost us in excess of millions of dollars, just at our one trauma center in Broward County.

Mr. HAYWORTH.  Madam Chair, you've been generous with the time. I look forward to the second round of questioning. Suffice it to say now, just as you're preparing your thoughts, panelists, again, a merger of medical and public policy terms, what do we do in terms of public policy triage to be reasonable and compassionate, and yet not bled dry financially by the abuse of our system? Think about that and we'll get back, I'll yield back, because you've been very generous with the time.

Chairman JOHNSON of CONNECTICUT.  Thank you. The gentleman from California.

Mr. THOMPSON.  Thank you, Madam Chair.  Thanks for having this hearing. This is a problem that I think that we all experience, irrespective of where we live, and I would certainly hope that we get an opportunity, Madam Chair, to work on this, even if it's incrementally trying to bring about some of the changes that may in the big picture not fix it all, but would certainly deliver some relief to folks who are having to deal with these problems every day in real life. Thank you all for being here to make presentations.  I appreciate it very much. Mr. Warden, in your testimony you talked about the lack of surge capacity and what could happen if there was a big car crash and how that could really impact things.

I live in a district that is a rural district, and it has a whole set of problems just because of that, but in addition, we've had all kinds of natural disasters. We have earthquakes and wildfires and floods, and we've even had a tsunami in my district that wiped out an entire town.  There's one building standing today that was standing in 1964. So, the whole issue of surge capacity is of great concern to the people that I represent. Given the propensity for natural disasters across sequence of events of the different areas, is there one thing that you would recommend that Congress could do to improve our disaster preparedness?

Mr. WARDEN.  Yes, sir. I think that one of the biggest challenges is that there's been very little funding available for disaster preparedness in hospitals, or for that matter, the health care system, and when you look at the amount of money that has been appropriated for those kinds of things, it just doesn't filter down to the level of the hospital and the hospital emergency room, and consequently, we're put in a situation where we have to react. Every hospital has an emergency preparedness plan, but at the same time, it's not as sophisticated as it should be, and they don't have the funding to do the kinds of things and get the equipment they need to be able to do it; and I think that's where it has to start.

Mr. THOMPSON.  I would appreciate it, I don't know if it's appropriate to ask that it be shared with the whole Committee, I don't know what the rest of my colleagues' level of concern is in this regard, but if you could, I'd like to see some ideas that you might have, not just we need more money, but, you know, what we could--what we actually need to do and how we would go about doing that.  I'd find that very helpful.

Mr. WARDEN.  There is information in the report, and we can see that that's provided to you.

Mr. THOMPSON.  If you could get that to me, I would really appreciate it.

Mr. WARDEN.  Yes, sir.

Mr. THOMPSON.  Two of the witnesses, I think Mr. Levine and Dr. Blum both talked about the nursing shortage issue that faces us. In my home state, in California, it's projected that by 2010 we're going to have over a 100,000 nurse shortage, and it affects, I suspect, everyplace around the state. I see it at home.  My wife is a nurse practitioner, and she's worked more in the last year on an on‑call basis than she has probably in the last five years.  So it's a real problem. I suspect that it has a real impact in regard to backups in emergency departments across there in every hospital. I'd like to know what your thoughts might be as to how we could help reduce that by doing a better job recruiting nurses.

Mr. LEVINE.  Sir, you hit the problem right on the head. You know, you have to make nursing more attractive to a broader population. Historically, nursing has been a population and by the way, this isn't limited just to nursing.  It's EMS professionals, it's allied health professionals, pharmacists, therapists, et cetera. You know, like I said in my testimony, only 5 percent of nurses are male and only 13 percent are minority, which is not reflective of the population. So, I think trying to make nursing more attractive as a profession for non‑traditional populations is very critical.  We can't do it without them, frankly. So, more recruitment, more incentives through the Federal and state government. I also think more faculty is a problem.  There's not enough faculty to train the additional nurses.

In fact, what was antithetical for me was the fact that we actually had waiting lists of people applying for nursing programs, but there's just not enough faculty to train them. To your question, if I may, on emergency preparedness, one of the best tools that we've got, and we used them for the eight hurricanes in Florida, at the Department of Health and Human Services is the use of the Disaster Medical Assistance Team (DMAT), and it is a tremendous it relieved a tremendous burden for the state and for the hospitals when we needed that surge capacity. Unfortunately, in a large‑scale disaster, I don't think that there's enough resources there for those teams, but those are terrific tools that we made great use of during those disasters.

Dr. BLUM.  On the nursing issue, I'm probably not the best person to ask about recruiting nurses, but I can tell you another aspect of the nursing shortage from the emergency medicine standpoint is not only the fact that we have not enough nurses in the entire hospital, therefore impacting the emergency department, but because the emergency department is asked to be infinitely elastic, we've asked our nurses to be infinitely elastic, and we've simply burnt them up and burnt them out.

I've lost hundreds of years of emergency nursing experience in my emergency department in the last few years. I have nurses with 25 and 30 years experience in emergency nursing who in the last couple years have decided, "I can't do this anymore, I'm going to take a lesser‑paying job working in radiation therapy or somewhere else in the hospital.'' Many of them have not left the hospital, but they've left the emergency department. So, our workforce now in emergency medicine is much younger than it has been relative to the past. It used to be that you had to have several years of critical care experience before you could even work in the emergency department.  That's not true anymore.

Mr. THOMPSON.  Thank you very much.

Chairman JOHNSON of CONNECTICUT.  Thank you. We'll start the second round of questions. Mr. Stark.

Mr. STARK.  Thank you, Madam Chair. I just want to put in a plug for my bill, which eliminates mandatory overtime for nurses. There's 500,000 nurses in this country who are not working, principally, we understand, because they don't want the mandatory overtime. So, we have that resource out there if we could somehow encourage them to come back into the system with a more friendly workplace.  That might help somewhat. I want to get back to the payment thing for the on‑call physicians.  Just help me a little bit.  I don't know whether, Mr. Warden, you remember. I mean, your former hospital system used to staff Kieren Mountain where I once went.  They had doctors, all they had to know is how to pick fishhooks out of people, and that was a plum assignment for the Henry Ford physicians in the summer.

Recently, we had a guy from Indiana who ran a bunch of hospitals in Indiana, and it turned out that in this hospital system, the not‑for‑profit hospital system, so he could see the 990, the five highest‑paid people in the hospital system were radiologists.  It ran from $600,000 bucks a year for the lead guy to $490 thousand for the next lowest. Is that we can't do that in California.  It's against the law to hire, for a hospital to hire a physician. Do any of you, Mr. Warden, anybody who runs a hospital, know, what say,  neurosurgeons do, any hospitals hire neurosurgeons, teaching hospitals?  If so, what do they earn? Larry?

