EMTALA & The On-Call Physician
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MICA Audiotape Script
EMTALA and The On-Call Physician
August 29, 2000


This is Donna Young, Vice President for Risk Management Services, and I want to welcome you to this edition of Audio Rx., the audio CME program. We know your time is valuable and our goal is to make education programs as convenient as possible. By listening to this audiotape, then completing the enclosed quiz, you can receive CME credit. Details can be found in the accompanying materials or simply by calling MICA Risk Management.

Our topic today is EMTALA and The On-Call Physician.
 
I am joined today by our education coordinator, Judy Avery and our special guest, Dr. Todd Taylor an emergency physician at Good Samaritan and Phoenix Children’s Hospital. Our topic was chosen because of it’s high ranking on our recent CME needs assessment and a significant number of phone calls to our Hotline. Judy will begin with a discussion of EMTALA and the on-call physician.

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The Emergency Medical Treatment and Labor Act or EMTALA was signed into law by President Ronald Reagan on April 7, 1986 as part of the very large Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985. Congress enacted EMTALA in response to a perceived crisis in patient “dumping” by hospitals denying emergency medical care to patients with inadequate or no insurance. The federal EMTALA statute requires all hospitals who participate in the Medicare program to adopt and enforce a policy to ensure compliance with the requirements of EMTALA and “to maintain a list of physicians who are on-call for duty after the initial examination to provide further evaluation and/or treatment necessary to stabilize an individual with an emergency medical condition”. If a hospital offers a service to the public, then the service is expected to be available through on-call coverage of the emergency department.

The essential requirements of EMTALA are the provision of an appropriate medical screening examination to determine if a medical emergency or active labor exists, stabilizing treatment for any emergency medical condition identified and conduct a formal transfer if necessary. Any qualified medical professional designated in the hospital bylaws and/or rules and regulations can perform the medical screening examination. However, a physician is ultimately responsible for any screening examinations performed by a non-physician such as those often done by nurses in hospital OB triage units. The “appropriate” medical screening examination must be uniform, non-discriminatory and sufficient to reasonably identify an emergency condition. The EMTALA statute defines an emergency medical condition as a patient with acute symptoms of sufficient severity, including severe pain, which, without immediate medical attention, could reasonably be expected to result in serious health consequences. For a pregnant woman who is having contractions, an emergency medical condition exists if there is inadequate time for a safe transfer or transfer may pose a health risk to the woman or baby. It is important that the designated medical professional performing the medical screening examination (MSE) understand that HCFA (Health Care Finance Administration) and the courts use “legal” and “medical” definitions when applying EMTALA. For example, one should be careful not to assume a patient is “stable” or that they do not have an “emergency medical condition” based on traditional medical criteria. Declaring someone “legally stable” or “with no emergency medical condition” under the EMTALA definitions can be very difficult unless the patient is well enough to be discharged home.

If the medical screening examination truly reveals no emergency medical condition, then EMTALA regulations do not apply. If the examination does reveal an emergency medical condition, there are only two options: 1) provide stabilization treatment to resolve the emergency medical condition or if unable to stabilize due to a lack of capacity or capability, 2) transfer to a facility that does have both the necessary capacity and capability to treat the patient. 

1988 amendments to EMTALA extended it to on-call physicians. As a result, once the physician agrees to be listed on the hospital on-call roster, EMTALA requirements also apply to the physician. If the on-call physician fails to respond appropriately to a request from the emergency department to further evaluate or help stabilize an emergency medical condition in a timely fashion, the on-call physician as well as the hospital is exposed to the risk of an EMTALA violation. The hospital, but not the physician, is also subject to a civil suit from the patient for violating EMTALA. Any physician who is found guilty of an EMTALA violation is subject to a fine of up to $50,000 per violation and the potential for termination from the Medicare/Medicaid programs including AHCCCS in Arizona. In addition, a violation usually results in medical staff disciplinary action such as suspension of privileges with reports to the Arizona Board of Medical Examiners and the national Practitioner Data Bank. EMTALA investigations often result in a medical malpractice action even if no EMTALA violation is ultimately proven.

An EMTALA case from April 1995 was featured on NBC Dateline in which an Oklahoma hospital was assessed a $25,000 fine for the refusal of an on-call physician to accept the transfer of a vascular surgery patient who ultimately died. Civil lawsuits against the hospital were settled for an undisclosed amount.

