EMTALA update - What’s changed and what hasn’t – Part I

Gerard X. Brogan, Jr., MD FACEP, Director, Department of Emergency Medicine, North Shore University Hospital at Plainview

CMS has recently issued updated EMTALA regulations that went into effect November 10, 2003. This document represents clarifications of exiting EMTALA guidelines more than new or additional regulations. There are several issues that are particularly pertinent to the practicing emergency physician.

On-call
The new EMTALA update states “each 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 to the resources available to the hospital, including the availability of on-call physicians. CMS will consider all relevant factors including: the number of physicians on staff, other demands on these physicians and the frequency in which the hospital’s patients typically require services of on-call physicians, and the provision the hospital has made for situations in which a physician and the specialties not available when the on-call physician is not able to respond. We will continue to investigate such situations or response to complaints and will take the appropriate action if the level of on-call coverage is unacceptably low. We further note that physicians who practice in a hospital do so under privileges extended to them by those hospitals and that hospital facing a refusal by physicians to assume on-call responsibilities or to carry out the responsibilities they have assumed could suspend, curtail or revoke the attending physician’s practice privileges”.

While this regulation is more similar than not to previously published regulations, many have interpreted this as a “softening” of the on-call requirement. Previous regulations require that all specialties and sub-specialties that are available to inpatients must be available on the on-call list or acceptable alternative provisions must be in place. In addition, hospitals will be required to meet the needs of the community as currently required by the Medicare Conditions of Participation requirement. This provision obviously leaves room for interpretation as to exactly what services must be available by on-call physicians vs. available by transfer or other provisions to provide the appropriate level of care. Unfortunately, as many sub-specialists are on staff at multiple institutions and may, in fact, be taking call at multiple institutions on any given night, the threat of being removed from the medical staff, or having privileges suspended may, in reality, not carry the weight that is intended by CMS.

It has been suggested that the exact requirements for on-call coverage including the types of cases that would be covered by the on-call physician be prospectively described in medical staff rules and regulations. In addition, hospitals would be best served by having pre-defined transfer agreements for all clinical areas not covered by the hospital on-call physicians list.

Separate privileges
Fortunately, the most recent EMTALA guidelines do state that on-call physicians cannot limit the scope of their practice based on arbitrary decisions. For example, an orthopedist on-call cannot determine that he or she takes care of hips but not knees. In addition, CMS commented that it is the ED physician’s determination that on call is needed that determines the need for the on-call physician to respond, not vice-versa.

On-call responsibilities
The updated EMTALA regulations do allow for physicians to be on call at multiple hospitals at the same time. It also allows for physicians to schedule private practice patients/procedures/surgeries as long as the hospital is aware of the above and has adequate backup call or transfer procedures in place. This is more a clarification of the previous EMTALA positions than a new regulation. The physician must respond unless previously committed to an emergency at another facility. The more recent set of guidelines does clarify the procedure that should be followed in the event that a physician on call is required at a site while being involved in caring for a patient at an alternate site. Specifically, the new guidelines allow for a non-emergency elective procedure to be legitimate reason for being unable to provide on-call care. The on-call physician is allowed to finish the scheduled procedure but is not allowed to begin another elective procedure/surgery without addressing the on-call request. In other words, hospitals must have a backup plan in place for both clinical services that do not have an on-call physician or on-call list as well as for those services for which there is a physician on-call who may be involved in another procedure. In many respects, this provision complicates matters for the ED and has the potential to delay emergency care.

Use of mid-level providers
The new EMTALA guidelines state that the physician must be listed as the on-call person for the particular clinical service, not a PA or NP. However, they state that at times it may be appropriate for the PA or NP to respond to the ED call. This determination must be made on a case-by-case basis. The ED physician must approve the response of a PA or NP. It is critically important for the ED physician to know that EMTALA places the final authority for the physician’s need to respond with the ED physician, or other qualified medical provider who has actually seen and examined the patient. In addition, state health laws and local hospital privileges may also effect how PAs or NPs may be used on the on-call schedule. It is important to emphasize that it is the ED physician’s determinations as to whether the PA or NP responding for the on-call physician is appropriate.

Hospital duty to accept EMTALA transfer
In the past, there were arguments between hospitals regarding the definition of an in-patient. As EMTALA terminates at admission, there were questions regarding patients admitted but still requiring stabilization and how EMTALA could or would apply to that situation. The recent guidelines attempt to clarify “inpatient” status. The admitted patient is one who is intended to occupy an inpatient bed overnight in the facility. A patient who has been admitted for stabilizing care with the intent to transfer are not inpatients and could be considered for the purposes of EMTALA similar to ED patients regardless of the bed that they occupy. The current guidelines do state that hospitals cannot admit patients for the purposes of evading EMTALA. There needs to be a legitimate expectation that the patient will be an inpatient overnight. However, it is important to differentiate other comments made by CMS that specifically address the issues of patients admitted to the hospital awaiting a bed who are still boarding in the ED. EMTALA issues do not apply in situations where patients are boarded in the ED while awaiting an inpatient bed.

In Part II, specific situations as they relate to: outpatient testing and scheduled visits in the ED; ambulance issues and emergency operations/disaster will be covered.