Dr. BEDARD.  Our hospital had an incident where we did not have a neurosurgeon. I live and practice in Marin County, one of the wealthiest counties.  They were outraged.  So, the hospital administrator started to pay.  It was $1,000 a day. Once you paid the neurosurgeons, you had to pay the surgeons, the orthopedists.  Now, we're paying $10 million a year to get on call. The going rate for neurosurgeons now is $3,000 per day.

Mr. STARK.  Where they're hired--what I'm trying to get at is, when they're hired by the year, on salary.

Dr. BEDARD.  No, they were contracted, so ‑‑

Mr. STARK.  What does Kaiser pay, do you know?

Dr. BEDARD.  I'm not sure what Kaiser pays ‑‑

Mr. STARK.  Do you know what ‑‑

Mr. KELLY.  I know what I pay neurosurgery, Congressman Stark.  It's $3,000 per day.

Mr. STARK.  Does anybody have a hospital, Mr. Levine, Mr. Warden, where they hire, where the hospital hires a neurosurgeon on salary? It

Mr. WARDEN.  I think in university teaching hospitals, medical centers ‑‑

Mr. STARK.  Okay.

Mr. WARDEN. Or institutions like ours, which has an organized medical group, all the specialists are on salary, and they are expected to cover the emergency room. If you have a trauma center, you have to have that coverage ‑‑

Mr. STARK.  Can you give me to the nearest $50 or $100 thousand bucks what a neurosurgeon would make?

Mr. WARDEN.  In our system, a neurosurgeon makes about $350,000.

Mr. STARK.  Okay.

Mr. KELLY.  In my previous experience at Jefferson, I would concur with that.

Mr. STARK.  Okay.  So, I guess what I'm getting at is, it doesn't seem to me unreasonable, though maybe there aren't enough of them, to increase that salary or to expect that person on salary to be available one or two nights a week when they're on salary. I just, I'm just trying to, I'm sure that we find that many of these people have a high income and they don't want to sit around for a couple hundred bucks.  That seems wrong. Mr. Levine?

Mr. LEVINE.  I don't know that you can--I don't know that you can make an accurate comparison in academic medicine salaries, because in academic medicine they don't cover ER call themselves.  They have residents and interns that do it.  So, ‑‑

Mr. STARK.  I'm just trying to, and I want to kick this back to the, you know, onto the AMA and the people who do the resource-based relative value scale (RVRVS), and say, as I think you recommended, Dr. Bedard and Dr. Blum, we ought to figure out whether there's we can't make Blue Cross do that. If we had a code under Medicare, it pretty soon trickles down to the other insurers, and say, "Look, here's what we pay.'' I would hope, and I would hope the chair would join with me, that we could encourage the medical societies to come up with a resource‑based charge that we would then institutionalize through Medicare and say, "Okay, this is the way to do it.'' Perhaps, we could get that problem solved for you, and I would ask any of you who are involved in this if you would have any other ways that we could do it, but one of you in your testimony said that's what we should do, is go back and find a code to reimburse for this. Dr. Blum?

Dr. BLUM.  Well, first of all, I explained the mindset of my colleagues and myself.  To us, paying for on‑call services is kind of antithetical. We believe a better solution is to remove the barriers that keep physicians like neurosurgeons and orthopedists from taking call in the hospital.  That makes much more sense to us. We believe being on call is part of as part of being on the medical staff of a hospital is a responsibility. What has happened is there have been significant barriers to being on call for those folks, and if we remove those, I think that would solve the problem.

If we could ensure, you know that they get some payment for what they do, if we could ensure they have some protection from unreasonable liability, I think that that would help them. Quite frankly, part of the issue is that it's very uneven. You have some of those specialists that are willing to take call and others who are not, and so again, fewer and fewer specialists are caring for more and more patients, and I can tell you, in a busy trauma center, a neurosurgeon may be up all night caring for the emergency department patients, and then he can't do his regular, you know, operating room (OR) schedule the next day.

Mr. STARK.  I would come back to you guys and the neurosurgeon.  You don't want us to define that for you, believe me. If you all would come up, as you did with the RVRVS or others, something that the physicians are comfortable with, and come back to us, I think we could move ahead. I warn you that having us design that system, you wouldn't be very comfortable with it. I'm over my time, Madam Chair, but maybe Mr. Levine and Dr. Bedard could respond ‑‑

Mr. WARDEN.  Can I just speak one comment?

Mr. STARK.  Go ahead.

Mr. WARDEN.  I think, just two comments, Madam Chair and Mr. Stark. Number one, I think that one of the issues that is silent, that we're not recognizing, in some of the specialties where there's a shortage, it's because the specialists are not being turned out because they have basically limited the number of education or training positions and residencies in the particular specialties, so we're never going to catch up as long as that occurs.

The second thing is that in the report, in our discussion on regionalization, we talk about the regionalization of specialty coverage, and, you know, in a community like Detroit, there's no reason why every institution has to offer every specialty, and if we regionalized it and had a coordinated plan, we could solve a lot of the problems, and I think that's one of the other things that has to be considered.

Mr. LEVINE.  I think that would, the second part of what the doctor just said is accurate, in that one thing that the Congress could do is look at the antitrust issues related to hospitals ‑‑

Mr. STARK.  Could antitrust help solve that?

Mr. LEVINE.  I believe so. We have hospitals in Palm Beach County, for example, that have been trying to do that, but are afraid to move forward for fear of antitrust. Also, too, I don't think you have to reinvent the wheel, if we look at what's been tried and has worked. For example, in Texas, they implemented reforms in 2003. Since they implemented their reforms in 2003, their medical liability reforms, they've brought 4,000 new doctors to Texas, including neurosurgeons, pediatric surgeons, obstetricians and gynecologists (OB/GYNs). It's been a huge, huge change, a sea change in Texas, and they've gone from a net exporter of physicians to they're bringing them back in the state.

Mr. STARK.  Even in the summer?

