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 February 2004
Understanding the Basics for HospitalsObligation to Examine, Treat, and Stabilize In January 1985, San Francisco General Hospital became the final destination for the triage and treatment of Eugene "Red" Barnes, a 32-year old unemployed mechanic who had been fatally wounded when he was stabbed in an altercation outside an abandoned hotel in Richmond, CA. An investigation into the emergency care that Mr. Barnes received prior to arriving at San Francisco General revealed a number of weaknesses in our country's emergency care safety net for the uninsured–primarily the lack of a federally mandated obligation for hospitals to examine, treat, and stabilize all patients with an emergency condition regardless of the patient's insurance coverage. Under EMTALA, this obligation is triggered when an individual comes to a hospital's dedicated emergency department or presents on hospital property and requests an examination or treatment of a medical condition or a request is made on the individuals' behalf. In the absence of such a request, EMTALA would also apply if a prudent layperson observer would believe that an individual needs examination or treatment for a medical condition. This main tenet of EMTALA has expanded and contracted over the years based on the interpretation of what constitutes a "hospital emergency department." The current regulations state that a dedicated emergency department is defined as any department of the hospital (located on or off the main hospital campus) that is: licensed by the state as an emergency department; held out to the public as providing emergency services, or has provided at least one-third of its outpatient visits for treatment on an urgent basis during the previous year.i Exceptions to this rule are individuals who come to off-campus outpatient clinics that do not routinely provide emergency services or to those patients who have begun to receive scheduled, nonemergency outpatient services at the main campus of the hospital. Once the hospital determines that the individual does indeed have an emergency medical condition, that hospital must stabilize the emergency condition, or, if it is unable to stabilize the patient, must transfer the patient to a hospital that is capable of providing such treatment. The latter aspect of this requirement was included to ensure that patients with severe injuries or very complex medical conditions are examined and triaged to the appropriate acute care facility as quickly as possible.
Physician Obligations Under EMTALAMany surgeons complain about the numerous EMTALA obligations that the federal government has imposed on the physician community. In truth, the statute does not place any direct obligations or liabilities on physicians. EMTALA focuses its mandates on hospitals or "agents of the hospital" (for example, hospital medical staff or on-call physicians). It is when they fall into the latter group that physicians come under the scrutiny of the law. If one examines EMTALA, he or she will realize that the statute maintains that the hospital, and not its medical staff or individual physicians, is responsible for maintaining an on-call roster for the emergency department. However, when physicians join the medical staff of a hospital or agree to take call, they become a "responsible physician" under EMTALA by virtue of entering into a contract with the hospital to examine, treat, and/or transfer individuals who are covered by the law.ii In doing so, they are now acting as agents of the hospital and therefore share responsibility and liability with the hospital for providing EMTALA-related services. This is true regardless of whether or not the contract references EMTALA responsibilities. Since the final responsibility for maintaining on-call coverage falls on the hospitals, the medical staff bylaws for these institutions usually include language that requires physicians to comply with hospital policies and procedures as a condition of maintaining their clinical privileges at the hospital.iii This language, which is congruent with standards issued in the Joint Commission on Accreditation of Healthcare Organizations' manual, encompasses the hospital's policy for on-call coverage. Though surgeons "voluntarily" accept their role as agents of the hospital when they secure privileges, many of them receive little training regarding the EMTALA guidelines and, thus, are often unsure of their responsibilities under the statute. This fact was illustrated in a past survey of hospital emergency departments conducted by the Department of Health and Human Services (DHHS) Office of Inspector General (OIG). In a 2001 report, OIG found that "training increases EMTALA awareness, and nearly two-thirds of emergency physicians, nurses, and registration staff receive training. However, only one-quarter of on-call specialists are trained on EMTALA guidelines."iv Since the inception of EMTALA, surgeons have found it difficult to distinguish between their responsibilities under the law versus "policy" developed by hospitals to comply with EMTALA. The following sections of this chapter examine the various issues that surgeons should be aware of when serving as an agent of the hospital, either on its medical staff or on an on-call panel. EMTALA On-Call RequirementsContinuous Call EMTALA requires that Medicare-participating hospitals maintain an on-call list of physicians to provide services to patients