Opinion 'plays into hands' of on-call specialists

The advisory opinion recently issue by the Department of Health and Human Services' Office of Inspector General (OIG) in response to a hospital with an existing on-call coverage payment arrangement "has played into the hands of on-call specialists," argues Todd B. Taylor, MD, FACEP, a Nashville, TN-based member of the board of directors of the American College of Emergency Physicians.

"This has been an ongoing struggle between hospitals and on-call physicians for years," he observes. "Hospitals are already disadvantaged because EMTALA puts it all on them to provide these services but has no requirement for specialists to cooperate."

What the opinion means to the ED manager "is that with regard to services, it will force hospitals into an even more untenable situation when it comes to coverage," he says.

The first thing the opinion does, says Taylor, is "sanction" payment for on-call services. "The OIG does make the point that they are not implying they believe this is required," he says. "However, that was after they spent half a page talking about that fact that if physicians were to provide these services at a below-market level of compensation, it could be construed as a kickback."

The bottom line, he says, is this: "It would appear that a hospital has to ensure that their on-call specialists are providing those services within a fair market value, and that they can't be above or below that."

Taylor goes on to note that "almost anyone can make the argument that uncompensated on-call physicians provide their services at below-market rates. Having a requirement to be on-call as a contingency for medical staff services may set up a quid pro quo for physicians to provide services and receive referrals," he suggests.

Furthermore, he notes, it raises an interesting question concerning ED physician staff. "Do emergency groups provide ED coverage at below fair market value in order to get or maintain a contract — i.e., referrals?" Taylor posits. "If so, then in the eyes of the OIG, why would their contract be any different?"

And yet, he says, ED physicians are treated differently "at every hospital in America." Taylor explains: "I absorb [the cost of] uncompensated care, yet an on-call ophthalmologist gets a flat $2,000 a day; so I get half that and I have to work."

This, he says, raises the following question: How do you assess fair market value for ED physicians. "My contention is that if an ED physician group agrees to provide a hospital service [at less than fair market value] because they want the contract, the OIG would potentially have an issue with it based on this opinion," Taylor explains.


For more information on the implications of the opinion for ED physicians contact:

  • Todd B. Taylor, MD, FACEP, Board of Directors, American College of Emergency Physicians, 2714 Westwood Ave., Nashville, TN 37212-5218. Phone: (480) 731-4665. E-mail: ttaylor@acep.org.