Dr. BEDARD.  I served on the AMA's RUC, the Reimbursement Update Committee, and there's about 50 different organizations of specialty represented. The interesting thing, it's a zero‑sum game.  So, if we increase the fees of one physician specialist, the other ones take a slight cut.  That has a very mild effect on the overall, I think, cost of health care. In California, I know where neurosurgeons are getting $3,000 a day for being on call from three separate hospitals, so they're getting $9,000 for being on call. So, regionalization makes a lot of sense.  Have them at one hospital.  Take the patient to where the neurosurgeon is.  Don't allow them to be on three different hospitals. They use EMTALA as a tremendous leverage in any negotiation with the hospital, and I think that's one of the reasons why there are such high rates and somewhat exorbitant costs.

It's also, I think, interesting to note, the physicians with the highest income neurosurgeons, orthopedic surgeons, ear-nose-and throat (ENT) surgeons are the ones that are most difficult to get to serve on call. The lowest‑paid specialty is pediatrics, and in my career, I've never had a problem getting a pediatrician to come in, smile on his face, taking care of a little kid. So, it's kind of paradoxical that neurosurgeons, who may be making, you know, $500,000 a year, or $9,000 a night, want to complain about the fact that they're going to have to take care of somebody who has no insurance and they may be uncompensated.

Chairman JOHNSON of CONNECTICUT.  The gentleman from Arizona.

Mr. STARK.  Can we do that, Madam Chair?

Chairman JOHNSON of CONNECTICUT.  Well, we'll certainly look at it.

Mr. STARK.  I'm not sure it's our jurisdiction.

Chairman JOHNSON of CONNECTICUT.  I think we can, you know, ask the Judiciary Committee to look at it with our staff over the break and see what comes out. The gentleman from Arizona.

Mr. HAYWORTH.  Thank you, Madam Chair. Gentlemen, as we listen to this, I return back to the dynamic I presented at the conclusion of our first round. What do we do, specifically, as we talk about patients from foreign nations, wherever they may come from, receiving a quality type of care I mean, it seems that undergirding western jurisprudence, and what we've done in the United States is the basic test of what is reasonable, and to hear the cases brought forward today, reasonableness went out the window. Mr. Kelly and others on the panel, what should we do?  Should we set in statute and maybe it goes back to the way EMTALA was drafted or the threat of legal action.

What parameters could we set in terms of what is reasonable that certainly wouldn't be like triage in the wake of a disaster, but something that's reasonable to get people up and then get their on their way back to their home country without continuing to ask American taxpayers to foot the bill?

Mr. KELLY.  That's an excellent question, Congressman. Let's treat these people and stabilize them, and the cost of their transport should be met by the government which they're a citizen of. We cannot afford this type of what's causing the backlog, the overcrowding, the length of stay, just not from the ER, but from the transport from the ER into the in‑patient setting, because we can't get that foreign country or that foreign government or that person to cooperate with us. So, we should be able to treat and stabilize and that person should be taken back to their country at their country's expense. The 93‑day length of stay, the 200‑day length of stay that you heard from my colleague to my left here, this is what's causing tremendous amount of backlog and an enormous amount of expense. So, let's treat to stabilize in a humanitarian way, these illegal immigrants, and let's get them back to their country of origin.

Mr. LEVINE.  There is nowhere, once they are in our emergency department, and we've identified they need treatment, even once we're done treating them, unless they can be discharged to the street, basically, there's nowhere for them to go. No post‑op, post‑acute facility will take them, so they're stuck in the hospital until we can find somebody. I think that my colleague is right on target.  Stabilizing and transferring back and having some requirement that the foreign government take responsibility. In fact Canada does that.  You know, when they come down from Canada, they either pay for the treatment or they pay to return them back, and that's exactly what other governments ought to do.

Mr. HAYWORTH.  Dr. Blum?

Dr. BLUM.  Well, I don't know that ‑‑

Mr. HAYWORTH.  Excuse me, Dr. Blum, could you ‑‑

Dr. BLUM.  I'm sorry. I'm not sure I'm the best person to answer how best to transfer them back once they're stabilized. I can tell you what does not work for emergency physicians is denying people care that need it, no matter what they are. You know, they could be, you know, felons in other countries, but if they need our care, you know, we don't want to be put in the position where we have to deny care. Neither one of these gentlemen have said that, but that has been proposed by some people, actually, in some cases. So, I just want to be real clear about that.

Mr. HAYWORTH.  Likewise, let me be clear, doctor. I think perhaps the best way, not to put words in your mouth, but I think we're describing compassion and our sense of humanity. When the question is asked of me, and we'll get into political theater, because it's inevitable as people try to draw distinctions and perhaps exaggerate distinctions, the law should deal in humane fashion. Medical ethics is not a contradiction in terms, as perhaps political ethics might be, and you obviously have responsibility as a physician to treat people, and indeed the law caught up with your sense of ethos, but the question becomes how then do we deal in a humane manner and also show some compassion in terms of public policy for those who get stuck with a bill that continues to drain your system and deny care to the mom and dad with a youngster who is waiting three and four and five hours, not just in border states, and I don't know anecdotally what happens in West Virginia where you practice there at the university, Dr. Blum, but all these things are interrelated. I think the point is well taken. Yes, sir.

Dr. BLUM.  It's a very complex problem.  It's not even just the patients that get admitted. I'm aware, I do not practice in a border state, but I'm aware from my colleagues in the specialty of patients that come and present to the emergency department a couple times a week for dialysis. You know, they get treated, they get dialyzed, they go back across the border, and then they repeat the whole process again, you know, later in the week, which isn't that person doesn't even necessarily need admitted to the hospital, but they present with an acute problem, which is the need for dialysis, and we treat them.  So, ‑‑

Mr. HAYWORTH.  Is it fair to call that serial abuse of our medical system, because that comes not with malice aforethought, with gaming our system, taking advantage of our laws?

Dr. BLUM.  I do want to say something. This is not directly related to this.  But several comments now have alluded to this. One of the important points that I want to make today is to correct what I believe to be a widespread misconception that the nation's emergency departments are crowded with people who do not need to be there. Our waiting rooms sometimes are crowded with people who do not need to be there, but our emergency departments are usually crowded with people that need to be there. They often are there because they can't get primary care somewhere else and their medical condition advances to the point where they need emergency care. It would be a great misconception to say, "If we could just remove all the patients that are inappropriately using the emergency department, we could solve this problem.''  That would not be the case.

Mr. HAYWORTH.  Dr. Bedard, with your indulgence, Madam Chair?

Dr. BEDARD.  First of all, the current law under EMTALA only requires treatment up to the point of stabilization, so I think it is compassionate and I think it addresses the issue.  When that person was stabilized, his right to any future medical care ended. So, the issue, though, how do you repatriate that person to Nicaragua or Mexico, is obviously something that the medical profession can't do or deal with; that's something, whatever, treaty or an agreement to send them back. Also, with Dr. Blum, we have to take care of these people.  You can't deny them care.  We're not going to let them bleed to death on the street.  But once they're stable, we can discharge them.

