EMTALA flexibility proposed to relieve on-call shortages

Washington -- The Bush administration has proposed letting hospitals with emergency departments cover their physician on-call responsibilities through community plans that coordinate resources of multiple facilities.

In a Medicare hospital payment rule released in late April, the Centers for Medicare & Medicaid Services proposed clarifying its on-call policies under the Emergency Medical Treatment and Labor Act. The law aims to prevent EDs from "dumping" uninsured or Medicaid patients at public hospitals.

If CMS finalizes the proposal, a group of hospitals in a particular region would have the option of designating one of the facilities as the on-call site for a specific time period, for a specific service, or both.

In the rule, the agency gave an example in which two hospitals make a formal community call arrangement. For the first 15 days of each month, one hospital could be the official on-call facility, and the other could be on call for the last half of the month. Alternately, the first hospital could be the on-call site for cases requiring specialized cardiac care, while the second could be the designated facility for neurosurgical specialty care.

Individual hospitals with EDs still would be required to give each emergency patient a medical screening examination and to have a plan for how to proceed if a needed on-call physician was not available, the agency said. CMS would not preapprove arrangements but would review them based on certain criteria if any EMTALA violations arise after the plans are put in place.

"We believe that community call would afford additional flexibility to hospitals providing on-call services and improve access to specialty physician services for individuals in an emergency department," the rule states.

The CMS proposal was prompted by a recommendation from the EMTALA Technical Advisory Group, which in April issued its final report. The panel -- consisting of Bush administration and hospital officials, physicians, patients and EMTALA investigators -- concluded that this flexibility could help address problems with the on-call situation.

Hospitals complain that because of the constant demands of EMTALA, they are being stretched too thin trying to cover holes in their specialized care availability. Violations of the act can result in severe fines and loss of Medicare participation rights. As a result, physicians say they are being pushed into unreasonable on-call schedules at multiple facilities.

In 2005, the most recent year for which survey data were available, 73% of ED directors reported to the American College of Emergency Physicians that they were having a problem with inadequate on-call coverage by specialists. That figure was up from 67% the year before.

Community call in some areas could help address this problem, which already has prompted many physicians to give up being on call altogether, said Katie O. Orrico, director of the American Assn. of Neurological Surgeons' Washington, D.C., office. For doctors who do accept call in specialties with high emergency department demand, the pressure to be accessible is often enormous.

"In smaller cities like Lexington, Ky., for example, you might have one neurosurgical practice there covering two or three midsized hospitals, and each physician simply can't be at two places at one time," she said. "If the hospitals were collaborating on this, scheduling call coverage would be easier in some respects."

Would hospitals go for it?

But strained physicians likely would have to push hospitals to pursue community call plans before any changes occur, Orrico said. The American Hospital Assn. supports its members having the option of community call plans. But hospitals that are advertising their ability to handle specialized emergency care at any time of day and that are competing with each other are not exactly clamoring to designate other area hospitals as the official on-call site for the region, Orrico said.

If CMS finalizes the proposal, legal firms that represent hospitals will recommend that they take a long look to assess whether community call makes sense for them, said Kerrin B. Slattery and Eric D. Hargan, partners with the law firm McDermott Will & Emery in Chicago. If a specialty hospital or other facility is designated as the on-call location for certain types of emergency patients, it might expect that it will take on more of the burden of caring for patients with those conditions than it currently does.

The dilemma that CMS faces, Slattery said, is that it wants to allow the needed flexibility for better care throughout the system without encouraging hospitals to use the community call plan to "dump" more clinically or financially risky patients at other facilities -- a practice that EMTALA was designed to outlaw.

Some doctors questioned whether community call plans would make a dent in the current crisis that is brewing in many areas of the country. The lack of specifics from CMS on how to construct a functional plan means that physicians don't know whether the concept would work well in practice, said Nicholas Jouriles, MD, an emergency physician in Akron, Ohio, and president-elect of the American College of Emergency Physicians.

Given that many areas of the country already have numerous hospitals and established emergency medical services coordination systems, regional community call might never work due to its complexity, he said.

"If you had a plan in Washington, D.C., but not in Baltimore, what happens to the patient who is halfway between the cities when they have their event?" he asked. "Are they going to be part of the region or not?"

CMS accepted comments on the proposed rule through June 13. The agency plans to finalize the changes by this fall.