who seek care in hospital emergency departments. CMS has provided several memoranda and guidance documents since the original EMTALA regulations were released to help clarify various provisions of the act, including the on-call provisions. Despite the agency's attempts to clear up ambiguity, it has remained a challenge for physicians to know: what EMTALA mandates; whether hospital bylaws relating to emergency care are actually required by EMTALA; and how the law should be interpreted in specific circumstances. The most onerous, and perhaps most confusing, aspect of EMTALA for surgeons and other physicians are the on-call requirements. Hospitals, often out of fear of EMTALA violations, impose unrealistic on-call requirements on their physicians. It is not uncommon for a single specialist who covers multiple hospitals to be required, as a condition for joining a hospital's staff, to be on-call 24-hours-a-day, seven-days-a-week. In some cases, surgeons have been expected to leave their office practice activities, or even an operation, in order to respond to emergency department calls at the hospitals for which they have privileges. A "24-7" demand for on-call services creates such unrealistic schedules and unreasonable demands for surgeons and other specialists that a number of these practitioners have altered their practices, often dropping privileges at a number of hospitals, in an effort to maintain viable practices and some semblance of quality of life. Many areas of the country have an insufficient population base to support a large number of specialists in certain fields such as neurosurgery, cardiovascular services, pediatric surgery, obstetrics/gynecology, and orthopedics. This situation is especially true in rural areas and in areas that have small hospitals providing care to populations spread out over a great distance. Being selective about the day or circumstance for providing on-call services in these areas is usually not an option for these high-risk specialties. Recognizing this burden, CMS revised the on-call language to state that a hospital's on-call list must be maintained in a manner that best meets the needs of the hospital's patients who are receiving services required under EMTALA in accordance with the capability of the hospital, including the availability of on-call physicians. CMS intended this modification to provide more flexibility for hospitals and their medical staffs to determine how best to provide emergency medical care and respond to on-call needs. The agency states that these decisions can be made reasonably only at the individual hospital level through coordination between the hospitals and their staff of physicians.v CMS issued this clarification in the latest regulations because of confusion over one of the most perpetuated myths of EMTALA—the existence of the "rule of three," which states that if a hospital has more than three physicians within a specialty, it must provide continuous emergency department coverage for that specialty. CMS makes it clear that no such rule exists; however, many hospitals have developed policies based on this principle, and physicians historically have been led to believe that it is mandated by EMTALA. Some people have argued that EMTALA should require a minimum number of hours for individual physicians to be on call, the times for which physicians should be on call, or the number of physicians needed to fulfill on-call responsibilities at particular hospitals. CMS has rejected these proposals from a practical standpoint. The agency maintains that the wide variations with regard to medical staff size, specialty mix, and general capabilities that exist among institutions that participate in the Medicare program make it infeasible to mandate a particular minimum level of on-call coverage that must be maintained by all hospitals. The latest changes to EMTALA provide other specific clarifications regarding on-call requirements that are aimed at allowing hospitals and their medical staffs to develop more realistic policies and procedures to achieve the goals of EMTALA and to address critical issues that have long concerned surgeons and other physicians with regard to the regulations. Simultaneous Call Many surgeons hold privileges at several hospitals, particularly in areas where shortages of certain specialties exist. CMS has only recently established that it is critically important for the interest of patients and hospital emergency departments that physicians be permitted to be on-call at more than one hospital simultaneously.vi In updating its policy, the agency recommends to hospitals that they notify each other when a physician is on-call at more than one hospital simultaneously and that each hospital involved be made aware of the physician's on-call schedule. Furthermore, hospitals are required to have in place written policies and procedures to follow in situations when a physician is on-call at another hospital and is unable to respond. Such policies and procedures could include arranging for a back-up on-call physician or executing an appropriate transfer.vii Scheduling Elective Surgery While On-Call Performing elective surgery while on call has become an issue that surgeons struggle with in an effort to maintain their regular busy practice while fulfilling EMTALA requirements. In the past, CMS has made conflicting statements in guidelines regarding whether physicians who cannot respond to an emergency call because they are