An EMTALA case from 1991 involved a general surgeon on-call at a small rural Kentucky hospital where in the early morning hours five auto accident victims arrived at the emergency department. Two patients had severe head injuries and intra-abdominal bleeding. The hospital was not a trauma center and had no neurosurgery capability. However, both also needed exploratory laparotomies, but the on-call anesthesiologist refused to assist him in performing the laparotomies because he did not want to anesthetize patients with head injuries. The surgeon ultimately transferred the patients to a trauma center that subsequently reported the “inappropriate transfer”. The surgeon was fined $100,000 and excluded from Medicare for two years. On May 3, 1999, the Sixth Circuit Court of Appeals overturned this judgement and ended a 9-year court battle that the surgeon ultimately “won”. The whole incident could have been avoided had the surgeon complied with the transfer requirements of EMTALA, certified that the benefits of transfer outweighed the risks, and obtained the consent of the receiving hospital.

The next case used the principle of EMTALA but was not actually an EMTALA case. In a 1999 Missouri case entitled Millard v. Corrado, the federal court ruled that a general surgeon who attended a medical conference while on-call could be held liable for both general and medical negligence to a patient whose treatment was delayed. The surgeon scheduled himself for a shift on-call. As the on-call physician, hospital bylaws required him to respond within 30 minutes. Without notifying the hospital, the physician went to an out of town medical conference and asked an orthopedist to “fill in” for him. A trauma patient was brought to the ED with severe injuries including internal bleeding. Forty minutes after being paged, the orthopedist responded. Since he was not “qualified” to treat the patient, the patient was transferred to another facility under the care of a general surgeon. The patient underwent surgery 4 hours after the accident and sustained the loss of a kidney, gallbladder, colon, and part of the small intestine. She successfully sued the on-call physician at the first hospital for negligently delaying her treatment, as well as for medical negligence.  

Hospitals are required by EMTALA to “provide for an appropriate medical screening examination…and within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition”. This language requires that on-call specialists must be available to treat patients when requested or when the medical condition is beyond the expertise or capability of the emergency physician.

Dr. Taylor we know you have considerable expertise on the subject of EMTALA both as a practicing physician and as a frequent lecturer and EMTALA compliance consultant. We also know that EMTALA regulations are extensive and have a broad application to the hospital however our focus today is on the regulations that apply to the “on-call” physician.

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1) What is a physician’s responsibility to a patient and the ED while on-call?
The first thing to understand is that physicians are responsible for EMTALA only when they (or the physician they are covering for) are listed as the on-call physician for the emergency department. Second, this includes calls from the ED for which you are on-call and calls from ANY other hospital ED that requests transfer to the hospital where you are on-call.

Your responsibility is to listen carefully to what the ED is requesting and help them find an appropriate resolution to the patient’s medical problem. This may only require a phone consultation, but may also require you to admit the patient to the hospital or even come to the ED regardless of the time of day to assist the emergency physician in treating the patient. While the request is open for discussion, if ultimately requested to come to the ED you must do so even if you feel you are not the most appropriate specialist.

Once you assume care of the patient in the ED you may obtain additional specialty consultation or, if appropriate, discharge or transfer the patient. BUT, always be sure whatever you do, it is in compliance with both good medical care and EMTALA. There does not have to be a bad medical outcome for an EMTALA violation to occur. The mere fact you failed to achieve technical compliance is enough to get you, and your hospital, into EMTALA trouble.

2) What about receiving requests from any ED that doesn’t have the capacity to care for a patient and asks for a transfer to the hospital where the physician is on-call?

Under these circumstances the on-call physicians is acting as an agent for the hospital. Hospitals are required to accept patients in transfer from other hospitals that do not have the capacity or capability to treat a patient’s problem. I have heard some say, “but I’m not on-call for the whole state of Arizona!” Unfortunately under EMTALA you are on-call for the whole United States. As noted in the previous question, calls from other hospitals may only require a phone consultation or possibly follow-up in your office, but if ultimately requested, you must accept the patient in transfer.

If you are accepting the patient as a direct admission or for surgery it is your responsibility to make arrangements with your hospital’s patient placement or surgery scheduling. If you feel it is necessary that the patient be further evaluated in the emergency department you should contact the emergency physician and discuss the situation.

3) Is there a circumstance in which an on-call physician can refuse a patient transfer?

The only reason you can legitimately refuse a patient transfer is if you or your hospital is clearly not able to provide the necessary care (i.e. no ICU beds at your hospital or you are already truly involved in another emergency situation that will prohibit you from providing the care). Otherwise, if the services are available you must make them available to any patient that needs them. HCFA generally uses the “if you have ever before” principle: That is, “If your hospital has ever taken care of such a patient under similar conditions before you must accept them now unless the capacity is saturated.” (i.e. closed to EMS/all transfers). You can not refuse to accept a patient in transfer because they have no insurance or because they are a non-contracted health plan.