Mr. HAYWORTH.  Again, just one point about this. The root cause, however, as you say, law simply stipulates we stabilize.  What is the exterior threat?  Is it lawsuit?  Why over and above?  Is that it, the threat of lawsuit?

Mr. KELLY.  It's the threat of lawsuit of abandonment, that is correct. When they go from the emergency room, there's nowhere else to go.  There is no long‑term care facility that will take them.

Dr. BLUM.  It goes way beyond that. I mean, oftentimes, they have medical conditions that simply do not allow you to send them out. You know, we talk about patients that require long‑term ventilation or long‑term feeding tubes. You know, you can't take a patient on a ventilator and roll them up to the border and say, you know, "There, take them back.'' I mean, that doesn't work unless you have a receiving facility with the ability to care for the kind of problems that patient has. So no medical professional, I don't care who he is, whether it's an emergency physician or whatever, is not going to discharge that patient to an inappropriate environment, whatever that might be. So we all kind of suck it up and, you know, try to do the best we can.  What these gentlemen have described is just that.

Mr. LEVINE.  The practical reality is just what you said, sir. The fact is, if we have a woman in the hospital who needs a liver transplant and, you know, she's stable, we could certainly discharge her, but practically speaking, it would be she would die. So, you know, we hold her until we figure out what we're going to do, and in that particular case, that patient stayed, in that case, it was over 300 days, over a year, actually, in the hospital, because and to the dialysis issue, as well. If other states, if other governments, rather, don't do dialysis for people over the age of 55, they show up in our emergency department, and at that point, they may not be stable, and we have to dialyze them.

Mr. HAYWORTH.  Madam Chair, you have been very indulgent with the time, and I'm grateful for that. As you and the Ranking Member were talking about jurisdictional issues perhaps beyond the purview of this Committee, I'd certainly take a look at international relations, at not so much treaties, but the whole establishment of diplomatic relations. I'd take a look at the funds we spend on international Committees dealing with health. Certainly, there is a cross‑jurisdictional challenge to prioritize the payment of these bills and to ensure that there is more than a diplomatic exchange, that there is responsibility on the part of nations with whom we have diplomatic relations to likewise be accountable.

The failure to see that, and the dynamic of the threat of lawsuits adding to what is obviously the ethos of the profession to care for people, and understanding that this is not just a simple cut‑and‑dried matter, all of this combines, and it's going to require some thought, and even into the whole realm of foreign relations and diplomacy with foreign nations, as we're dealing with the question. It's really, it's interesting the inter‑relatedness of all these different topics coming to bear today in this hearing before our Health Subcommittee. Madam Chair, I thank you, and gentlemen, again, thanks to all of you for your thoughts.

Chairman JOHNSON of CONNECTICUT.  Thank you very much. The advantage of having one panel is that you do get a chance to allow Members to pursue their questions and the panelists to contribute. There is one other issue that I want to raise that we haven't had a chance to plumb, that is important as we begin to think in this area. Mr. Warden, the Institute of Medicine report recommends that we establish an office of emergency care, emergency and trauma care. That certainly has some appeal when you see the chaos and mess of that service.  However, establishing offices in the Federal Government has not always assured progressive, thoughtful, and effective law or management. A number of other things you recommend remind us that regional performance, institutional performance is really, in the end, what matters.

I want you each to make comment on what do you think. The recommendation to coordinate regional EMS and emergency room care is very logical. We certainly have to remove the legal barriers, and maybe even require that, as a condition of Medicare eligibility, you have to have in place a regional system that can bring a neuro patienta patient needing a neurologist to the emergency room that has a neurologist on call and a bed available, I mean, that we could do a lot about the many problems we've talked about if we could bring patients where there is space for them and expertise available for their care. So, that's a kind of simple example. Mr. Levine, in your testimony, you referred to things that you've done in Florida to better manage the resources of  an institution so you don't have some of the problems that we've talked about.

Now, putting malpractice aside because we've discussed that a lot, and I think a solution to that is absolutely essential both in regard to the illegals and in regard to the liability of the individual physician. I was shocked the last time I was in Florida to see how many of the physicians there are just going bare, bare.  People in America don't know that. So, it's ludicrous to say that somehow malpractice insurance provides you with some inalienable right when it is now so expensive that you have no right at all. So, putting malpractice kind of off to the side, and the problem of the illegals off to the side, just looking in terms of Federal structure because after all, in Medicare, we have a lot of leverage to pull.  We can require that you do certain things.

So, whether we establish an office versus what has the institutional aspect of this, what can be done institutionally, what can be done regionally, and do you or do you not, each one of you, think some of you may have heard this idea for the first time and want to get back to us? We really need your thinking on the structure of not only responsibility but oversight. Mr. Warden, maybe you'd like to start with a clearer explanation of the Institute of Medicine's recommendation.

Mr. WARDEN.  The Institute of Medicine's recommendation about the lead agency really stems from the fact that as we did the study and sought testimony from all the stakeholders, it was very clear that there were eight or 10 different agencies that were coming to bear on the issues that we've been talking about this morning. Each one of those agencies, in their own right, has contributed a lot, and a good example is NHSTA, the National Highway Safety and Traffic Administration. Yet at the same time, no one of those agencies had enough reach to be able to influence things sufficiently in any integrated fashion. We're not suggesting that we create a huge bureaucracy. We're suggesting that there needs to be an agency that takes responsibility for basically leading the coordination among these various organizations, establishing work groups, stimulating demonstrations that will begin to address the kinds of things ‑‑

Chairman JOHNSON of CONNECTICUT.  So, for example, a lead office within CMS, since both Medicare and Medicaid are located there, is that ‑‑

Mr. WARDEN.  Well, we actually suggested that a lead office be within HHS, and were kind of silent on CMS, but ‑‑

Chairman JOHNSON of CONNECTICUT.  We'll have to look at that, because there are some advantages and some disadvantages to not being, right, working with the people who are running these two big systems.

