OnCall Practitioners and EMTALA

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On-Call Practitioners and EMTALA
Iowa Health System Community Network EMTALA
Nancy Ruzicka Iowa Health System Law
Department November 19, 2007
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Statutory Obligation of Hospitals

• It is a requirement of participation in the
  Medicare program to maintain a list of physicians
  who are on call for duty after the initial exam
  to provide treatment necessary to stabilize an
  individual with an EMC. 42 C.F.R. Section
  489.20(r)(2)

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2003 Regulations On-Call

• Hospital must maintain an on-call list of
  physicians on its medical staff in a manner that
  best meets the needs of the hospital's patients
  who are receiving services required under this
  section in accordance with the resources
  available to the hospital, including the
  availability of on-call physicians.
• This provision backs off of prior CMS guidance
  that on-call list must reflect that services
  available on a nonemergency basis.

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2003 Regulations On-Call (cont.)

• Simultaneous Call for other Hospitals
• All affected hospitals must be aware of the
  physicians simultaneous call responsibilities
• Each hospital must be aware of its separate
  EMTALA obligation regardless of this arrangement

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2003 Regulations On-Call (cont.)

• Scheduled Elective Procedures while On-Call
• This is also a matter of policy for each hospital
• Each hospital must decide how to meet its EMTALA
  obligations by managing on-call coverage in a
  manner that maximizes patient stabilizing
  treatment as efficiently and effectively as
  possible

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2003 Regulations On-Call (cont.)

• Hospitals must have policies and procedures in
  place
• To respond to situations in which a specialty is
  not available or the on-call physician cannot
  respond for any reason
• To provide that emergency services are available
  to meet the needs of patients with emergency
  medical conditions if it permits on-call
  physicians to schedule elective surgery while
  on-call or if it permits on-call physicians to
  have simultaneous on-call duties

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CMS Interpretive Guidelines

• The on call list ensures the ED is prospectively
  aware of which physicians are available to
  provide care, including specialists and
  subspecialists.
• The capacity of the ED includes its on call
  physicians.
• This is important for determining what transfers
  a receiving hospital must accept.

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CMS Staffing through On-Call List

• CMS has no requirements on the frequency a
  physician must serve on-call.
• No pre-determined ratio for how many days a
  hospital must have on-call staffing in light of
  the number of physicians in that specialty.
• There is no rule of thumb requiring 100
  coverage for specialties with three physicians.
• On call coverage should be within reason
  depending on the of physicians in specialty
• No physician is required to be on call at all
  times

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CMS Staffing through On-Call List

• CMS will consider all relevant factors
• Number of physicians on staff
• Other demands on these physicians
• Frequency with which the hospitals patients
  typically require on-call services
• Vacations, conferences and days off
• Provisions for situations in which the specialty
  is unavailable or physician unable to respond

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CMS Staffing through On-Call List

• On call coverage is a decision to be made by
  administrators and physicians.
• Each hospital has discretion to maintain the on
  call list in a manner to best meet the needs of
  the hospitals EMTALA patients, in accordance
  with the resources (including availability of on
  call physicians
• Best practice is to make services available to
  the public generally, available through on call
  coverage of the ED

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CMS On-Call Practicalities

• It is the decision of the treating physician in
  the ED whether the on call physician must assess
  the patient in the ED
• His/her ability/medical knowledge of the
  particular medical condition will determine
  whether the on-call physician must come
• This is important in managing demand for mental
  health services/admission to mental health unit

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CMS On-Call Practicalities

• On-call physician must come to the hospital upon
  request by EDP or QMP
• Not acceptable to send emergency patient to
  on-call physician in his/her private clinic
• Contrast this to CMS IG statement that patients
  may be discharged to private clinics following
  MSE determining no EMC Thats different

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Transfer to Private Clinic

• 2004 CMS Interpretive Guidelines
• Stable patients may go to private clinic for
  follow up after MSE finding of no EMC
• Practice pointer
• Stability must be based on objective clinical
  observations, well-reasoned and documented and
  consistent with legal definition

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CMS On-Call Practicalities

• EDP may send patient to another department of the
  hospital (which may include an on-call
  physicians office) this is not a transfer
• Movement of ED patient to another hospital
  department will be surveyed for whether
• All persons with same medical condition are moved
  under same circumstances regardless of ability to
  pay
• Bona fide medical reason for moving patient
• Appropriate medical personnel accompany patient

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CMS On-Call Practicalities

• If on-call physician repeatedly or typically
  directs the patient to be transferred to another
  hospital where he/she can treat the patient, the
  physician may violate EMTALA
• Surveyors are to consider patient needs and
  physician circumstances each case viewed on its
  merits

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On-Call Practicalities

• CMS Physicians must not accept calls selectively
  while on-call
• Medical staff must pursue aberrations through
  performance improvement and/or disciplinary
  action
• It is dangerous for physicians (even those who
  are the only physician in specialty) to resist
  establishing an on-call schedule
• How does one show when he/she was not on call so
  that it was appropriate to refuse to see patient?
• ED staff may tell surveyors that he/she is always
  on call