This is a growing area for EMTALA investigations and two years from now you may not even remember what occurred when HCFA asks to talk with you. So be careful to document any situation in which you refuse to accept a patient in transfer.
 
4) Can the on-call physician refuse an ED referral?

You can NEVER refuse ED referrals if you (or the person you are covering for) are on-call for that ED. You may suggest a more appropriate specialist, BUT if ultimately requested you must come to the ED in a reasonable amount of time, evaluate, & treat the patient. You may suggest that the patient be transferred if you know the hospital does not currently have the capacity to treat them, but (at the discretion of the emergency physician) you may still be required to come to the ED and help managed the patient until transfer.

5) If contacted by the ED, must the on-call physician provide follow-up services in the office?

The simple answer is YES, if you want to stay out of trouble.

This is difficult because HCFA and the courts have not been able to agree upon what the law actually requires of on-call physicians. What is clear is that the hospital will be held responsible if the patient does not get the necessary care. In addition, plaintiff’s attorneys are using this situation as a ploy to add additional liability when a bad outcome occurs. Some have the opinion that the agreement by the on-call physician to provide these services in follow-up creates a patient–physician relationship and to later refuse creates a possible patient abandonment situation. These issues have led several hospitals to establish in their medical staff bylaws or rules and regulations a requirement for on-call physicians to provide this follow-up care. So, there may be other reasons besides EMTALA to provide outpatient follow-up. As this becomes more of a problem, I believe eventually there will be new legislation to clarify this responsibility.

Until this IS clarified, to stay our of trouble, on-call physicians should provide follow-up services in their office necessary to further stabilize or prevent de-stabilization of an emergency medical condition without a request for payment up front.

Further Stabilization: An eye problem that can more appropriately be treated in the ophthalmologist’s office.

Prevent De-stabilization: Orthopedic follow-up for definitive casting after ED splinting.

Those concerned about providing this care should discuss this with the hospital and emergency department administration. The alternative may be that on-call physicians will be required to come to the ED to provide all care that could otherwise be done on a delayed basis, because the hospital remains at risk under EMTALA if the on-call physicians does not follow through with the agreed outpatient follow-up plan.

5B) If the on-call physician is not a contracted provider for the patient’s insurance plan, can the patient be referred to a physician in the plan without being seen?

It is prudent to determine if any patient presenting to your office has an immediate need for medical care. Beyond this and if time allows, you could make definitive arrangements for the patient to follow-up with a contracted provider. Be careful that these arrangements follow local standards of care and that the patient will receive appropriate care. Simply sending the patient to the ED of the contracted hospital, or in the case of an uninsured patient a “County” hospital is likely to create an EMTALA situation for the original referring hospital. As noted before, this can create problems for the physician as well.

5C) How long must the physician follow the patient?

Essentially long enough to resolve the original problem for which the patient was referred in the first place. For most patients this will only be 1 or 2 visits, but some may require long-term care. If payment for on-going care becomes an issue you should deal with such a patient in the same way you would deal with any established patient who is unable or unwilling to make arrangements to pay for on-going care.

5D) What if the patient requires specialist care beyond the expertise of the on-call physician?

I assume this will only be a problem when the patient does not have the ability to pay for these services. You should try to deal with this situation in the same way you would deal with any of your other established patients in the same situation. You can try to help the patient qualify for Medicaid, but if the patient requires urgent care that you can not provide and are unable to arrange with the appropriate specialist of your choice, you may be forced to send them back to the ED that referred them. Be careful to document why this was necessary and a courtesy call to the ED explaining the situation is prudent. Abuse of this option will undoubtedly result in an inquiry from the hospital administration and the ire of your emergency physicians.

5E) What about ability to pay for the medical services?

EMTALA originally came about because hospitals and physicians were mistreating uninsured patients in the early 1980’s and since then the travails of managed care have only made the situation worse. Our society has allowed the elimination of cost shifting as the primary method for funding indigent healthcare without providing for adequate funding through other government programs. We are now beginning to see the fallout from this failed public policy and on-call issues are a stark example.

With the advent of Medicaid AHCCCS in the early 1980’s Arizona counties decided to end the traditional County healthcare systems for the indigent. Unfortunately, State AHCCCS has been grossly inadequate to meet the growing need. As a result we have seen emergency departments so over crowed that we are struggling to deliver care to the real emergencies.