Mr. WARDEN.  It's really kind of beyond ‑‑

Chairman JOHNSON of CONNECTICUT.  Yeah, okay ‑‑

Mr. WARDEN. It's not just payment. The second point in terms of your question about regionalization, we believe that regionalization, wherever possible, ought to be accomplished at the state and local level, but that there ought to be some guidelines for making that happen. If we can do that, we don't need a large bureaucracy over seeing it if we can get these various organizations and the providers and all the stakeholders to buy into it. We really think that if we can get the regionalization and coordination and accountability developed at the state and local level and we can have basically a seamless experience for the patient, then it will solve a lot of the problems that we've been talking about.

Chairman JOHNSON of CONNECTICUT.  Mr. Levine.

Mr. LEVINE.  I think my first reaction when I read that was at first to say I didn't like the idea of a national bureaucracy.  I'm encouraged to hear that wasn't what they had in mind. I'm going to borrow a little bit from our emergency disaster experience in Florida and how we've handled the emergency system, because I think, I view the safety net in that from that perspective.  It's bottom up. I think probably the one word that we want to use to describe our emergency system is we want it to be agile.  We want there to be agility in the system. For example, after several of our hurricanes, dialysis centers became a problem.  They didn't have water and they didn't have power.

So the emergency response system, the way it's established is locally they're responsible for coming up with a regional plan that the local emergency operations centers have to approve on an annual basis. There needs to be more regionalization and more coordination locally at that level for deciding, what we re going to do in the event there's a problem with dialysis, what are we going to do in the event one of our trauma centers is knocked out of commission or we don't have water? It's always better to have it be bottom up rather than top down, because each state is so different and each community is so different in unique.

I think if you have national standards for what the expectations are of our emergency system that are transparent, and then incentivizing states to implement those standards because typically states will look to the local leadership and encourage local leadership through grants or even financial incentives to participate. To me, then you get the right bottom up approach, as opposed to a Federal office that grows a life of its own and then develops its own mechanisms for us to have to follow, and d I think that would be additive and not necessarily constructive.

Chairman JOHNSON of CONNECTICUT.  Yes, Mr. Kelly.

Mr. KELLY.  Yes. At Scottsdale, with the lead of the City of Scottsdale, our hospital, and the National Guard, we have one of the largest disaster drills in the country, at least west of the Mississippi, and it's called the Coyote Crisis. It has been a very successful drill, in bringing about all of the components necessary for everyone to talk to each other, whether it be the police departments, highway patrol, other hospitals, specialists, physicians, emergency rooms. I would hate to see it to be Federalized or a specific office.  I think that this can be done cooperatively among  the various hospitals and states, and done on a regional basis. It's been done very successfully in Arizona.  I think part of that has been placed in my report to the Committee. It is called the Coyote Crisis.  It is really a fantastic partnership between the city, state, the medical profession, and it's worked.

Chairman JOHNSON of CONNECTICUT.  Thank you. Dr. Bedard.

Dr. BEDARD.  First of all, I would support the concept of a lead agency, emergency medicine is really an essential public service.  I think we provide a vital function for the country and I think it deserves to be carved out, looked at, standards set. As I mentioned, JCAHO, when they come to a hospital, the ER is frequently almost virtually ignored. I mean, I ask them, gee, I hope they ask me to show them the on‑call list, because half the days are blank.  They never ask the question.

So, if you had a lead agency, I think it would also be effective in proactively surveying hospitals' health care system. I think regionalization and coordination is critical.  I think medicine is one of the more inefficient, wasteful services that we provide. I mean, I'm still astounded.  Somebody has a Computerized Axial Tomography (CAT) scan done at a hospital two days ago because they had a seizure, I can't get that information. So, I think to regionalize and coordinate, you're going to have to have much more investment in information technology, have electronic medical records or some way for patients to carry their records with them, but I think to do that, you're really going to be it's essential to have superb information technology.

Chairman JOHNSON of CONNECTICUT.  Dr. Blum.

Dr. BLUM.  I would cautiously support the idea of a lead agency.  It depends on what that lead agency is charged with doing. I think it makes sense for a lead agency to do things like coordinate national response to disasters, et cetera, et cetera, things of national scope. I think to overdo that bureaucracy, though, does not make sense to a system that has so many fundamental flaws. The analogy that I would use is it would be like putting a sophisticated computer control module on a car that has no gas in the tank; and in emergency medicine right now, we have no gas in the tank, you know, and someone stole the engine, so that control wouldn't really help us very much.

We have much more fundamental problems, quite frankly. You alluded to costs earlier.  You talked about costs earlier. You know, we currently pay for the uninsured by cost shifting, but that's becoming increasingly difficult. No payer wants to have costs shifted to them, including the Federal Government.  Yet we still have to figure out a way to care for these people. We could call it a single payer system, but quite frankly, that's cost shifting. Anytime you provide care to a bunch of people who cannot pay for it, that's cost shifting, and you could call it a single payer system, you could call it taxes, you could call it whatever you want to, or you could call it what we call it now, which is cost-shifting, charging people more to pay for the people who can't pay at all.

I don't run away from cost-shifting.  Quite frankly, it's the way we've figure out how to provide care under this kind of strange sort of system that we're in. Let's recognize it for what it is.  You could call it something else, but it's still the same thing.  It's those people who can pay paying for those people who can't.

Chairman JOHNSON of CONNECTICUT.  Thank you.  Thank you all for your--Mr. Stark?

Mr. STARK.  Can I just take another slice of the apple here, Madam Chair?

Chairman JOHNSON of CONNECTICUT.  All right.

Chairman JOHNSON of CONNECTICUT.  While I hold no brief for the state of the art of medical care in Mexico, we did get from the Mexican Embassy the laws there about treating people who were either in Mexico legally or illegally, and all I can suggest to you, I'd make these part of the record.

Mr. STARK. Madam Chair, they're very generous. In other words, basically, they say, regardless of why you're there, you're treated.  I would make those rules part of the record. I did want to ask, particularly Dr. Bedard, Dr. Blum, I guess everybody but Mr. Warden, who may not have a horse in this race, but one of the issues that we've been talking about, and initially this hearing was designed to talk about, the burden placed on you all by immigration, by immigrants.  That was changed for some reason.

Nonetheless, in the House bill that we're talking about, there's a question whether the possibility that providers of care to people who are here illegally would criminalize them, they would be subject to felony charges if that came about. Also, that would, I suspect, put your emergency departments somewhat in the position of being de facto immigration agents. I wanted to ask each of you if you think that's a good idea for you to you have enough trouble figuring out whether they may what their blood type is. Do you think it's a good idea for us to impose on Medicare emergency medical care providers the need to certify a citizenship? Just, I'll start with Doctor Bedard, go down the line.

