This article describes the current state of the law and interpretive guidance concerning on-call obligations under EMTALA, including common misconceptions about the required scope of on-call coverage and focus areas where physicians and hospitals should be particularly careful not to run afoul of the legal requirements. However, readers are forewarned: the current regulatory framework concerning on-call coverage is no model of clarity. While we currently have more information than ever before about how the government plans to apply the on-call coverage requirement, these waters remain quite murky.

Under EMTALA, a Medicare-participating hospital that operates an emergency department must provide an appropriate medical screening examination to any individual who "comes to the emergency department" seeking treatment for a medical condition. If the screening examination reveals that the individual has an emergency medical condition, including where the individual is in labor, the hospital must either provide for further examination and treatment of the individual in order to stabilize the emergency condition or it must make an appropriate transfer of the individual to another facility, unless the treatment or transfer is refused. To satisfy these general obligations, a hospital is required to maintain a list of physicians on its medical staff who are on-call for duty after initial examination of an individual to provide further evaluation or stabilizing treatment.

Penalties for failure to comply with EMTALA can be significant. The Centers for Medicare & Medicaid Services (CMS), the federal agency with authority to interpret and enforce EMTALA, has the right to terminate a hospital’s provider agreement with the Medicare program if the hospital fails to comply with its EMTALA obligations. In addition, the Department of Health and Human Services’ Office of Inspector General may impose penalties of up to $50,000 per violation against a hospital that has negligently violated the law.

Similarly, a physician is subject to a penalty of up to $50,000 for each EMTALA violation, including refusal to appear to treat a patient within a reasonable period of time after being requested where the patient has to be transferred to another facility as a result of the failure to appear. If the physician’s violation is gross and flagrant or is repeated, the physician can be excluded from participation in the Medicare and Medicaid programs.

CMS Adopts "All Relevant Factors" Test

Historically, CMS has provided relatively little detailed guidance to assist hospitals in determining which specialties should be included on their on-call rosters and how frequent such specialty coverage should be. Compounding the absence of specific regulatory requirements are a variety of factors influencing each hospital’s "culture" with respect to emergency department on-call coverage. These factors can include whether or not medical staff bylaws require emergency department coverage as a condition of holding active staff membership, the number of specialists in a given practice area, the location of the hospital in an urban, suburban or rural area, and the balance of organizational power as between the hospital and components of the medical staff.

In September 2003, CMS issued its most recent and substantial update to the EMTALA implementing regulations. Among the changes announced was new language intended to "clarify" the circumstances in which physicians, particularly specialty physicians, must serve on a hospital’s on-call panel. CMS modified the applicable regulation to state – somewhat circularly – that: "Each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of the hospital’s patients who are receiving services required under [EMTALA], in accordance with the resources available to the hospital, including the availability of on-call physicians."

To determine whether a hospital is maintaining an appropriate level of on-call coverage under this standard, CMS will consider the following factors:

· Number of physicians on staff.

· Number of physicians in a particular specialty.

· Other demands on the physicians.

· Frequency with which the hospital’s patients typically require services of on-call physicians.

· Physician time off for vacations and conferences.

· Provisions the hospital has made for situations in which a specialist is unavailable or the on-call physician is unable to respond.

In adopting the new regulatory language and "all relevant factors" test, CMS attempted to recognize the wide variation in the size, staffing and capabilities of institutions subject to EMTALA and explicitly declined to mandate particular levels of on-call coverage that must be maintained by a hospital or to specify that on-call coverage is required for all services offered at the hospital. This said, however, CMS also stated clearly that the new standards were "not intended to signal any change in CMS’ position regarding hospitals’ responsibility to comply with EMTALA." That position had historically been understood to dictate some level of on-call coverage for all services a hospital offers to the public. Thus, by trying to provide hospitals with flexibility, CMS left many hospitals and physicians scratching their heads, wondering exactly what their on-call rosters should look like.

While there still is no formula that hospital administrators can use to calculate the mandated minimum level of on-call coverage for each specialty available at their facility, a well-grounded rule-of-thumb is that the on-call list for the emergency department should be a reasonable reflection of the hospital’s medical staff. Namely, those specialties with many practitioners and/or high patient volume should be well-represented in the coverage schedule. In contrast, those specialties with few practitioners and/or low patient volume may be represented on the call schedule in proportionately lower amounts. As a result, justifiable gaps in the on-call coverage are permitted; however, current guidance now clearly mandates that back-up arrangements (e.g., transfer arrangements with other facilities) be documented in writing for any such gaps in the schedule.