EMTALA does not prohibit you from billing patients for services, however under certain circumstances it does require you to provide those services before demanding payment. It’s not fair, but it’s the law. If you want to complain call your Congressman. If we continue to shirk our responsibility to care for patients we can only expect more legislation.
 
5F) Is there a statute that addresses payment for “on-call” physician services when the physician is not a contracted provider?

A law was passed in Arizona 4 years ago that requires managed care plans to pay on-call physicians for the services they provide to non-contracted plan patients. This law states, in part:

“If within a reasonable period of time after receiving a request from a hospital emergency department for a specialty consultation a health care services plan fails to identify an appropriate specialist who is available and willing to assume the care of the enrollee, the emergency department may arrange for medically necessary emergency services by any appropriate specialist, and the plan shall not deny coverage for these services due to lack of prior authorization.”

But don’t assume payment will be automatic. You may need to remind the plan of their responsibility and I suggest sending an explanation along with the bill as to why you became involved with the care of the patient as a non-contracted provider. More information on this is available at the Arizona College of Emergency Physicians’ web site: http://www.azcep.org/.

6) Are there circumstances when an on-call physician can treat an ED referral patient in the office rather than coming to the ED?

In 1998, HCFA released a clarification of EMTALA that created a special category of patient called “Stable for Discharge”. Under this category, certain patients who still have an unresolved emergency medical condition, but in which delayed definitive care will not effect the outcome, can be discharge from the ED as long as a credible plan for additional stabilization or to prevent de-stabilization has been arranged. Under this type of situation the on-call physician should be very sure that they are willing and able to provide the necessary services without expectation of payment up front. Otherwise they should come to the ED to provide the services. Since the emergency physician bears the majority of risk in such circumstances, it is up to them to determine which patients are appropriate for this type of discharge.

7) Can the on-call physician refuse to treat a patient in the ED who was “discharged” from his or her practice?

EMTALA is essentially an anti-discrimination law and this situation is a particularly difficult untoward consequence. This is especially true in small communities where there may be a limited number of specialists. The law uses the word “individual” and does not further limit who this “individual” might be. So an underage minor, a foreign national legal or illegal, managed care or no insurance must all be treated the same and without discrimination. I am aware of at least one case where a patient had assaulted several hospital personnel and the hospital obtained a restraining order against the patient. However, because federal law supercedes state law and despite the restraining order, this patient had to receive care anytime he presented to the ED. So, whether they are discharged from your practice or a patient who owes you thousands of dollars, they are still entitled to your services when you are on-call for the ED. When possible, you might want to make special arrangements for care by another physician, but, if on-call, you have the ultimate responsibility.

8) What is a “reasonable” amount of time for an on-call physician to respond to a call from the ED?

This is usually outlined in the hospital’s rules and regulations, so no physician should assume on-call duties before knowing what is expected of them. I usually advise hospitals to divide response time into at least two events. The first is a response to the call or page from the ED. Under most circumstances this is less than 30 minutes, but it varies by hospital. When you actually need to arrive to the ED if requested will depend upon the clinical situation, but may also be outlined by the hospital. The clinical setting may require a vascular surgeon to arrive at the ED within 15-30 minutes for a ruptured aneurysm, whereas a psychiatric consult may be less urgent. Bottom line: Know what is expected before you hang up the phone.

9) Is it an EMTALA violation if the on-call physician refuses follow-up care or refers the patient back to the ED when the patient has no insurance and/or no ability to pay?

As noted previously, this is risky behavior and certainly places the hospital at risk for an EMTALA violation. It may place the physician’s medical staff privileges at risk and may place the physician’s medical license at risk if a claim for patient abandonment is made. HCFA may try to claim an EMTALA violation against you as the on-call specialist, however, you will likely prevail in court if you are willing to defend yourself. Anyone contemplating such actions should consider purchasing special liability insurance, since traditional medical malpractice insurance does not usually cover EMTALA defense or civil monetary penalties.

10) If the patient is referred to the on-call physician for follow-up in three days and the patient calls to schedule an appointment on the third day, must the patient be seen that day?

You should treat this patient like any other established patient who calls for an urgent appointment. You may need to talk with them by phone to determine how acute the problem is and when an appropriate time for follow-up might be. The clinical situation will need to determine if they need to be seen today, in a few days, or referred immediately back to the ED because of worsening symptoms. The ED discharge instructions should advise patients to return to the ED if their symptoms worsen or necessary follow-up arrangements can not be made.