Dr. BEDARD.  Absolutely not. I'm a physician.  I'm there to help people.  I'm not an Immigration and Naturalization Service (INS) agent.

Mr. STARK.  Dr. Blum?

Dr. BLUM.  Absolutely not. Physicians have a contract with the patient to do what's in their best interests, and that would violate that.

Mr. STARK.  Now, as the representative of a kindly bureaucracy, Mr. Levine, what would you feel from an administrative standpoint?

Mr. LEVINE.  Let me clarify the question. Are you asking if we would support our staff or physicians being criminalized if they treat someone who is ‑‑

Mr. STARK.  And/or the fact that they would have to somehow certify if investigate the people who came in were in fact citizens or here legally.

Mr. LEVINE.  Well, we would not support that. Indeed, we don't even ask that question until we've started treatment, because of EMTALA requirements.

Mr. STARK.  Mr. Kelly.

Mr. KELLY.  Congressman Stark, we believe that that would have an extremely chilling effect upon our health care workers. You know, we can't do that now.  We can't even ask that question on Form 1011. So, we would be very, very opposed to that.

Mr. STARK.  As I say, I have no quarrel with the fact that people who can't pay, wherever they come from, are a burden to the system, but I'd like to think that there are better ways to resolve that than putting you all in the position of having to be law enforcement people. Thank you, each of you, for your interest and efforts and I hope you won't want not that the Chairman won't have another hearing, but I hop you won't wait until she does to offer us suggestions as to what we might do to help solve this problem by minor adjustments. I'm not sure we're going to run around and immediately have universal health care.

For example, the antitrust thing might be something that we could move on more quickly, and we really would appreciate, I'm sure I know that I don't want to speak for the chair, but I know that she is very receptive to these ideas from the providers, and I would join with her in asking for your assistance. Thank you all.

Chairman JOHNSON of CONNECTICUT.  Thank you. I certainly join with Mr. Stark in his last comments. We won't have another hearing until we have something to say or we see that there's some part of it we didn't hear, but you've laid out all aspects of the problem pretty completely, and we do invite you to share your thoughts, having listened to one another, you know, as to what are one or two things we could do now, what are the big issues that we ought to be laying a more substantial record knowledge base?

For instance, we really do have to get into medical education.  We all know that.  How do we fund it?  But also, what do we teach? I mean, to what extent is our current medical education system going to prepare the doctors that are going to serve us in the future for a very different environment? It's got to be one based entirely in health information technology.  It's got to be capable of absorbing new medical knowledge more rapidly, delivering it more accurately, providing necessary but not unnecessary care. It is going to be a different world that we're moving into, and we want the base of law that we lay in the next round of shaping our medical education system to understand that.  That's going to be a big challenge just in and of itself.

It's clear that our old legal system doesn't work now with the way medicine is moving in America. It doesn't work partly because the state of the art is moving so rapidly you can't hold physicians liable for knowledge that wasn't available two months ago.  So, we're having a lot of problems. Failure to diagnose is a terrible threat to the medical profession, and so on and so forth. I just want to say the problems are big.  We understand that.  You've done a very good job for us today.  We appreciate that.

If you want to follow up with specific recommendations as to what steps need to be taken in what order, that would be very helpful to us. I'm going to submit for the record two things that Mr. Stark asked me to submit. One is the District of Columbia Inspector General Report on the assault of David Rosenbaum. I'm submitting that for the record.

[The information follows:]

GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE OF THE INSPECTOR GENERAL SUMMARY OF SPECIAL REPORT: Emergency Response to the Assault on David E. Rosenbaum

CHARLES J. WILLOUGHBY INSPECTOR GENERAL OIG No. 06-I-003-UC-FB-FA-FX June 2006 This Summary describes the D.C. Office of the Inspector General's review of the emergency response efforts provided by District agencies and-hospital personnel in light of applicable policies and procedures. The OIG is providing this Summary in lieu of the full report in accordance with the exemptions provided in the District of Columbia Freedom of Information Act (D.C. Code §§ 2-531-539 (Supp. 2004)) to preserve the privacy interests of Mr. Rosenbaum and other individuals mentioned in the full report. Background and Perspective

"Man Down." On January 6, 2006, at approximately 9:20 p.m., a resident of Gramercy Street, N.W. went to his car to retrieve an item and found an unknown man lying on the sidewalk in front of his home. The resident's wife called 911, and the Office of Unified Communications dispatched emergency responders to the scene for a "man down." The fire (first responders), police, and ambulance (second responders) personnel who were at the scene did not detect serious injuries, illness, or evidence that the then-unknown man had been physically attacked. He had no identification in his pockets, but was wearing a wedding band and a watch. Stereo headphones were found near him on the grass. Because he was vomiting, and because one or more responders thought they smelled alcohol, the man was presumed to be intoxicated. Consequently, the man was classified as a low priority patient and transported to the Howard University Hospital (Howard) Emergency Department where, after lying in a hallway for more than an hour, medical personnel discovered that he had a critical head injury.

At approximately 11:31 p.m., Rosenbaum's wife reported to the Metropolitan Police Department (MPD) that her husband, David E. Rosenbaum, had gone for an after-dinner walk at approximately 9 p.m., but had not returned. The police broadcast a descriptive lookout, and a police officer who had responded to the Gramercy Street "man down" call realized that the description of the missing person matched that of the man who had been found lying on the sidewalk. It was later determined that the "man down" was David Rosenbaum.

Mr. Rosenbaum's head injury was discovered at Howard in the early morning hours of January 7 and reported to MPD. MPD officers then returned to the Gramercy Street scene to look for evidence that might indicate the cause of the head injury. Later, on January 7, the Rosenbaum family was alerted by credit card companies to unusual activity on Mr. Rosenbaum's credit cards. MPD subsequently linked Mr. Rosenbaum's injuries, his missing wallet, and the unusual credit card activity, and initiated an assault and robbery investigation.

Despite surgery and other medical interventions to save him, Mr. Rosenbaum died on January 8, 2006. The autopsy report issued on January 13, 2006, by the Office of the Chief Medical Examiner concluded that Mr. Rosenbaum was a victim of homicide due to injuries sustained to his head and body.

Scope and Methodology

Following Mr. Rosenbaum's death, numerous questions were raised and complaints made by both citizens and District government officials about the emergency medical services provided to him by D.C. Fire and Emergency Medical Services Department (FEMS) and Howard personnel. Questions were also raised regarding the delayed recognition by MPD officers that a crime had been committed.

