Reader Question: EMTALA requires docs to be on call, but not 24/7

Reader question: Does the Emergency Medical Treatment and Labor Act (EMTALA) require that our hospital’s medical staff be required to provide on-call physician services 24 hours a day and 365 days a year? We know the law requires that physicians be on call if we provide emergency service, but that requirement creates a lot of scheduling headaches and doctor/hospital friction for risk managers, so we’re wondering if the hospital’s medical staff are required to provide on-call physician services at all times.

Answer: The answer is "not necessarily," says Lowell Brown, JD, a partner with the law firm of Foley and Lardner in Los Angeles and an expert in EMTALA interpretation. As with most legal issues, the exact answer will depend on the particulars of your own situation. But one thing is clear, he says: EMTALA does not require every hospital to have every specialty on call at all times.

"This question comes up all the time. It’s one of the hottest questions there is right now regarding EMTALA compliance," Brown says. "There is a succinct way to describe the obligation, but it takes a lot of thought to apply it. The basic requirement is that you must have a call panel, no exceptions. But it should be a reasonable reflection of the active medical staff."

"Active" is the key word in interpreting what kind of call panel you must have in place. Most hospitals have some physicians who are on staff at a courtesy level that requires only a few patients a year to remain, while "active" status usually requires much more frequent use of the hospital. Your EMTALA call panel should represent all active physicians but not necessarily any courtesy-level physicians. Part of the reason, Brown says, is that you should be able to vouch for the competence of physicians you put on call panels. Their level of activity should be high enough to allow you to do that.

EMTALA requires that an individual be evaluated and provided with medical support services and/or transfer arrangements that are consistent with the capability of the institution and the well being of the patient. The Social Security Act at §1866(a)(1)(I)(iii) requires that hospitals have a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition. The hospital’s capabilities include the skills of a specialist who has staff privileges to the extent that the hospital requires the specialist to furnish these services. If a physician on the list is called by a hospital to provide emergency screening or treatment and either refuses or fails to arrive within a reasonable time, the hospital and that physician may be in violation of EMTALA.

The Centers for Medicare & Medicaid (CMS) State Operations Manual (SOM) further clarifies a hospital’s responsibility for the on-call physician. The SOM (Appendix V, page V-15, Tag A404) states that "each hospital has the discretion to maintain the on-call list in a manner to best meet the needs of its patients," and "physicians, including specialists and subspecialists (e.g., neurologists) are not required to be on call at all times. The hospital must have policies and procedures to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control."

Available physicians will dictate on-call panel

The issue has confused many providers, so much so that some professional organizations have offered guidance. The American Academy of Orthopedic Surgeons (AAOS), for instance, provides an opinion based on Memorandum Ref #S&C-02-34, "On-Call Requirements — EMTALA," published June 13, 2002, by CMS and the American Medical Association’s EMTALA Quick Reference Guide For On-Call Physicians. Using those references, "The AAOS interprets the statute and the State Operations Manual to mean that CMS does not require that a hospital’s medical staff provide on-call coverage 24 hours a day and 365 days a year." When a hospital does not have on-call coverage for a particular specialty, "that hospital lacks capacity to treat patient needing that specialty service and it is therefore appropriate to transfer the patient because the medical benefits of transfer outweigh the risks," the AAOS advises.

The simple number of physicians involved also will influence how much you have schedule physicians for your EMTALA coverage. Sometimes you just won’t have enough to do a 24/7/365 call panel; and if so, that is not an EMTALA violation, Brown says.

Applying that advice means that if you have a large hospital and many physicians in every specialty, then you have to cover those specialties 24/7/365 on your EMTALA call panel. If you have a hospital on the other end of the spectrum, such as a small rural facility, there may be, for instance, only one neurosurgeon on the staff.

"He doesn’t have to be on call 24 hours a day and seven days a week," Brown says. "You can set up a schedule when he is on call. It might be only one day a week, and six days a week you can’t provide EMTALA coverage for neurosurgery. As long as he and the hospital adhere to that schedule, then you won’t be violating EMTALA."

But even that hospital with one neurosurgeon still must schedule him or her some, to whatever degree seems reasonable. It’s not acceptable to say that since you have just one neurosurgeon, your EMTALA call panel won’t cover neurosurgery. Since your hospital provides that service, it must be reflected on your EMTALA call panel even if the frequency is nowhere near 24/7.

"It becomes a question of reasonableness," Brown says. "If you have one guy and he’s on call once a year, that’s probably not going to pass muster."

Brown cautions that physicians will sometimes take advantage of these distinctions to avoid your EMTALA call panel. If you restrict your call panel to members of your active staff, some physicians may decide to reduce their activity level so that they are only on courtesy staff and don’t have to take calls. Then they will go to the hospital across town where they aren’t required to take calls and be more active.

"That happens all the time, unfortunately," he says. "It’s a very unfair provision of the law that it forces this obligation on the hospitals, when in most cases they don’t employ the physicians and don’t have any control over them."

Brown cautions that risk managers can’t use this advice as a loophole when you’re having trouble scheduling physicians. The requirements for your call panel are based on what physicians practice at your facility, independent of how willing or unwilling those doctors are to serve on your EMTALA call panel.

"This doesn’t mean you can schedule a particular specialty only once a month because the physicians don’t want to do it any more often. That physicians don’t want to take call is not an excuse," Brown says. "It comes down to what I call the straight-face test. If you can say with a straight face that, yes, this is a reasonable reflection of our active staff and we’re offering this in good faith, then you’ll probably be OK."