A more difficult question is whether an on-call physician has a duty to call a patient who fails to keep a necessary appointment or fails to call for an appointment. An example might be the neonate with a fever and a negative ED work up that fails to appear for a recheck and culture results in 24 hours. Or the on-call physician who receives abnormal laboratory results on a patient who failed to call for an appointment. Such scenarios need to be worked out between the hospital and on-call physicians as to who assumes these responsibilities.
 
11) What response would you recommend that the on-call physician give when contacted by the ED?

Physicians refusing to comply with EMTALA (even if by ignorance of the law) face possible medical staff suspension with a subsequent report to BOMEX & the National Practitioner’s Databank, federal fines of $50,000 per violation (not per patient) & Medicare/Medicaid (State AHCCCS) decertification, and almost certain medical malpractice judgement if there is an adverse outcome. This should make it clear that on-call duties should be taken seriously. Fortunately EMTALA compliance is straightforward as long as a two principles are followed:

1. Always take care of the patient first.

2. Your best response to ANY inquiry from ANY hospital is:  “How can I help you with this patient?”

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There are several risk management strategies available to the on-call physician that can be utilized to avoid EMTALA violations. Most importantly, when you receive a request from the ED where you are on-call, respond appropriately and promptly. If possible, it is best to schedule your on-call duty on a day when you are not heavily scheduled in the operating room or office. Your scheduler should have knowledge of your on-call schedule so that ED referrals can be scheduled in a reasonable and timely manner. Your office staff must be aware that ED follow-up referrals may need to be treated differently than other types of patients to assure EMTALA compliance.

If you are on-call and leave town the next day, be sure to alert the physician covering your practice that you were on-call and that they may have to see ED referral patients in follow-up. 

If you receive calls from ANY ED that does not have the capacity to care for the patient’s problem, respond appropriately and promptly. Remember that you can NEVER refuse ED referrals if you, or the person you are covering for, are on-call for that ED. You may suggest a more appropriate specialist when discussing the patient with the ED physician, however, if ultimately requested to do so, you must come to the ED in a reasonable period of time to assess and help treat the patient. Even if you know the hospital does not have the capacity to treat the patient, you may still be requested to come to the ED and help manage the patient’s medical condition until transfer.

Always complete a transfer form when sending a patient to another facility. This is one of the most important requirements; one that frequently results in an EMTALA violation when it is not done. Documentation on the transfer form sets forth the objective reasons for the transfer.

Consider carefully any decision to refuse an incoming patient transfer. The only legitimate reason to refuse the transfer is if the hospital where you are on-call clearly does not have the capacity to provide the necessary patient care or you are already involved in an emergency case that will prohibit you from caring for the requested transfer. The general rule is if you or your hospital has ever cared for a patient with a similar condition under similar circumstances, you must accept the patient.

Document phone conversations that detail your understanding of the referral request and information provided by the ED where you are on-call, by any ED requesting transfer to your hospital or by the ED regarding a referral to your office.

If you are contacted by the ED for follow-up services, you MUST provide such services necessary to further stabilize or prevent de-stabilization of the emergency medical condition without consideration of payment. This means you should not require payment prior to a follow-up visit resulting from an ED referral or send the patient back to the ED if the patient is unable to pay or is a member of a non-contracted health plan.

Unfortunately EMTALA regulations seem to pit physicians against hospitals and their own colleagues. The most effective way to avoid an EMTALA problem is for everyone to work together to arrive at creative solutions to meet the requirements. Have you read the hospital bylaws and determined what they require from you when you are “on-call”? If you are uncomfortable with the requirements have you discussed the issue with the appropriate medical staff committee and other members of the medical staff? Have you spoken with colleagues on the staff of other hospitals? Several local hospitals have succeeded in working through these difficulties in a mutually beneficial way. Take the time to be involved in change rather than a victim of regulation.

Remember when you are “on-call” and requested to treat a patient, EMTALA requires you to respond in an appropriate way so that the patient’s medical needs are adequately met.

We hope you have found this risk management program informative. We encourage you to share this tape with your staff. And once again, thank you for listening!

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Contact Information:
Todd B. Taylor, MD, FACEP
1323 East El Parqué Drive
Tempe, Arizona 85282-2649
Home Office: 480-731-4665
Fax Autoswitch: 480-731-4727
E-Mail:  tbtmd@cox.net

The tape is free to MICA clients by request. Non-MICA insured can also order the tape by sending a written request along with a check for $25.00 to Diana Henderson @ MICA, 2602 E. Thomas Road, Phoenix, AZ 85016. Diana's phone number is 602-808-2134 if there are additional questions.

The script of this audio tape is reprinted above with permission from MICA.

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