Since the enactment of the Emergency Medical Treatment and Active Labor Act in 1986, EMTALA’s ever-changing rules have made it increasingly difficult for neurosurgeons to determine just what the law requires of them. This is a particularly frustrating circumstance considering that, although EMTALA enforcement has been uneven, both hospitals and physicians can be fined up to $50,000 for each EMTALA violation and in some cases excluded from the Medicare program.
In an effort to clarify several EMTALA issues, the Centers for Medicare and Medicaid Services issued a proposed regulation on May 9, 2002, which elicited more than 650 comments. The American Association of Neurological Surgeons and the Congress of Neurological Surgeons submitted comments, as did more than 75 individual neurosurgeons. On Sept. 9, 2003, the CMS issued a “new” final rule, which went into effect on Nov. 10, 2003. Subsequently, on May 13, 2004, the CMS published the revised Appendix V: Interpretive Guidelines-Responsibilities of Medicare Participating Hospitals in Emergency Cases. The interpretive guidelines do not have the force of law, but they contain authoritative interpretations and clarifications of statutory and regulatory requirements to assist the CMS in making consistent determinations about a provider’s compliance with EMTALA. Taken together, these two documents constitute the current EMTALA “rules of the road.”
The revised regulations do not fundamentally alter EMTALA, which requires hospitals with emergency departments to provide a medical screening examination to any individual who comes to the emergency room and requests such an examination and, if an emergency medical condition exists, necessary stabilizing treatment within a hospital’s capability and capacity.
Clearly, the revisions are a vast improvement over past regulations. They are not perfect, however, and a number of unintended consequences may stem from them. For example, many hospitals and emergency physicians are reporting increased difficulties in getting neurosurgeons to serve on call. In addition, neurosurgeons who are practicing at academic centers or level 1 or level 2 trauma centers are reporting an increase in the number of patient transfers from these community hospitals. The regulations were meant to address those situations in which hospitals were forcing neurosurgeons to provide continuous, “24/7/365” call. Unfortunately, while the regulations do state that such coverage is not required, the CMS leaves it to the hospitals and physicians to work out call schedules amongst themselves, and neurosurgeons may still find themselves in situations where their hospitals are requiring onerous call schedules.
Provisions and Guidelines for On-Call Requirements
The new regulations now include additional provisions related to EMTALA’s on-call requirements, and the interpretive guidelines provide additional clarification on what is expected of both hospitals and on-call physicians to meet these requirements.
Regulation Provision: §489.24(j) Availability of on-call physicians.
(1) 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 this section in accordance with the resources available to the hospital, including the availability of on-call physicians.
Interpretive Guidelines:
Regulation Provision: §489.24(j) Availability of on-call physicians.
(2) The hospital must have written policies and procedures in place–
(i) To respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician’s control.
Interpretive Guideline:
(ii) To provide that emergency services are available to meet the needs of patients with emergency medical conditions if [the hospital] elects to permit on-call physicians to schedule elective surgery during the time that they are on call or to permit on-call physicians to have simultaneous on-call duties.
Interpretive Guidelines:
Unresolved Issue: Selective Call May Be a Violation
Although the new regulation and interpretive guidelines have served to improve the understanding of what EMTALA requires, one provision seems to suggest that physicians are not permitted to take “selective” call:
Physicians who 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.
This provision could be interpreted in at least two ways. First, it seems to suggest that EMTALA mandates that physicians serve on call. However, the regulations and other elements of the interpretive guidelines state that physicians are not required to be on call at all times and that hospitals have the discretion and flexibility to set forth on-call schedules that best meet their needs. Further, the guidelines note that hospitals are permitted to exempt certain medical staff members (such as senior physicians) from their call schedules. Secondly, the provision could be interpreted to mean that physicians who are seeing established patients in the hospital must be available to the emergency department. Again, the regulations and guidelines do not support this interpretation. The AANS and CNS are seeking further clarification of this provision.
Katie O. Orrico, JD, is director AANS/CNS Washington office.