AAOS Bulletin - October, 2006

Addressing emergency care at the Federal level

The EMTALA TAG ensures that CMS hears physicians’ voices

By Kathryn Pontzer, JD

The Emergency Medical Treatment and Active Labor Act Technical Advisory Group (EMTALA TAG) is the result of a successful lobbying effort by AAOS, along with other specialty societies. Physicians, concerned that regulations and interpretive guidelines developed by the Centers for Medicare and Medicaid Services (CMS) are confusing and inconsistent with the intent of legislation governing emergency care, believed that it was critical for the Secretary of Health and Human Services to seek advice from an organized group with broad representation, especially from the medical specialties. AAOS member James V. Nepola, MD, is one of 19 appointees to the TAG.

Purpose of the TAG
The purpose of the EMTALA TAG is to seek advice from the public and to suggest improvements and further clarifications to regulations and guidelines affecting hospital and physician responsibilities under EMTALA. Because the TAG is an advisory body, CMS is not obligated to accept its recommendations.

The TAG convened the first in a series of meetings in March 2005. The meeting focused on defining the issues the group should address. AAOS, as well as other physician groups, was invited to participate. Since then, some of the issues have already been positively addressed by CMS. Included among these:

  • Oppose mandatory call—CMS agreed that a TAG recommendation against requiring physicians to take emergency call as a condition of participation in Medicare is consistent with current policy.
  • Specialty hospital obligations—CMS agreed that a hospital with specialized capabilities or facilities should not be required to maintain an emergency department. However, CMS iterated that this does not preclude a hospital without a dedicated emergency department from accepting an appropriate emergency transfer if the hospital has the capacity to treat the individual.

Current recommendations
At its May 2006 meeting, the TAG submitted several additional recommendations to CMS. As of this writing, CMS has not yet responded to these recommendations.

  • Specialty status at a transfer hospital—The TAG is recommending that CMS guidelines clarify that simply having a specialty physician on a call roster is not enough to consider a hospital as having specialized capability to accommodate a patient transfer. Other issues that must be considered include the availability of necessary equipment, space and other staff. Additionally, the presence of a physician who has privileges at the receiving hospital, but is not on the call roster or is not on call at the time of the transfer, should not be considered a specialized capacity.
  • Response time—Currently, hospitals are required to state expected physician on-call response time in specific minutes. The TAG recommends that CMS guidelines permit stating response times in a range of minutes, allowing the initial response to occur by phone, and permit hospital bylaws to specify who can respond for the physician, including designated representatives.
  • Selective call—The TAG is asking CMS to clarify the concept of “selective call.” The TAG would like the following concepts to be included: Physicians who take call for patients with whom they have a preexisting medical relationship should not be considered as taking “selective call;” physicians who are in a hospital should not be obligated to take call if they are not on the call list; physicians on call must see all patients, regardless of the patient’s ability to pay; and physicians who volunteer to see emergency patients while not on call must be willing to take all patients, regardless of the patient’s ability to pay.
  • Shared community call—The TAG is recommending that CMS clarify its position on shared community call. The TAG would like CMS to acknowledge that such community arrangements are acceptable if the hospitals involved have formal agreements recognized in their policies and procedures, as well as back-up plans. The TAG also wants CMS to clarify that a community call arrangement does not remove a hospital’s obligation to perform a medical screening examination.

Future considerations
The TAG has identified several future meeting agenda items, including the following:

  • Obligations beyond EMTALA, follow-up care—Although EMTALA has never guaranteed follow-up care and hospitals have no obligation beyond discharge, questions remain as to what constitutes appropriate discharge and how to handle patients who require follow-up treatment. Medical societies and others have asked whether EMTALA implies an obligation to provide follow-up care and how the Medicare Conditions of Participation relate to follow-up care for EMTALA patients.
  • Appropriate transfers—Issues surrounding appropriate and inappropriate transfers of patients from one hospital to another have been discussed. The TAG believes that CMS should clarify the patient populations that are covered by EMTALA and the responsibilities of both the transferring and receiving hospitals. Specific points that will be discussed in future TAG meetings include whether distance limits should be imposed between hospitals and whether hospitals should be bound to accommodate patients after they have reached capacity if they have done so in the past.

The TAG is also developing papers on EMTALA-related issues such as reimbursement and medical liability. Although these areas are beyond the scope of the TAG and beyond EMTALA jurisdiction, TAG members believe it is important to point out the need for larger systemic changes.

The reimbursement paper will explore mechanisms for compensating on-call services, such as linking reimbursement to the existing Medicare Current Procedural Codes for providing care on nights, weekends or holidays, prohibiting retrospective denial of reimbursement from private payers for EMTALA-mandated care and creating incentives through tax relief proposals. In the medical liability area, the TAG will explore expanding the protected health care services under the Federal Tort Claims Act and examine model state approaches.

Future meetings may also address EMTALA guidelines on hospital diversion status, patient protocols for inquiring about health insurance and continuing education requirements for those responsible for overseeing compliance with EMTALA. For more information, visit http://www.cms.hhs.gov/FACA/07_emtalatag.asp

Kathryn Pontzer, JD, is deputy director of the AAOS Washington office. She can be reached at pontzer@aaos.org

Requirements for successful orthopaedic trauma services in community hospitals and academic health centers

Editor’s Note: The following list was developed by the Orthopaedic Trauma Association (OTA) as part of “Orthopaedic trauma care: A fundamental framework for physicians and hospitals to deliver responsible and cost-effective care.” Although developed with the orthopaedic traumatologist in mind, much of the content is applicable to any orthopaedist who takes call and provides emergency care services. The information is reprinted with the permission of the OTA.)

  1. Emergency operating room (OR) access 24/7/365 days a year
  2. OR availability to the orthopaedic trauma service Monday through Saturday 7 a.m. – 5 p.m. The orthopaedic trauma surgeon may give up the room to other services if no cases are scheduled.
  3. Orthopaedic OR nurse staff lead responsible for organizing implants, instruments and OR tables, etc.
  4. One physician assistant per orthopaedic trauma surgeon full-time equivalent
  5. Reliable, functioning image intensifiers in adequate numbers to match orthopaedic trauma surgery volumes; well-trained radiology technicians assigned to the OR in corresponding numbers
  6. Funded call support coverage
  7. Available implant systems for intramedullary nailing; external fixation; small, mini and large fragment plating systems; specialized plating systems and arthroscopy equipment
  8. Support for a research coordinator assigned to orthopaedic trauma research in Level I and Level II centers that corresponds to the patient volumes for orthopaedic trauma service
  9. Support for orthopaedic trauma surgeon continuing medical education (CME)—travel and course fees
  10. Clinic facilities to follow patients after discharge with adequate X-ray capacity, nurse staffing and wheelchair/stretcher access
  11. Commitment from Emergency Room medical leadership to increase orthopaedic injury triage capabilities, such as the capability to send X-ray images electronically to the orthopaedic surgeon covering call

In exchange for those resources provided by the hospital, the orthopaedic trauma surgeon director will provide

  1. Quality assurance direction and leadership
  2. Responsibility for call schedule coverage
  3. Commitment to limit variation in orthopaedic implant use
  4. CME leadership for OR nursing, staff doctors, floor nurses and clinic staff
  5. Regular review of fiscal impact of the service with hospital administration

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