EMTALA Q&A

Can PAs provide on-call patient care?

[Editor’s note: This column addresses readers’ questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Steve Lewis, Editor, ED Management, 215 Tawneywood Way, Alpharetta, GA 30022. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail: steve@wordmaninc.com.]

Question: Imagine the following situation: John Smith presents to the ED of Community Hospital. Hugo Brown, MD, in the ED performs a medical screening examination and determines that Smith has an emergency medical condition. Brown decides care should be provided by the on-call surgeon, Gina House, MD. After describing the situation to her, House says: "This is an excellent situation for my physician assistant [PA] to come in and provide the care." Does EMTALA allow for the PA to help provide on-call care for patient Smith? In place of House? What should the ED physician do?

Answer: For the longest time, the answers from the Centers for Medicare & Medicaid Services (CMS) to these questions were "no," "no," and "tell the on-call physician that his or her PA cannot provide EMTALA-required, on-call services," says Alan Steinberg, Esq., of the Pittsburgh law firm Horty Springer. Now, he says, to a limited degree, based upon what appears to be CMS’ desire to be more flexible with EMTALA and call, CMS is allowing a PA to provide such care. And that approach is quite new for CMS, Steinberg says.

CMS officials’ long-held position was rooted in the EMTALA statute itself, Steinberg explains. The statute states that physicians must provide the on-call services. Because of this assertion, CMS officials thought they were bound to the limited statutory language itself, i.e., "physicians." However, says Steinberg, in the preamble to the 2003 EMTALA regulations, CMS officials took a rather striking new position concerning the use of nonphysician practitioners in on-call services: "We agree that there may be circumstances in which a physician assistant may be the appropriate practitioner to respond to a call from an emergency department or other hospital department that is providing screening or stabilization mandated by EMTALA. However, any decision as to whether to respond in person or direct the physician assistant to respond should be made by the responsible on-call physician, based on the individual’s medical needs and the capabilities of the hospital, and would, of course, be appropriate only if it is consistent with applicable State scope of practice laws and hospital bylaws, rules, and regulations."1

CMS provided similar information in the revised EMTALA interpretive guidelines released in May 2004,2 notes Steinberg. In addition, in the guidelines, CMS expanded the list of available nonphysician practitioners to include "physician assistant, nurse practitioner, orthopedic tech."

This new language is broad enough to capture two possible situations involving call and nonphysician practitioners, Steinberg says. The first is when the PA cares for and prepares the patient with full anticipation that the on-call physician will be in to complete the care. The second situation is when the PA provides all of the on-call care needed, if appropriate.

Each hospital’s board of directors should approve the use of nonphysician practitioners who can provide such on-call services, and the particular category or categories of such practitioners, Steinberg advises. Of course, he adds, the nonphysician practitioner can provide care only within the limit of his or her state licensing rules and hospital scope of practice. Written protocols also may be worth developing, he says.

It is Steinberg’s understanding from the language of the preamble and the guidelines that the on-call physician must be contacted in every instance so that the physician can decide, based upon the actual patient situation and circumstances, whether the physician or nonphysician practitioner should respond to the call. This contact means that there cannot be a standing order by which the surgeon’s PA is to be called directly for situations "1 through 10," without first contacting the on-call physician, he says.

Steinberg emphasizes that all hospitals, medical staff leadership, and physicians need to be thoughtful and careful in their use of nonphysician practitioners in on-call services. If CMS officials think that physicians and hospitals are abusing this new, measured approach, it would not be a surprise if CMS reverted to its prior policy position, he warns. The new position actually is not cited in the newly revised regulations, he points out. The position is stated in the preamble and in the guidelines, both of which are simply guidance materials that do not bind CMS. The guidelines can be unilaterally changed at any time by CMS.

Steinberg adds this final thought: The guidelines make it clear that it is the medical screening examiner on-site who determines whether the on-call physician must come to the hospital. As stated in the guidelines: "A determination as to whether the on call physician must physically assess the patient in the emergency department is the decision of the treating emergency physician. His or her ability and medical knowledge of managing that particular medical condition will determine whether the on call physician must come to the emergency department."2

While this quotation concerns physicians, CMS has made it clear in the past that it sees the on-site screening practitioner, whomever that might be, as the person who determines whether the physician must come to the hospital to provide on-call services, Steinberg says. Accordingly, the hospital’s on-site screening practitioner would have the ultimate authority as to whether the physician has to come in or whether a nonphysician practitioner would be sufficient, he says.

References

  1. 68 Fed Reg 53,222 (Sept. 9, 2003). Codified at 42 Code of Federal Regulations Parts 413, 482, and 489.
  2. U.S. Department of Health and Human Services. Medicare, Medicaid State Operations Manual, Appendix V, Interpretative Guidelines and Investigative Procedures for Responsibilities of Medicare Participating Hospitals in Emergency Cases. Washington, DC; 2004.

Source

For more information on the Emergency Medical Treatment and Labor act, contact:

  • Alan Steinberg, Esq., Horty, Springer & Mattern, 4614 Fifth Ave., Pittsburgh, PA 15213. Phone: (412) 687-7677. Fax: (412) 687-7692. E-mail: asteinberg@hortyspringer.com.