Complying with the Emergency Medical Treatment and Labor Act has been a challenge for many physicians over the past 19 years, during which time the law has evolved considerably. Most recently the federal government published a clarification of EMTALA in the Federal Register on Sept. 9, 2003, and issued revised interpretive guidelines the following May. These updates are reviewed in greater detail in this issue’s Washington Update.
While few neurosurgeons have been investigated or cited for an EMTALA violation–less than 2 percent according to the 2004 AANS/CNS Neurosurgical Emergency and Trauma Services Survey–a quick test will serve as an EMTALA refresher and may save you from peril: If you find yourself uttering any of the following 10 sentences, you may find the inspector general at your door.
1. I’ll see the patient in the morning. The ER physician, not the on-call specialist, determines if a patient can wait for specialty treatment. If you refuse to see a patient until morning and the ER physician decides to transfer the patient to another facility, you have violated EMTALA. Being “right” is not a defense.
2. Have the patient come to my office. The new EMTALA rules make it nearly impossible for you to see in your office a patient who has presented in the ER. Unless your office is located on the hospital campus and you share the same Medicare provider number with the hospital, you must go to the ER to see the patient.
3. I do not treat those types of patients. If you have general neurosurgery privileges, you must treat or stabilize all patients in need of neurosurgical care who come to the ER with an emergency while you are on call. If you do not treat certain types of disorders (aneurysms, for example) or patients (such as children), your hospital privileges should be altered to reflect these exceptions.
4. I won’t be on call unless I am paid. Stipends in exchange for on-call service must be the result of a negotiated contract between the hospital and physician. Such a contract must meet specific criteria in the anti-kickback and Stark laws. If you have not negotiated a written contract, you cannot suddenly refuse to take call without payment.
5. I’ll be there when I get there. According to the new interpretive guidelines, physician response times must be noted in terms of minutes. General terms such as “reasonable” or “prompt” are not permitted. The specific amount of minutes it took you to make your way to the hospital ER will be noted in the patient chart.
6. I am seeing another patient so I do not have to respond. While the EMTALA regulation allows a neurosurgeon to take simultaneous call and schedule elective surgeries, that does not mean you can do so without informing the hospital of your plans. Hospitals must have backup call lists or plans to fill in if you are unavailable. While simultaneous call and elective surgery is allowable, being unresponsive is not, particularly if it delays a hospital in implementing its backup plan.
7. I’ll evaluate the patient using telemedicine. Unless the patient is outside of your metropolitan area, you must physically evaluate him or her. The EMTALA regulations allow the use of telemedicine only in very limited circumstances.
8. If the federal law doesn’t require it, I don’t have to do it. Your state laws and your medical staff bylaws may also have provisions regarding on-call responsibilities. EMTALA sets forth the minimum requirements; states and hospitals may require more of their physicians.
9. Only the hospital, not the doctor, gets in trouble for violating EMTALA. While hospitals ultimately are responsible for filling their on-call panels, if treatment is delayed or a patient is transferred as a result of a physician violating EMTALA, both the transferring and receiving hospitals are required by law to report the physician within 72 hours. Physicians who violate EMTALA are subject to civil monetary fines of up to $50,000 and exclusion from all federal healthcare programs.
10. I am only on call for patients who already are seen by my practice. The new EMTALA interpretative guidelines (which appear to be a departure from the actual EMTALA regulations) state that neurosurgeons may not refuse to be included on a hospital’s on-call list while at the same time being on call for their own patients, particularly if the hospital’s coverage for neurosurgical services is not adequate. For example, if you are willing to see established patients in the hospital over the weekend or after hours, you must also be willing to serve on the hospital’s on-call panel. The practice of “selective call” is not generally permissible because it encourages disparate treatment. (The American Association of Neurological Surgeons and the Congress of Neurological Surgeons are seeking clarification of this issue.)
Katie O. Orrico, JD, is director of the AANS/CNS Washington office. Barbara E. Peck, JD, is senior Washington associate of the AANS/CNS Washington office.
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