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Problem Cherry Picking

• On-call practitioner reviews all cases
  prospectively and then informs ED whether he/she
  is interested in accepting the case
• Appears to transfer difficult or low fee cases
  without regard to "in house" capability
• Acceptance of case appears to depend upon
  physician convenience and/or compensation

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CMS On Call Practicalities

• On call list must contain physician names
• Not group names or answering service
• Call list must list physicians, but physicians
  may rely upon mid-level practitioners for first
  call if hospital policy permits
• On-call physician is ultimately responsible
  regardless of who responds to call

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CMS On-Call Practicalities

• Hospitals that cannot maintain full-time on-call
  coverage in specific medical specialties should
  advise local EMS of times when such services will
  not be available

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On-Call Physician Obligations

• If requested to come to the hospital, the on-call
  physician must come within a "reasonable period
  of time.
• CMS Interpretive Guidelines require a numeric
  response time in policies
• Prompt and reasonable are not enforceable by
  hospital and therefore inappropriate
• Documentation must include time of notification
  and response

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On-Call Physician Obligations (cont.)

• Generally, 30 minutes or less for time-sensitive
  specialties and no more than 60 minutes
• CAH CoPs require Physician, PA or NP to be
  available on-site within 30 minutes, but allow RN
  MSE

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On-Call Physician- Mandatory Reporting of
Violations

• If on-call physician fails or refuses to respond,
  resulting in a transfer of the patient, the
  hospital is required to report the name and
  address of the on-call physician to receiving
  facility
• This will likely trigger mandatory reporting by
  the receiving facility of a suspected violation
  by the transferring facility

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Mandatory Reporting

• Receiving facilities are required to report to
  CMS or state survey agency any suspected
  violation of EMTALA by a transferring facility
• Hospitals will be cited for failure to report
  within 72 hours of receipt of violative transfer

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Transfers A Receiving Facility Must Accept

• A hospital with specialized capabilities or
  facilities (shock-trauma units,NICUs, regional
  referral centers,burn units)
• Must accept transfers from US hospitals of
  individuals requiring such special services, if
  the receiving hospital has the capacity to treat
  the individual

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Reverse Patient Dumping

• St. Anthony Hospital v. US DHHS, 309 F.3d 680
  (10th Cir. 2002)
• Reverse-dumping occurs when a hospital refuses
  to accept an appropriate transfer of a patient
  requiring its specialized capabilities

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Reverse Patient Dumping (cont.)

• DHHS Departmental Appeal Board had imposed
  35,000 in civil money penalties upon St. Anthony
  for violating EMTALAs reverse-dumping
  provision
• RM was injured in a single car accident and taken
  to Shawnee Regional Hospital in Shawnee, OK

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Reverse Patient Dumping (cont.)

• RM required thoracic surgery there was no blood
  flow to the lower extremities
• Transfer was arranged to University Hospital in
  Oklahoma City, but University called back and
  disavowed acceptance because two emergency
  surgeries had arrived in the meantime

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Reverse Patient Dumping (cont.)

• The Shawnee EDP called St. Anthony seeking
  acceptance of transfer
• St. Anthony refused to accept transfer, advising
  that its on-call thoracic surgeon was not
  interested in taking RMs case

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Reverse Patient Dumping (cont.)

• RM was ultimately transferred to Presbyterian
  Hospital in Oklahoma City
• Revascularization of R.M.s lower extremities
  failed he had a bilateral amputation above the
  knees several days later and subsequently died

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Reverse Patient Dumping (cont.)

• The 10th Circuit found that if St. Anthonys were
  allowed to refuse to accept patients requiring
  specialty services, it would nullify the
  statutory requirement that hospitals accept such
  transfers if they have capacity

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Reverse Patient Dumping (cont.)

• The Court reiterated that St. Anthonys nineteen
  surgical suites were unoccupied, it had the
  equipment to do the necessary surgery and a
  physician was on-call
• A facility with specialized capabilities must
  accept transfer of a patient requiring those
  capabilities from any facility that lacks them,
  if the receiving facility has the capacity to
  treat the patient and the patient is in EMC

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Hospitals and Medical Staffs Must Develop
Institutional On-Call Philosophy

• Hospitals generally wish to optimize on-call
  coverage to 100 in all specialties in order to
  reduce need for transfer
• This objective may be at cross-purposes with
  maintaining coverage (voluntary or otherwise) and
  EMTALA compliance
• Exhausted/frustrated physicians make mistakes
• Demands on medical staff (including employed
  staff) must be reasonable

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Hospitals and Medical Staffs Must Develop
Institutional On-Call Philosophy

• Recognize that on-call for inpatients/private
  practice is not the same as on-call for ED
• EDPs have discretion in need for on-call
  physicians to physically assess the patient
• Consultation by phone may be sufficient
• Most EDPs have a strong sense of when to require
  on-call to come and assess patient
• This is necessary to maintaining credibility and
  an effective system

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Compensation for On-Call CoverageCompliance
Issues

• Stark and Anti-Kickback laws do not allow
  compensative of physicians except at FMV
• Each such arrangement must be in writing and
  comply with a Stark exception, and should comply
  with an Anti-Kickback safe harbor
• Cottage industry for valuation of On-Call
  Coverage Compensation
• Questions re FMV and compensation should be
  directed to Eric Schwarz