Eliminating Misconceptions and Creating Coverage Options

When it published the modified on-call coverage standards in September 2003, CMS also took the opportunity to correct a number of understandings that the agency believed to exist within the industry concerning on-call coverage.

No "3 = 24/7" Rule. CMS confirmed that there is no predetermined ratio that it uses to identify how many days a hospital must provide coverage based on the number of physicians on staff in a particular specialty. In particular, there is no rule stating that if there are at least three practitioners on staff in a specialty, the hospital must provide 24 hour/7 day on-call coverage in that specialty.

No Physician Is Required to Be On-Call at All Times. As a corollary to the immediately preceding point, CMS reiterated existing interpretive guidance that no physician, including a subspecialist, is required to assume 24 hour/7 day coverage, regardless of the number of physicians on staff in the physician’s specialty. Rather, written policies and procedures must be adopted for when a particular specialty is not available or when the on-call physician cannot respond for reasons beyond her control.

No Prohibition on Senior Staff Exemptions. A hospital’s provision of exemptions from its on-call schedule for senior medical staff members (identified by active years of service, age or both) does not by itself violate EMTALA, as long as the exemption does not affect patient care adversely.

In the same vein, CMS has now explicitly sanctioned several coverage practices sought to be used by hospitals.

Simultaneous Call. Physicians, with the exception of staff at a critical access hospital, can be on-call simultaneously at other hospitals to maximize patient access to care. When using this coverage approach, the hospitals involved must have policies and procedures to follow when the on-call physician is not available to respond because he has been called to the other hospital to evaluate an individual.

Surgery While On-Call. Hospitals may allow physicians (except physicians at a critical access hospital) to schedule elective surgery during times when they are on-call. A hospital is also permitted to have its own internal policy prohibiting elective surgery by on-call physicians. When a physician has agreed to be on-call at a particular hospital, but has also scheduled elective surgery during the same time period, the physician and the hospital should have planned back-up (including transfer arrangements) in the event that the physician is called while performing elective surgery and is unable to respond.

Avoiding On-Call Coverage Problem Areas

Even once a hospital’s on-call roster is established, physicians and hospitals can run afoul of legal requirements in a variety of ways. CMS guidance suggests that the following problem areas will be on surveyors’ radar screens.

Disagreement Between Emergency Physician and On-Call Specialist. While the emergency physician and the on-call specialist may need to discuss the best way to meet the individual’s medical needs, any disagreement regarding the need for an 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.

Seeing ED Patients in a Physician’s Office. When a physician is on-call for the hospital and seeing patients with scheduled appointments in her private office, it is generally not acceptable to refer emergency cases to the physician’s office for examination and treatment of an EMC. The physician must come to the hospital to examine the individual if requested by the treating emergency physician, unless the physician’s office is part of a hospital-owned facility and on the hospital campus and unless all patients presenting with similar conditions are similarly referred.

Telemedicine to Evaluate a Patient. On-call physicians may utilize telemedicine services for individuals in need of further evaluation only when, because of the individual’s geographic location (e.g., where the individual presents to a hospital in a rural health professional shortage area or in a county outside a metropolitan statistical area), it is not possible for the on-call physician to physically assess the patient.

Selective Call for Private Patients. Physicians who refuse to be included on the hospital’s on-call list but take calls selectively for patients with whom they have established a doctor patient-relationship, while at the same time refusing to see other patients, may violate EMTALA. In addition, a hospital permitting such selective call while coverage for the particular service is inadequate could be characterized as encouraging disparate treatment of individuals presenting for emergency care.

Pressing Ahead

Despite the few clearly right or wrong answers in the world of EMTALA standards for on-call coverage, the existing landscape remains subject to change, and the issuance of new guidance from CMS is always a possibility. Moreover, on-call coverage issues are being studied by a subcommittee of the EMTALA Technical Advisory Group (TAG), established by Congress in the Medicare Prescription Drug, Improvement and Modernization Act of 2003. The TAG, which is charged with reviewing EMTALA rules and offering recommendations for improvement, has established several subcommittees to study specific issues, including an On-Call Subcommittee. Numerous interested parties have provided testimony to the On-Call Subcommittee, and the Subcommittee is actively considering a variety of issues, including recommending changes to the selective call standard described above.

Consequently, hospitals and physicians alike are well-advised to monitor future developments concerning the EMTALA on-call coverage standards. We can only hope that when the changes come, they bring clarity and not further confusion.