performing elective surgery have violated EMTALA. To clarify this issue, the agency now emphatically states in the current regulations that EMTALA does not prohibit surgeons from performing elective surgery while on call. This is welcome news to many surgeons who are on call for days or weeks at a time. Scope of Privileges "Many physicians limit their scope of practice to well-defined subspecialty areas, even though they are often credentialed by their hospitals to perform all surgery for the broader specialty for which they are board-certified" For example, a neurosurgeon, with limited privileges for spine surgery, would argue that he or she is not required to take call for head trauma. Surgeons should be aware that CMS addresses this issue in the current regulations and hospitals may soon begin to move toward defining core privileges for a number of specialties. CMS states that "a physician who is in a narrow specialty may, in fact, be medically competent in his or her general specialty, and in particular may be able to promptly contribute to the individual's care by bringing to bear skills and expertise that are not available to the emergency physician or other qualified medical personnel a the hospital." CMS also stresses that while the emergency physician and the on-call specialist may need to discuss the best way to meet the individual's medical needs, the agency believes any disagreement between the two regarding the need for the on-call physician to come to the hospital and examine the individual must be resolved by deferring to the medical judgment of the emergency physician or other practitioner who has personally examined the individual.viii While the new EMTALA regulations clarify that on-call coverage determinations are to be made jointly by the hospital and the physicians on its on-call roster, it is the hospitals that are put in the position of ensuring that policies and procedures are in place to provide coverage of emergency department services. In turn, physicians practice at hospitals under privileges extended to them by those hospitals. If a physician refuses to assume on-call responsibilities, or to carry out the responsibilities they have assumed, the hospital could suspend, curtail, or even revoke the offending physician's privileges. Thus, hospitals will still maintain a tremendous amount of leverage in the development of on-call policies and schedules. Despite this fact, surgeons should take solace in knowing that they now have more concrete knowledge of what EMTALA requires–an invaluable asset when: negotiating privileges with hospitals, working to maintain a viable practice, and striving to provide comprehensive emergency care in their communities. Some individuals may argue that CMS' most recent actions "relax" EMTALA standards and will endanger the safety net established by the law. Physicians believe that the clarifications made to EMTALA hold promise to have a positive impact on a situation that has been, up to the present time, increasingly unsustainable. EMTALA Reforms Included in Medicare Prescription Drug LawManaged Care Reimbursement for EMTALA-Related Services Managed care plans often require preauthorization for services delivered in the emergency room. Under EMTALA, though, Medicare-participating hospitals or physicians are barred from seeking pre-authorization before providing medical treatment unless such activities do not delay required screening and stabilization services. Thus, hospitals and physicians often wind up in a financial quandary when treating managed care patients in the emergency room -- either foregoing payment or risking the imposition of EMTALA fines. A key provision in the new Medicare Prescription Drug, Improvement, and Modernization Act (MPDIMA), which was signed into law December 8, 2003, addresses the issue of managed care plans making retrospective denials for emergency screening and stabilization services. Under MPDIMA, medical necessity determinations for EMTALA services must be made "on the basis of the information available to the treating physician or practitioner (including the patient's presenting symptoms or complaint) at the time the item or service was ordered or furnished by the physician or practitioner (and not on the patient's principal diagnosis)." Many experts in the medical community and in Congress have long advocated that managed care plans be required to pay for justifiable screening and treatment services provided under EMTALA. Hopefully, this key reform in the Medicare prescription drug law will resolve many of the disputes that hospitals and physicians often encounter with the managed care community's approach to reimbursement for emergency care services. EMTALA Technical Advisory Group Another key provision of MPDIMA establishes a new EMTALA Technical Advisory Group "to review issues related to EMTALA and its implementation." Membership in the advisory group will consist of 19 individuals, including the Administrator of CMS and the OIG of the Department of Health and Human Services. Seven slots on the advisory group are reserved for representatives from the physician community in the areas of emergency medicine, cardiology or cardiothoracic surgery, orthopedic surgery, neurosurgery, pediatrics or a pediatric subspecialty, obstetrics-gynecology, and psychiatry. The physician and hospital communities are optimistic that this new group will help CMS in its future deliberations on implementing changes in EMTALA regulations.