In a letter to the Inspector General dated January 19, 2006, City Administrator Robert C. Bobb requested that the Office of the Inspector General conduct a review of the response to David E. Rosenbaum's assault and subsequent death.' Mr. Bobb indicated that he and Mayor Anthony A. Williams wanted the review "to ensure the maintenance of public confidence in the emergency services provided by the District government." In his letter to the Inspector General, Mr. Bobb asked that the Office of the Inspector General's review specifically include answers to the following questions: • Did the Office of Unified Communications properly handle, dispatch, and monitor the incident? • Did FEMS employees follow all rules, policies, protocols, and procedures? • Did first responders properly assess the patient? • Were FEMS written reports and oral communication adequate? • Did MPD responders properly assess the situation at the scene, and were steps taken by MPD responders prior to opening an investigation adequate? • Did the second responders arrive with all due and proper haste? • Did the second responders properly assess the patient? • Did the second responders select an appropriate hospital? • Are there any identifiable improvements to FEMS rules, policies, protocols, and procedures? • Did Howard properly triage and assess the patient upon his arrival at the hospital? • Did the Office of the Chief Medical Examiner promptly and completely discharge its review and report of the death?

In addition to Mr. Bobb's questions, the Office also received inquiries from Councilmembers Phil Mendelson and Kathy Patterson regarding issues of concern with respect to this matter. Finally, the Rosenbaum family requested that the Office of the Inspector General answer questions they posed "so that errors [they] experienced are not repeated in the future ...." We believe that this report is responsive to many of the questions that have been raised. The scope of the Inspector General's review included the entire emergency response provided to Mr. Rosenbaum on January 6, 2006, and the review conducted by the Office of the Chief Medical Examiner.2 To conduct the review, the Inspector General appointed a team of inspectors and investigators to examine the circumstances surrounding the January 6, 2006 incident. The team members have training and experience in law enforcement, firefighting, medical, and pre¬ 1 FEMS and MPD also conducted inquiries into the actions of their responders to the Gramercy Street emergency. In addition, the District's Department of Health conducted a "complaint investigation" into Howard University Hospital's response. 2 The care and treatment provided to Mr. Rosenbaum at Howard University Hospital subsequent to the discovery of his head injury, and the MPD assault and robbery investigation that was opened on January 7, 2006, were not part of the Inspector General's review. hospital care.3 The team reviewed policies, procedures, protocols, General and Special Orders, personnel files, patient care standards, hospital and ambulance medical records, certification and training records, and reports issued by FEMS, MPD, the Office of the Chief Medical Examiner, and the Department of Health. The team also interviewed all District government and Howard personnel involved in Mr. Rosenbaum's emergency care and autopsy. Upon conducting its review, the OIG team noted multiple discrepancies in statements made by interviewees. (See Appendix 1)

Findings and Recommendations

Office of Unified Communications

• The Office of Unified Communications properly handled, dispatched, and monitored the Gramercy Street call. The call taker and dispatchers who handled the 911 call carried out their duties appropriately.

Recommendation None.

Fire and Emergency Medical Services Department Engine 20

• Engine 20 personnel did not follow all applicable rules, policies, protocols, and procedures. The firefighter in charge of the Engine 20 crew on January 6 did not have a current CPR certification as required. In addition, the firefighter/Emergency Medical Technician (EMT) with the highest level of pre-hospital training did not take charge of patient care during the Gramercy Street call.

• Firefighter/EMTs did not properly assess the patient. None of the firefighter/EMTs performed a complete assessment of the patient, and not one of the patient's vital signs4 was recorded at the scene. Once the firefighter/EMTs perceived an odor of alcohol coming from the patient, they did not focus on other possibilities as the cause of his altered mental status such as stroke, drug interaction or overdose, seizure, diabetes, head trauma, or other injury.

• Oral communication and standard reports were not adequate. Firefighter/EMTs did not pass on key information to the ambulance crew such as observing blood on the patient and detecting the patient's constricted pupils. Engine 20 personnel did not prepare a written report on the Gramercy Street incident because the FEMS form for such purpose is being revised.

3 Emergency response by fire and ambulance personnel. 4 Heartbeat, breathing, and blood pressure. Recommendations

1. That FEMS ensure all personnel have current required training and certifications prior to going on duty.

2. That FEMS immediately implement a reporting form for firefighter/EMTs who respond to medical calls so that first responder actions and patient medical information can be documented.

3. That FEMS develop and implement a standardized performance evaluation system for all firefighters. The Office of the Inspector General team determined that FEMS employees are not evaluated on a regular basis, in the manner that other District government employees are evaluated. Consequently, FEMS lacks standards to guide firefighters' performance and for use in evaluating their performance.

4. That FEMS assign quality assurance responsibilities to the employee with the most advanced training on each emergency medical call. The designated employee should: (a) have in-depth knowledge of the most current protocols, General Orders, Special Orders, and other management and medical guidance; (b) monitor compliance with FEMS protocols by all personnel at the scene; and (c) provide on-the-spot guidance as required.

Metropolitan Police Department Responders

• MPD officers did not properly assess the situation upon arrival. The three responding MPD officers did not secure the scene, did not conduct an adequate preliminary investigation in accordance with MPD General Orders, and did not take adequate steps to determine if a crime had been committed. They also did not complete a report on the incident pursuant to the relevant MPD General Order.

Recommendations

1. That MPD immediately review and reissue the pertinent General Orders relating to officer responsibilities at emergency incidents. In addition, MPD should consider implementing or revising as necessary a quality assurance program that includes supervisory review of required reports, and a tracking system to ensure that reports are written and retrievable for every call.

2. That MPD assign quality assurance responsibilities to the senior officer responding to each call. Fire and Emergency Medical Services Department Ambulance 18

• EMTs did not follow applicable rules, policies, and protocols. The highest-trained EMT, an EMT-Advanced, was not in charge of the patient as required by protocol. The EMT-Advanced did not assess the patient, or help her partner assess him. Neither EMT adequately questioned the first responding firefighter/EMTs about the patient's vital signs, or other care and treatment. The patient's low Glasgow Coma Scale results were disregarded, and not brought to the attention of Howard Emergency Department personnel.

