Taking Calls

EMTALA Changes Allow Simultaneous On-Call Status

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Law Feature -- May 2004

By Walt Borges
Associate Editor

In the 14th century, Chaucer wrote that idle hands are the devil's tools. The idle hands of 21st century physicians on call at hospital emergency rooms may not be Old Scratch's, but they sure don't help pay the bills in an era of falling reimbursements and increasing overhead.

Recent changes in the Emergency Medical Treatment and Active Labor Act (EMTALA) should put the hands of on-call surgeons and other physician specialists back to work.

Adjustments to EMTALA regulations made by the Centers for Medicare & Medicaid Services (CMS) in September 2003 permit doctors to take calls at several hospitals at the same time. They also allow physicians to perform elective surgery while on call, so long as the hospital has written protocols governing the handling of an emergency room patient if the on-call specialist is unavailable. And, hospitals are not required to have around-the-clock coverage for all specialty care provided there.

"The revisions were more a clarification of the existing regulations than a change in the ground rules," said David Teuscher , MD, an orthopedic surgeon in Beaumont. "It has been entirely unclear how the EMTALA regulations should be interpreted.''

He says the modifications bring sanity and common sense to the EMTALA regulations.

"Do we want thousands of orthopedic surgeons and other specialists across the country sitting around on call doing nothing, or do we want the physicians to be simultaneously on call and providing care to patients?"

But Doug Carmichael, MD, chair of the Texas Medical Association's Committee on Emergency Medical Services and Trauma, says there's a downside to new rules.

"The EMTALA changes have accelerated the dissatisfaction of emergency room physicians with the law," said Dr. Carmichael, an Austin emergency specialist. "There is a concern that we specialists won't be available when we need them."

Dr. Carmichael cited an incident in Austin in which no plastic surgeon was available to reattach a patient's severed finger. The patient had to be transferred to Houston for the procedure.

"We end up shifting patients to major hospitals that have all the specialties covered," he said. "But that often means we end up shifting patients to hospitals that are already overcrowded and understaffed."

Linda Weld, RN, director of regulatory and accreditation at Parkland Memorial Hospital in Dallas, believes Parkland already is feeling the impact of the EMTALA revisions. She says transfers increased after the EMTALA regulations took effect last fall.

"Incoming transfers for trauma services are up this year," she said. "Part of the increase may be attributable to trauma going up, but part of the cause has to do with physicians not being available at other hospitals."    

On Call or Not?

Dr. Carmichael says on-call arrangements can dominate a doctor's life in smaller cities and towns that have only one or two specialists.

"In Brownwood, a town of 23,000, there were only two surgeons for many years. That meant one or the other was always on call. For decades, we relied on physicians like them to provide for their communities, and they accepted that responsibility. But with financial and liability pressures of on-call work facing doctors today, some are reconsidering," Dr. Carmichael said. 

In most emergency rooms, on-call specialists are needed to help stabilize patients, he says. Doctors hesitate to join on-call panels because of poor compensation. For all but the top tier of hospitals -- the Level 1 trauma facilities -- reimbursement for on-call specialists is minimal or nonexistent.

Another negative factor is the high volume of patients. "Physicians incur extra liability when they see emergency room patients," Dr. Carmichael said. Although physicians cannot be sued for violating EMTALA, they may face medical liability suits under state law if they provide poor care while on call.

In June 2001, a U.S. General Accounting Office (GAO) report on EMTALA enforcement found a growing reluctance among physicians to join on-call panels.

"Hospital and physician representatives told us that uncompensated care associated with complying with EMTALA has contributed to a decline in the number of physicians willing to serve on emergency department on-call panels," GAO reported. "They said that some physicians completely avoid participating in the on-call panel."

Some specialists are reducing the number of procedures they are credentialed to perform or are not seeking privileges at hospitals to avoid being on call, the GAO said. It concluded that fewer medical services are available at some hospitals as a result.

Other factors affect physicians' willingness to serve as on-call physicians, the GAO noted. "In the past, physicians in certain specialties had inducements to join hospital staffs and provide on-call services," it explained. The specialists depended on hospital surgical facilities to perform procedures, and they needed emergency room patients to build their practices.

"Today, however, they can perform many procedures in outpatient settings and gain patients through managed care networks, resulting in fewer advantages to balance the inconveniences of serving on call," the GAO said.

GAO also recognized growing confusion about how the on-call provisions should be interpreted. CMS officials cited the report among the reasons for revising the regulations, as well as two federal appellate decisions that raised questions about CMS's interpretations of EMTALA.