Issues RemainWhile the federal government has come a long way in addressing the concerns of the medical community regarding the scope of EMTALA, a number of issues remain that will continue to have an impact on access to emergency surgical care. These issues include: managed care reimbursement policies and emergency room overcrowding; proliferation of single-specialty hospitals; lack of liability protections for EMTALA-related services; and growing burdens on trauma centers and community hospitals. Managed Care Pressures While I have discussed how Congress has now addressed the issue of managed care reimbursement for EMTALA-related services, there are a number of other practices used by this industry that continue to place stress on the emergency care safety net. One such pressure revolves around patients' inability to receive timely access to specialty care in the non-hospital setting. More often than not, managed care plan enrollees, some knowledgeable about EMTALA requirements, may use the emergency room when they cannot get an appointment with their regular specialist or primary care physician. Add to this number the more than 40 million uninsured who view the E.R. as their primary source of health care and the result is massive overcrowding. This kind of non-emergent saturation of emergency room departments across the country, particularly in urban areas, is resulting in numerous injured patients being unnecessarily diverted -- causing critical delays for individuals requiring acute care. Impact on Trauma Centers and Community Hospitals While many physicians are heralding the recent changes in EMTALA's on-call requirements, others, particularly in the trauma community, are worried that these changes will further exacerbate the financial difficulties facing trauma centers and community hospitals. Under EMTALA, hospitals are now only required to maintain an on-call list "in a manner that best meets the needs of the hospital's patients in accordance with the capability of the hospital, including the availability of on-call physicians."ix Many trauma professionals believe that this change in the regulation will provide hospitals, particularly for-profit entities, with the ability to shield themselves from caring for severely injured patients by limiting on-call schedules. For example, some hospitals may only provide on-call coverage up until 9:00 p.m. every night – leaving the local trauma center as the provider of last resort. One trend that will likely grow as a result of this change will be the increased demands by specialists for hospitals to provide on-call compensation or stipends for emergency room coverage. The trauma community views this as yet another financial burden that trauma centers and community hospitals will have to bear in order to maintain their trauma designation or keep the doors of their emergency room open. Some other old and new factors that will likely influence the viability of trauma centers in the future include lack of medical liability protections for EMTALA-related services and the exploding growth of specialty hospitals in areas such as cardiac and orthopedic care. At the federal level, Congress is examining both of these issues. In terms of medical liability protection, some legislators are calling for a narrow approach to medical liability reform that would focus solely on providing caps on noneconomic damages for EMTALA and OB-GYN services. With regard to the growth of specialty hospitals, Congress has imposed an 18-month moratorium on physician investments in specialty hospitals through mid 2005 – in order to study the impact of this growing trend in care delivery on patient access to specialty services, particularly in the emergency room environment. Suggestions from the Surgical Community for Solidifying the Safety Net over the Next Decade In pulling together this article, I reached out to a broad array of surgeons from all parts of the country – physicians who are on the front lines of providing emergency surgical care. Without exception, all of these individuals applauded the recent changes in EMTALA. Some of them also had very good suggestions regarding aspects of the law that should be addressed to better enhance timely patient access to specialized emergency care. These suggestions include: better hospital triage and transfer policies; more flexibility regarding on-call response time; and evaluation of hospital staff cut backs and recent implementation of the 80-hour resident workweek on hospital capacity. While greatly abbreviated, the preceding comments were all presented to me with one goal in mind— improving care for the emergency patient. Surgical schedules and caseloads are increasing, reimbursement is declining, and liability insurance premiums are skyrocketing. In the 21st century, these trends have led many surgeons to alter their practices in ways that would have seemed unimaginable a decade ago – limiting scope of privileges, dropping participation in hospital medical staffs, and requesting stipends for providing on-call coverage. While many individuals outside the profession mistakenly view these changes in surgical practice as selfish and self-serving, surgeons know that these modifications have often become necessary in order to maintain a viable practice so that they may continue treating patients, albeit for a reduced range of services. Despite this fact, surgeons whom I have spoken to about the EMTALA issue tell me that they still view the ability to provide charity care as an integral part of why they became a physician and that hopefully they will be able to continue to provide services to the local community in this regard. It is a shame that the last 20 years of government involvement in strengthening the emergency care safety net may have inadvertently weakened it to the breaking point. Surgeons, in general, state that in order to mend this safety net, our country and government must recognize the public good that emergency medical and trauma systems provide to Americans every day. As such, legitimate EMTALA services would then become a mandated covered benefit under both Medicare AND private health insurance plans; hospitals and physicians would receive reasonable liability protections for treating emergency and severely injured patients; and funding would be increased to help properly staff emergency rooms so that patients are evaluated and triaged quickly and appropriately. In closing, I would like to acknowledge the American College of Surgeons' Committee on Trauma and members of the staff from the College's Division of Advocacy and Health Policy, which provided me with a wealth of background and resources. Their efforts greatly assisted me in writing this article. iFederal Register/Vol.68 No. 174, Part II. Medicare Program; Clarifying Policies Related to the Responsibilities of Medicare-Participating Hospitals in Treating Emergency Medical Conditions; Final Rule. DHHS, CMS. September 9, 2003: 53263. Past Issues of ACS Cross Country:
Revised February 12, 2004
by the American College of Surgeons, Chicago, IL 60611-3211 |