The ambulance did not arrive on the scene expeditiously. The ambulance driver got lost after being dispatched from Providence Hospital, and then did not take a direct route to Gramercy Street. This error added 6 minutes to the trip. (See Appendix 2)

• EMTs did not thoroughly assess the patient. The EMT who assessed the patient failed to conduct all of the required assessments, and did not fully document his assessment and treatment on the FEMS 151 Run Sheet. (See Appendix 3)

• Transport of the patient to the hospital did not follow FEMS protocol. EMTs are required to transport patients to the "closest appropriate open facility." Although Ambulance 18 was closest to Sibley Hospital, the EMT in charge, for personal reasons, decided to transport the patient to Howard. Howard is 1.85 miles further from Gramercy Street than the Emergency Department at Sibley Hospital. (See Appendix 4)

• EMTs did not properly document actions. The EMT who cared for the patient did not completely fill out the FEMS 151 Run Sheet. For example, the form shows no times when treatment, care, or testing was provided or performed. An entire page of the form relating to patient care was left blank.

Recommendations

1. That FEMS ensure all personnel have current required certifications prior to going on duty.

2. That FEMS take steps to comply with its own policy on evaluating EMTs on a quarterly basis.

3. That FEMS promptly reassign, retrain, or remove poor performers.

4. That FEMS assign quality assurance responsibilities to the most highly ¬trained pre-hospital provider for each incident. This individual should: (a) have in-depth knowledge of the most current FEMS protocols and other management guidance; (b) monitor compliance with protocols and other guidance by all personnel at the scene; and (c) include the results of on-scene compliance monitoring in all reports required by management. 5. That FEMS consider installing global positioning devices in all ambulances to assist EMTs in expeditiously reaching their destinations on emergency calls.

Howard University Hospital

• Nurses did not properly triages and assess Mr. Rosenbaum. The triage nurse did not perform basic assessments and did not communicate an abnormal temperature reading. The patient was incorrectly diagnosed as intoxicated, but employees did not follow triage policy on treating an intoxicated patient. Howard's Patient Care Standards-including monitoring airway and breathing, assessing for trauma, conducting routine lab tests, and monitoring vital signs every 15 minutes-were not followed.

Recommendations

1. That Howard develop a system in the Emergency Department that will allow staff to readily identify patients' priority level while they are awaiting care.

2. That Howard consider adopting a patient records system that would enable nursing and medical staff to review documents when they are at a patient's side. The current system prevents staff access to such information in a timely manner.

Office of the Chief Medical Examiner

• The Office of the Chief Medical Examiner conducted the Rosenbaum autopsy expeditiously and promptly issued a report.

Recommendation

That Office of the Chief Medical Examiner consider using digital camera technology to photograph all autopsies. The Office of the Inspector General was unable to review requested autopsy pictures because of photo processing delays and mislaid slides.

5 The process of sorting out and classifying patients to determine the priority of needs and where a patient should be treated. Conclusion

The OIG team concludes that personnel from the Office of Unified Communications properly monitored the 911 call from Gramercy Street and immediately dispatched adequate resources to respond to the emergency. However, FEMS, MPD, and Howard personnel failed to respond to David E. Rosenbaum in accordance with established protocols. Individuals who played critical roles in providing these services failed to adhere to applicable policies, procedures, and other guidance from their respective employers. These failures included incomplete patient assessments, poor communication between emergency responders, and inadequate evaluation and documentation of the incident. The result, significant and unnecessary delays in identifying and treating Mr. Rosenbaum's injuries, hindered recognition that a crime had been committed.

On January 6, 2006, David E. Rosenbaum consumed alcohol, both before and during dinner prior to leaving home for a walk. Neighbors discovered Mr. Rosenbaum lying on the sidewalk in front of their home and called 911. Upon assessment, emergency responders concluded that Mr. Rosenbaum's symptoms, which included poor motor control, inability to speak or respond to questions, pinpoint pupils, bleeding from the head, vomiting, and a dangerously low Glasgow Coma Scale, were the result of intoxication. Hospital laboratory and other tests, however, confirmed that Mr. Rosenbaum's symptoms were caused by a head injury. Emergency responders' approach to Mr. Rosenbaum's perceived intoxication resulted in minimal intervention by both medical and law enforcement personnel.

FEMS personnel made errors both in getting to the scene and in transporting Mr. Rosenbaum to a hospital in a timely manner. Ambulance 18 did not take a direct route from Providence Hospital to the Gramercy Street incident. In addition, for personal reasons, the EMTs did not take the patient to the nearest hospital. As a result of that decision, it took twice as long for Ambulance 18 to reach Howard than it would have taken to get to Sibley Hospital. Once FEMS personnel at the Gramercy Street scene detected the odor of alcohol, they failed to properly analyze and treat Mr. Rosenbaum's symptoms according to accepted pre-hospital care standards. Failure to follow protocols, policies, and procedures affected care of the patient and the efficiency with which the EMTs completed the call. In addition, FEMS employees' failure to adequately and properly communicate information regarding the patient affected subsequent caregivers' abilities to carry out their responsibilities.

MPD officers initially dispatched in response to the Gramercy Street call failed to secure the scene, collect evidence, interview all potential witnesses, canvass the neighborhood, conduct other preliminary investigative activities, or properly document the incident. Both FEMS and MPD failures were later compounded by similar procedural failures on the part of Howard Emergency Department personnel, who also initially believed Mr. Rosenbaum's condition to be the result of intoxication.

Upon Mr. Rosenbaum's arrival at Howard, Emergency Department personnel failed to properly assess his condition and failed to communicate critical medical information to each other, thereby delaying necessary medical intervention, all in violation of Howard's own patient care standards. Further, a number of Emergency Department staff members passed Mr. Rosenbaum in the hallway and neglected to provide clinical and therapeutic care.

The Office of the Inspector General's review indicates a need for increased oversight and enhanced internal controls by FEMS, MPD, and Howard managers in the areas of training and certifications, performance management, oral and written communication, and employee knowledge of protocols, General Orders, and patient care standards. Multiple failures during a single evening by District agency and Howard employees to comply with applicable policies, procedures, and protocols suggest an impaired work ethic that must be addressed before it becomes pervasive. Apathy, indifference, and complacency-apparent even during some of our interviews with care givers-undermined the effective, efficient, and high quality delivery of emergency services expected from those entrusted with providing care to those who are ill and injured.

Accordingly, while the scope of this review was limited, these multiple failures have generated concerns and perceptions about the systemic nature of problems related to the delivery of basic emergency medical services citywide. Such failures mandate immediate action by management to improve employee accountability. Specifically, we believe that several quality assurance measures may assist in reducing the risk of a recurrence of the many failures that occurred in the emergency responses to Mr. Rosenbaum: systematic compliance testing, comprehensive and timely performance evaluations, and meaningful administrative action in cases of employee misconduct or incompetence.