July 19, 2004

Thomas E. Hamilton
Director, Survey and Certification Group
Department of Health and Human Services
Centers for Medicare & Medicaid Services
Mail Stop S2-12-25
7500 Security Boulevard
Baltimore, MA 21244-1850

Dear Mr. Hamilton:

The American College of Surgeons has reviewed the Revised Appendix V, Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases (S&C-04-34), which was distributed to the Centers for Medicare & Medicaid Services (CMS) regional offices and State Survey Agencies. As we noted in our comments to the final rule, CMS has made considerable progress toward making the EMTALA regulation more reasonable, particularly in regards to the physician on-call provisions. On balance, we believe the additional clarification on EMTALA provided in the interpretive guidelines will be useful to survey agents, as well as physicians who are attempting to comply with EMTALA.

There is, however, one aspect of the guidance document relating to the on-call provisions that attracted our attention and concerned us. Following is the excerpt from the interpretive guidelines:

Physicians that refuse to be included on a hospital's on-call list but take calls selectively for patients with whom they or a colleague at the hospital have established a doctor-patient relationship while at the same time refusing to see other patients (including those individuals whose ability to pay is questionable) may violate EMTALA. If a hospital permits physicians to selectively take call while the hospital's coverage for that particular service is not adequate, the hospital would be in violation of its EMTALA obligation by encouraging disparate treatment.

The College agrees that CMS' interpretation of EMTALA is correct when it states that a physician who would refuse to take a call specifically to evade a population of patients that may be unable to pay for emergency care could be subject to an EMTALA violation. However, we are concerned with the potential implications of such a broad statement that CMS has made.

First and foremost, this statement implies that physicians who do not accept a general call at a particular hospital, but who do respond to calls relating to their own patients or their colleagues' patients with whom they have an established physician-patient relationship could be in violation of EMTALA. Physicians have a responsibility to respond to calls or emergency situations that arise in regards to their own patients, regardless of whether or not they are on a hospital's on-call list. Not to do so would simply be irresponsible and contrary to good patient care. This is not the equivalent of selectively "cherry-picking" from new patients who show up in the emergency room based on their ability to pay or other factors, as the above paragraph from the interpretive guidelines infers.

We believe the interpretive guidelines should be altered to distinguish between these two situations: (1) physicians who are on a hospital's on-call list and who selectively respond to emergency room calls when on-call; and (2) physicians who, for legitimate reasons, do not accept call at a particular hospital, but who do respond to calls relating to patients with whom they or their colleagues have an established physician-patient relationship. The first situation is clearly one in which an EMTALA violation could be incurred. The latter situation is one in which a physician, who has an arrangement with a hospital releasing him or her from on-call responsibilities, is merely acting in accordance with appropriate patient care. CMS should clarify that a physician who is not on call at a particular hospital may respond to emergency calls relating to a patient with whom they have an established physician-patient relationship without invoking an EMTALA violation.

Furthermore, the College would like to point out that situations do exist in which a surgeon or other physician may, for legitimate reasons, choose not to take call at a particular hospital. In fact, one such example is noted in the interpretive guidelines. CMS indicates several paragraphs following the statement above that it does allow hospitals flexibility in the utilization of their medical personnel. Specifically, it states that allowing exceptions from its call schedule for certain medical staff members (senior staff members) does not by itself violate EMTALA. This policy was also outlined in the June 13, 2002 program memorandum to Survey and Certification Group Directors clarifying hospitals' responsibilities concerning on-call physicians and again in the final rule on EMTALA published in the September 9, 2003 Federal Register.

CMS has provided one example, but the absence of a more general statement, or additional examples of situations in which physicians not taking call at a particular hospital may not necessarily violate EMTALA may lead survey agents or others using this document for clarification to believe there are no other legitimate reasons for a physician to decline to take call. Following are two examples that we believe merit consideration:

• A situation in which a hospital buys out another hospital far away and it is simply not feasible for physicians to routinely provide prompt on-call services at remote locations.
• In many parts of the country, especially in rural areas and those with small hospitals providing care over a great distance, there is an insufficient base to support specialists in a number of different fields. It can sometimes be an impossibility for a single specialist who covers multiple hospitals – possibly across a wide area – to be on-call at all of those hospitals.

In addition to these two examples, the College believes other situations may exist that could cause a physician to decline on-call responsibilities at a given hospital. The College would appreciate CMS clarifying somehow that there may be legitimate reasons for a physician to not be on a hospital's on-call list.

Again, the College appreciates the most recent changes made to the EMTALA rule and the clarifications that are provided in the interpretive guidelines. We hope that CMS will continue to work with the medical community, as it has done so well in recent years, to improve the workability of EMTALA.

Thank you in advance for any clarification or additional comment that your agency can provide.

Sincerely,

Thomas R. Russell, MD, FACS
Executive Director