Overcoming EMTALA challenges

EMTALA is a four-letter word (okay, six letters) in the minds of most physicians. Many think they know what the law is about but don’t (hint: there is more to it than emergency department [ED] on-call scheduling). The following should provide a little more insight into the method behind the madness.

The Emergency Medical Treatment & Labor Act (EMTALA) statute requires hospitals with EDs to provide a medical screening examination to any individual who comes to the ED and requests such an examination, regardless of the individual’s ability to pay. At the same time, it prohibits hospitals with EDs from refusing to examine or treat individuals with an emergency medical condition.  

The law, enacted in 1986, was prompted by the case of Eugene Barnes, who presented to Brookside Hospital with a stab wound to the side of his head. The on-call neurosurgeon refused to accept the patient, as did another neurosurgeon who was not on-call. Two other local hospitals also refused to accept the patient. A fourth hospital accepted the patient after a significant delay. Three days later, even after surgery, Barnes died. This case, along with many others, raised the patient “dumping” issue to a national level. In response to public outrage, Congress enacted EMTALA.

One of the EMTALA requirements is that hospitals must maintain a list of physicians who are on-call to provide further evaluation and/or treatment necessary to stabilize an individual with an emergency medical condition. The Centers for Medicare & Medicaid Services (CMS) expects hospitals to strive to provide adequate specialty on-call coverage consistent with the services provided at the hospital and the resources the hospital has available. Although the “rule of three” is not an official recommendation from CMS, most experts agree that if there are three or more physicians of a particular specialty represented on the medical staff, then one of those physicians should be on-call every day. If fewer than three physicians are in a given specialty, there may be days that are not covered. CMS understands that a physician can not safely provide coverage every day. If two physicians are in the specialty, the call schedule must be equitable and include weekends and holidays.

When a physician who is on the hospital’s on-call list fails or refuses to appear within a reasonable period of time after being notified, EMTALA allows CMS to take enforcement actions against the physician and hospital. These actions can include civil monetary penalties (up to $50,000 per incident against both the hospital and the physician, a fine that is typically not covered by insurance), termination from Medicare and other federal health programs, criminal prosecution or civil lawsuits, medical staff suspension, and reports to the National Practitioner Data Bank and state medical board by the Office of Inspector General.

With the increasing physician shortage, eroding hospital finances, liability issues, and physicians tailoring their practices to lower the number of risky procedures they perform, many hospitals are finding it increasingly challenging to fulfill the mission of providing optimal care to their communities. Creative solutions, such as community call, are beginning to appear as hospitals and physicians collaborate to provide efficient and effective healthcare. Community call is a system where hospitals share coverage provided by specialists. For example, Hospital A, Hospital B, and Hospital C each have only one orthopedist on staff. These three hospitals create an arrangement where one of the orthopedists is on-call every day. Those physicians may be on staff at all three hospitals, or the patient may be transferred to the hospital where the on-call physician is on staff. In a community call arrangement, this transfer is allowable and not considered patient dumping.

It is prudent for medical staff leaders to review the policies at their institutions, as well as provide education for the entire medical staff. As EMATLA violations are initiated by a complaint, informing medical staff members of your policies and enforcing them is the best prevention against EMTALA-related investigations. These policies should clearly define on-call frequency, responsibilities, and response times, as well as the medical staff process for enforcement.  

The most recent interpretive guidelines were published in May 2009. For additional information, visit www.cms.hhs.gov/EMTALA/.

William F. Mills, M.D., MMM, CPE, FAAFP, is Senior Vice President of Quality and Professional Affairs at Upper Allegheny Health System in Olean, NY. He can be reached at wmills@uahs.org