[5 MIN READ]
In prior blogs, I reviewed the bare-bones of EMTALA, highlighted recent studies of EMTALA investigations, and summarized recently settled cases of EMTALA violations. In this installment, I outline the requirements of EMTALA as they relate to the role of the on-call physician.
EMTALA was passed to prevent the dumping of “non-paying” patients between hospitals. With the enactment of EMTALA, the dumping problem has diminished. The on-call physician plays a key role in patient management under EMTALA.
The “emergency medical system” depends upon emergency department access, availability of specialist physicians through the on-call roster, hospital bed and staff availability, and a referral system for tertiary or highly specialized care. The provision of these critical elements in hospitals that provide emergency care is an ongoing challenge – even 30 years after EMTALA was first enacted.
Emergency Department On-Call Physicians
Through EMTALA, Congress provided individuals in the United States with certain basic rights to medical care. The first is the right to a medical evaluation – the "medical screening examination" (MSE). If the MSE identifies a certain threshold of medical illness – an "emergency medical condition" (EMC) – the individual has the right to receive “stabilizing treatment.”
The federal government basically mandates that physicians on call to the emergency department be available to the hospital for assistance with MSEs and to provide stabilizing treatment when appropriate for patients presenting for emergency care. The on-call physician may also assist in making decisions about appropriate transfers.
There is a lot of miscommunication and misunderstanding about the on-call physician’s obligations. On-call physicians around the country recognize that they have significant risk and exposure under the EMTALA law and regulations.
Although Congress created a legal duty to provide an MSE, there was no provision for reimbursement to hospitals or physicians for the care provided. The congressional “stick” is the threat of imposing penalties: cutting Medicare funding; administrative fines for hospitals and emergency and on-call physicians; and potential civil liability for hospitals that violate the law.
EMTALA: Three Reasons for Concern
On-call physicians should be concerned about EMTALA for several reasons.
- Most importantly, Congress’s intent in passing the law was fundamentally sound. Indigent patients should not be dumped on receiving hospitals. Having said that, it is unfortunate that the law creates a federal obligation to take care of patients without a corresponding federal mechanism for reimbursement.
- If a physician violates the law, he or she may lose the right to participate in the Medicare program for "gross or flagrant or repeated violations" and may be fined up to $50,000 per violation. The monetary penalties are not paid by physician malpractice insurance policies. Also, tremendous time, energy and dollars are spent working with attorneys to prepare for administrative hearings.
- An emergency or on-call physician’s actions may expose the hospital to liability under EMTALA. If a hospital is found in violation of the law, it may lose the right to participate in the Medicare Program.
Does EMTALA Require Physicians to Take Call?
The EMTALA statute does not actually state that physicians need to take call. EMTALA states that hospitals must maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an EMC. Thus, it is the hospital that has the statutory obligation to maintain an on-call schedule.
However, the basic CMS position is that specialty and subspecialty services that are “generally available to patients at the hospital” and medical services offered to the public should be on the on-call roster. Although the law states that there must be a call roster, CMS has never clarified exactly which physician specialties and subspecialties must be on the roster.
“The purpose of the on-call list is to ensure that the emergency department is prospectively aware of which physicians, including specialists and subspecialists, are available to provide treatment necessary to stabilize individuals with emergency medical conditions.”
EMTALA Requirements for On-Call Physicians
- Any disagreement between the on-call and emergency physician regarding the need for an on-call physician to come to the hospital and examine the patient must be resolved by deferring to the medical judgment of the emergency physician or other practitioner who has personally examined the individual and is currently treating the individual.
- If a procedure is not within the current competency of the on-call physician, then at the discretion of the emergency physician, the patient can be transferred for a higher level of care.
- On-call physicians may be on call at more than one hospital at the same time. CMS states that when an on-call physician is simultaneously on call at more than one hospital in the geographic area, all hospitals involved must be aware that the on-call physician is simultaneously on call at another hospital and is not available to respond.
The On-Call Physician’s Role in Patient Transfer
Hospitals are obligated to accept transfers from emergency departments if the transferring hospital does not have the capability to stabilize an EMC and the receiving hospital does have that capability. The on-call physician is considered to be one of the “specialized capabilities” under EMTALA.
For example, if Hospital A does not have a neurosurgeon and Hospital B does, then Hospital B has that specialized capability. Upon request, if Hospital B has a neurosurgeon on call, Hospital B must accept a transfer of a patient with a neurosurgical EMC. The same is true of other physicians on the on-call schedule. If the neurosurgeon or other on-call physician refuses the transfer, the hospital is in violation of EMTALA.
If an on-call physician has been called to an emergency department to assist with screening and stabilization but the patient requires services beyond the on-call physician or hospital’s capabilities, then EMTALA requires that the patient be transferred for a higher level of care.
The Capabilities of the On-Call Physician
If the on-call physician is credentialed to provide a specific service or procedure, then he or she will be expected to provide that service as an on-call physician under EMTALA.
During reappointment, physicians should carefully scrutinize privilege lists. Consider relinquishing privileges you no longer perform or are not capable of performing so that you will not be expected to perform that service or procedure as an on-call physician under EMTALA.
Referrals from the ED to the On-Call Physician’s Office
Emergency departments often make referrals directly from the ED to a physician office; this practice is consistent with high-quality care. Under EMTALA and the Interpretive Guidelines (IGs), for such a referral to be made, an EMC should no longer exist. If an EMC is present, under EMTALA, the on-call physician is to come to the emergency department to provide stabilizing treatment.
For the physician on the on-call roster, an ounce of education may avoid a world of hurt. The key to avoiding problems with EMTALA is good communication with the hospital administration and the emergency physician.
The emergency physician and the on-call physician need to get on the same page, work with each other, agree on management, and be certain that documentation is mutually supportive.