New set of EMTALA guidelines addresses on-call concerns

Government memorandums approve simultaneous call and elective surgery.

By Markian Hawryluk, amednews staff. July 8/15, 2002.

Washington -- When the Centers for Medicare & Medicaid Services in May proposed clarifications and modifications to federal statutes prohibiting patient "dumping," physicians couldn't help but be a little disappointed the agency didn't address the on-call provisions. In June, CMS rectified the situation.

In a pair of program memorandums to regional administrators, the agency clarified that physicians could be on call for multiple hospital emergency departments at one time and could perform scheduled surgery while on call without violating the regulations.

Easing EMTALA
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The changes listed in the program memorandums can be implemented by regional administrators immediately.

Under the Emergency Medical Treatment and Active Labor Act, hospital emergency departments were required to maintain panels of specialists who would be on call for emergency services. However, physicians complained that hospitals' need for continual on-call services put great pressure on their private practices and forced them to leave regular patients to see emergency cases.

These factors, as well as shortages of certain specialists, led many physicians to drop some of their hospital privileges to avoid excessive on-call responsibilities. But that also left many facilities unable to secure specialists to serve on the on-call panels.

In many cases, physicians were on call to multiple facilities at the same time, despite CMS' warnings that simultaneous call violated EMTALA regulations. In the June program memorandums, CMS reversed that stance.

"After lengthy discussions with the medical community, and understanding the impact of this policy, CMS is revising its policy to allow on-call physicians to provide coverage simultaneously at several hospitals to maximize patient access to care," the CMS memorandum said.

The agency cautioned that the change does not relieve facilities of their EMTALA obligations. Hospitals must establish policies and procedures to be followed when a physician of a particular specialty is not available or if the on-call physician cannot respond, CMS said. Those policies could include backup on-call physicians or an appropriate transfer under EMTALA regulations.

The memorandum also said in cases of simultaneous call, each hospital should know the physician's on-call schedule for all hospitals involved.

In a separate letter, CMS clarified that physicians could perform surgery while on call, but should find a backup in the event they are called while performing elective surgery.

"We anticipate that [state] surveyors would recognize that physicians and hospitals need flexibility in developing a backup plan and that the backup plan needs to be developed in the best interests of the community," CMS said.

According to John C. Nelson, MD, a Salt Lake City obstetrician and AMA secretary-treasurer, EMTALA is an example of a regulation that started out with good intentions but has since "run amok." The on-call changes have helped steer the regulations back to their original goal, he said.

"The federal regulation has overstepped the original intent by a long shot," Dr. Nelson said. "The AMA has worked hard and long to erase some of the overshoot, if you will, to get it back to the original intent. And that's what has happened here."

Enough protection?

While physician groups were pleased with the announcement, many cautioned that the memorandums did not offer the same level of protection as published regulations.

"Those are strictly guidelines," said Phillip Tally, MD, a neurosurgeon from Bradenton, Fla. "We should keep this moving until we get it in stone in the Federal Register. Guidelines, as we all know from our experiences, are just that, guidelines. We can still be attacked on that basis."

Neurosurgeons have been especially hard hit by EMTALA on-call provisions. With fewer neurosurgeons than hospitals in the United States, neurosurgeons are often on call at four or more hospitals at once.

Physician concern over EMTALA surfaced at the AMA's Annual Meeting in Chicago in June. Delegates debated the creation of an EMTALA technical advisory group that could help direct CMS oversight and modification of the controversial regulations. The issue was ultimately sent to the Board of Trustees for study.

The delegates also expressed concern about anti-kickback and self-referral prohibitions and whether physicians who are being paid for being on call are in compliance.

"This is an area where attorneys are beginning to raise questions," said Brian Johnston, MD, emergency physician and board chair for the Los Angeles County Medical Assn. "In many communities, the ability to pay a physician for his or her time on call is absolutely critical to maintaining the on-call panels on which the emergency departments rely."

A wave of attention

The memorandums come on the heels of a number of EMTALA reforms. In May, CMS recommended numerous EMTALA changes as part of a proposed rule on Medicare hospital inpatient payments.

With the proposed changes, CMS clarifies that there is no requirement for continuous on-call services and to dispel the notion that a hospital must provide continuous on-call services for a specialty if it has access to three or more of those specialists.

The proposal would also allow facilities to meet managed care preapproval requirements, limit EMTALA to hospital departments that routinely provide emergency care, and allow ambulances to follow community emergency medical service protocols without violating EMTALA.

Those potential changes reflect recommendations by the Advisory Committee on Regulatory Reform, established by Health and Human Services Secretary Tommy Thompson. However, the proposal is part of a rule-making process. The comment period was set to expire on July 8, at which point HHS can make the rule final.

ADDITIONAL INFORMATION:

Easing EMTALA

The Centers for Medicare & Medicaid Services issued changes to the Emergency Medical Treatment and Active Labor Act rules aimed at easing their burden on physicians and hospitals.

June, CMS program memorandum

Simultaneous call at multiple hospitals permitted.
Physicians may perform elective surgery while on call.

May, CMS proposed rule

No requirement for continuous on-call services.
Facilities can meet managed care preapproval requirements as long as this does not delay screening and stabilization services.
EMTALA limited to hospital departments that routinely provide emergency care.
EMTALA obligations end once a screening has determined there is no emergency.
EMTALA applies to inpatients only under limited circumstances.
Ambulances may follow community emergency protocols without violating EMTALA.