CMS guidance offers scant clarification on EMTALA regs

Guidance doesn’t resolve issue of EMTALA’s physician on-call requirements

The Centers for Medicare & Medicaid Services (CMS) last month issued guidance aimed at answering nagging questions about inconsistent regional enforcement of the Emergency Medical Treatment and Active Labor Act’s (EMTALA) physician on-call requirements. But health care attorneys say the two memoranda released June 13 could spell trouble for hospitals. "The memoranda contain no bright line’ guidance, and providers will need to be very cautious in applying the information in the documents," asserts David Vukadinovich of Foley and Lardner in Los Angeles.

The two memoranda — one in the form of a Q&A and the other addressing the issue of physicians being on call simultaneously at more than one hospital — closely follow a proposed rule on EMTALA issued by CMS May 9. In that proposal, the agency mainly reiterated its long-standing interpretation regarding on-call coverage requirements.

According to Vukadinovich, neither the June 13 memoranda nor the May 9 proposed rule provides any clear-cut guidance for hospitals. "Although the June 13 memoranda frequently uses appealing words and phrases, such as flexibility’ and all relevant factors,’ to describe CMS’s policy toward this issue, hospitals and medical staffs should be cautious in revising their on-call policies," he warns.

Vukadinovich says the new guidance, which does not carry the weight of a regulation, mainly provides broad criteria for hospitals to consider when making these decisions. As a result, he predicts, CMS surveyors likely will maintain broad discretion in issuing deficiencies.

The Q&A states that CMS does not require physicians to provide on-call coverage 24 hours per day, 365 days per year. It explains that if a hospital is unable to provide a certain service to its patients because of a lack of on-call coverage, the hospital may appropriately transfer the patient. But Vukadinovich says the Q&A merely indicates that the degree of on-call coverage should be based on "the capability of the institution and the well-being of the patient."

Gregory Cochran, an attorney with Foley and Lardner’s San Francisco office, says the Q&A addresses the closely related issue of how frequently physicians must be on call by explaining that CMS expects hospitals to provide services based on the availability of physicians required to be on call. However, CMS goes on to say that this availability depends on such factors as practice demands, vacations, and days off, as well as on the financial means of the hospital, he adds.

The Q&A also explains that CMS allows flexibility in providing coverage and that such an exemption does not, by itself, violate EMTALA, "as long as the exemption does not affect patient care adversely." However, a surveyor might not approve a senior staff exemption if patient needs were not met, Cochran says. "The Q&A memo does not provide any further guidance about how a hospital’s exemption practices might be deemed to affect patient care adversely," he explains.

"One could argue that even one less specialist available to emergency patients has an adverse effect on patient care, especially if the absence of that physician requires the hospital to transfer more patients for stabilizing treatment," Cochran adds. "By stating that exemption policies do not per se violate EMTALA, this portion of the Q&A memo is helpful but leaves important unanswered questions."

CMS also addresses the issue of physicians being on call at more than one hospital within a geographical area. Cochran says the agency emphasizes in both memoranda that when an on-call physician is available simultaneously at more than one hospital, each of the hospitals involved must know that, and they must have policies and procedures to follow when an on-call physician is unable to respond because he or she has taken a call at another facility.

CMS simply states that hospitals "must meet the needs of patients who present for emergency care," Cochran notes. In the opinion of a surveyor, that could be a very high standard, he cautions.

In what Vukadinovich calls one of the only "straightforward pronouncements" offered by CMS, the Q&A states group names may not be used to identify an on-call physician. "Hospitals who are relying on groups to provide call coverage will need to consider modifying their approach," he says.

"The Q&A memo expressly disavows the Rule of Three,’" Vukadinovich adds. Some hospitals have used the "Rule of Three," which requires full coverage for a specialty whenever there are at least three physicians in that specialty on the staff.

"CMS explains that no specific ratio will be determinative of a hospital’s obligation to provide coverage," he says. However, the additional language included in the memo allows considerable discretion for surveyors and does not give hospitals concrete guidance, he says.