August 2003 Bulletin

EMTALA survival guide

Know the basics–and beyond

By Robert E. Wanerman, JD, MPH

Both Congress and the Department of Health and Human Services (HHS) are in the process of substantial revisions to the Emergency Medical Treatment and Active Labor Act (EMTALA). Those revisions–which were not complete as of July 2003–will be discussed in a future Bulletin article.

EMTALA is a simple idea that is often misunderstood in practice. Much of that confusion can be traced to the design of the law, which places a significant burden on hospitals to provide screening and stabilization services, but generally does not address the fact that individual professionals who may not be hospital employees furnish many of those services. For example, many of the demands placed on orthopaedic surgeons and other specialists stem from the regulatory requirement that all hospitals maintain a list of physicians who are on-call to provide stabilizing treatment.

While it is not always possible to reduce some of the recurring questions involving the relationship between on-call specialists and hospitals down to black-and white rules, some of these questions have been clarified either informally by Centers for Medicare & Medicaid Services (CMS), or in individual cases seeking remedies under EMTALA.

Following are the answers to some common questions orthopaedists ask about EMTALA:

Isn't EMTALA a federal malpractice law?

Congress never intended to create a federal law to replace existing state malpractice law; it intended to create a separate obligation for hospitals receiving federal funds as a remedy for the practice of some hospitals that refused to accept or treat patients in their emergency rooms unless they had health insurance.

Federal courts have consistently rejected attempts to base EMTALA liability on the standard of care that typically controls negligence cases brought under state law. One federal appeals court has repeatedly stated that there is no EMTALA violation if an emergency medical condition is misdiagnosed or undetected, as long as the underlying screening process is reasonably calculated to identify the patient's condition; any remedy for a failure to diagnose or a misdiagnosis must be determined under state law.

The distinction between EMTALA obligations and negligence concepts is important, because it is unlikely that any penalties that can be imposed on a physician under EMTALA are covered under malpractice or professional liability insurance.

What do the call coverage provisions of EMTALA require?

The EMTALA regulations do require hospitals to maintain a list of physicians who are on call to provide stabilizing treatment. Beyond that, hospitals have considerable flexibility in how call coverage is provided. Some of the important factors that can be considered include:

In addition, specialists should clarify the scope of their expertise and privileges with the hospital officer responsible for maintaining the hospital's call list. For example, a hand specialist may want to provide notice that he/she does not have the requisite training or privileges to provide immediate assistance in a spine case.

If a hospital has at least three orthopaedic surgeons on staff, don't they have to provide call coverage on a 24/7 basis?

Some myths persist, even after the government expressly debunks them. In its discussion of proposed revisions to the EMTALA regulations, CMS stated that there are no ratios used to determine how many days a hospital must provide call coverage based on the number of physicians with privileges in a given specialty, and "CMS has no rule stating that whenever there are at least three physicians in a specialty, the hospital must provide 24 hour/7 day coverage."

If I am called, am I required to go to the hospital?

A specialist who fails to come in to the hospital when called can trigger individual fines and penalties under the law. CMS has not approved the practice of allowing an on-call physician to give telephone instructions to the ED staff when called and nothing more. One factor that can be overlooked in this context is that the process established by the HHS Office of Inspector General for determining the amount of a civil monetary penalty allows it to take prior offenses into account, even if they did not result in a judicially determined "violation."

EMTALA does not set a fixed response time; it only requires that an on-call physician respond within a reasonable time. However, many hospitals have developed concrete response times and written them into their medical staff by-laws or other policies. By doing so, the hospital voluntarily represents that fact to CMS and to the Joint Commission on Accreditation of Healthcare Organizations, and may be accountable for any failures to adhere to that by-law or policy.

If I am on call, does that take precedence over all other patient care?

Call obligations should be taken seriously. Although a physician who is taking call is not precluded from scheduling elective surgery, CMS has indicated that a back-up plan should be in place to cover the possibility that an emergency call is received during elective surgery. There is no guidance as to how a back-up plan should be structured beyond a generic statement that hospitals and physicians should be mindful of the interests of the community.

Are there any risks to being paid to provide call coverage?

Uncertainties over payment for call coverage are a major factor contributing to shortages of available physicians in some areas. The issue was considered so controversial that in 2000 Congress directed the General Accounting Office to study the subject and prepare a report detailing the extent to which hospitals and physicians provide uncompensated care under EMTALA, and to identify possible sources of funds to assist in defraying the cost of uncompensated care under the law. (That report has yet to be issued.)

Even though payment for call coverage would appear to be a simple solution, any such agreements should be carefully tailored to minimize risks under federal and state laws, including the anti-kickback and self-referral laws. This question is more problematic when hospital bylaws or definitions of staff privileges already include an obligation to provide call coverage.

CMS considering changes

At the present time, CMS is considering several changes to the EMTALA regulations that would rein in some of the expansive applications of the law. Nevertheless, Congress and CMS remain committed to the core requirements of EMTALA. With some advance planning, it is possible to be prepared for the law's impact on your practice.

This article is provided for informational purposes and should not be relied upon as legal advice.

Robert E. Wanerman, JD, MPH, is counsel at Reed Smith LLP, Washington, D.C. He can be reached at (202) 414-9242 or via e-mail at rwanerman@reedsmith.com.


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