TMA lawyers said in March that it was too early to tell if the changes impacted physicians' willingness to take call.

EMTALA in a Nutshell

Congress passed EMTALA in 1985 to curb transfers of patients needing emergency care because of news reports that some hospitals were "dumping" uninsured emergency room patients to avoid the cost of treating them. The law requires emergency room personnel to stabilize patients with emergency conditions, and permits transfer of patients only in limited circumstances.

Patients can sue hospitals -- but not physicians -- for violating the law. An on-call physician who fails to answer an emergency room call within a reasonable time period can be fined up to $50,000 per incident. The doctor also can be excluded from Medicare and other federal health care programs.

However, if another physician orders a transfer because an on-call physician fails to appear, the doctor ordering the transfer is not subject to EMTALA penalties.

EMTALA is not a liability statute, TMA lawyers point out. It requires hospitals and physicians to provide care, but it does not specify the quality of that care. State laws, not EMTALA, provide redress for poor care in Texas.

The EMTALA revisions overturn the so-called Rule of Three, which many hospitals adopted to ensure adequate emergency room coverage by specialists. Under the rule, hospitals with three physicians in a specialty were required to maintain on-call coverage 24 hours a day, seven days a week.

CMS declared that the rule doesn't actually exist in the law. It said there is no predetermined number of physicians that invokes a requirement of "24/7" coverage. The law will now be interpreted to let each hospital and its staff physicians determine the necessary coverage.

EMTALA only requires a hospital to maintain an on-call list of physicians on its staff that best meets its patients' needs. The hospital's capabilities, including the availability of on-call physicians, may be taken into consideration when designing a coverage plan. A hospital need not have 24-hour coverage for all specialties it offers during regular hours.

The revisions also allow physicians to take simultaneous call at different hospitals, providing that each hospital creates a written protocol governing situations in which the specialist is summoned by both hospitals.

Dr. Teuscher says simultaneous call, sometimes termed "city call," does not create problems in Beaumont,  where the two hospitals are located a couple of miles apart. Simultaneous call in cities such as Dallas, with seven major hospitals scattered across the city, is more problematic, he says.

He likes the changes because they provide an opportunity to minimize his downtime. Like most on-call specialists, Dr. Teuscher is not paid for on-call work. Under the old regulations, he lost income when he could not perform procedures during his hours on call. Instead, Dr. Teuscher arranged office visits with patients. Thus, no critical procedure was disrupted if he was summoned to the hospital.

But he remains wary of the revisions that permit him to schedule elective surgeries while on call. The revisions seem to require local hospitals to have at least two specialists available to take emergency calls. "It appears to be an unfunded mandate to provide for double coverage," he said.

Ernest Stroupe , MD, a Tyler emergency medicine specialist and member of the TMA emergency services committee, says allowing on-call doctors to perform elective surgery confirms a practice that has been allowed in many areas. "Doctors have been doing that for a long time," he said.

Will They Pay?

Dr. Carmichael predicts hospitals will consider compensating on-call physicians or arranging for hospital-based physicians to cover in their specialties.

One possible source of physician compensation is the surcharge added to traffic fines levied against violators who had a certain number of previous infractions. The 2003 Texas Legislature designated funds generated by the surcharge for use in state-designated trauma centers.

Texas Hospital Association and TMA trauma medicine experts met March 22 to discuss how those funds would be divvied up, but failed to agree on whether on-call trauma specialists could be compensated through the fines.

"What you now have is a conflict between hospitals and their on-call physicians." Dr. Carmichael said.

Pay for on-call specialists is an issue among hospitals and physicians in San Antonio. The San Antonio Express-News reported in March that some local hospitals are paying general surgeons and neurosurgeons to take call, while others still maintain a no-pay policy. The newspaper reported that downtown hospitals often transferred stabilized emergency room patients to private hospitals in the city's north side, where more surgeons are available.

Specialists cited rising premiums for medical liability insurance and the high proportion of uninsured patients in San Antonio emergency rooms as the reasons they were reluctant to take unpaid call at local hospitals.  

Dr. Teuscher says federal and state officials need to incorporate physicians in their plans to upgrade emergency room treatment in hospitals. He said funds will be given to hospitals, but physicians must not be ignored.

"You can't have an emergency facility without on-call physicians," Dr. Teuscher said. "Perhaps a fixed percentage -- maybe one-third -- of the money should be shared with the doctors who provide emergency services."

More information on EMTALA is available on the TMA Web site.

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