Beware: Dual staffing is legal but risky

You might not have heard of dual staffing yet, but chances are you will soon. An increasing number of managed care organizations (MCOs) such as Kaiser Permanente in Colorado, Ohio, and California, are staffing EDs with their own physicians who see only the plan’s patients. Many practitioners of emergency medicine argue that the practice is a violation of the Emergency Medical Treatment and Labor Act (EMTALA), because patients are not receiving equal care based on their insurance status.

In a special advisory bulletin was issued by the Office of the Inspector General (OIG) in Washington, DC, and the Health Care Financing Administration (HCFA) in Baltimore, the question was addressed for the first time. It was ruled that dual staffing does not violate EMTALA as long as there is equal access to care for both sets of patients.

However, the bulletin made it clear that the practice still carries serious risks, warns Charlotte Yeh, MD, FACEP, medical director of Medicare Policy at the National Heritage Insurance Co. in Hingham, MA. "If you allow dual staffing in your ED, you run the risk of violations because it’s clear that HCFA and OIG will monitor these dual staffing arrangements accordingly," she stresses.

You need to take steps to ensure there are no violations of EMTALA, she advises. "For instance, there should be a procedure that allows patients to cross over between tracks when appropriate. So if one side of the ED is very busy and the other side is slow, there should be a way you can utilize both tracks."

6 potential violations

The bulletin gave these examples of potential violations:

• The emergency department directs a hospital-owned and operated ambulance differently in field care or facility destination depending on which members of a dual staff (that is, MCO or non-MCO physicians or practitioners) are on the radio to emergency medical services (EMS) or are expected to see the patient.

• The emergency department alert status affecting acceptance of EMS cases differs depending on which "side" (MCO or non-MCO) is expected to see the patient.

• The MCO or non-MCO track is understaffed or simply overcrowded, and a patient in a particular track is subjected to a delay in screening and stabilizing treatment, even though a physician in the alternative track was available to see the individual.

• There is no emergency department policy or procedure, custom, or practice that requires crossover coverage between the dual staffs as required for patient care. (Delays in screening or stabilization of patients on one track but not the other are delays in screening or stabilization based on the insurance status of the individual. Thus, they represent potential violations of EMTALA.)

• The hospital’s emergency department quality oversight plan differs between the two "sides" (MCO and non-MCO) of the dually staffed ED.

• Protocols for transfer of unstable patients differ other than administratively. For example, the substance of stability determination criteria between the two staffs may differ, or patients who are unstable may be transferred routinely to different facilities that are not equivalent to each other in level of care or distance, and their destinations depend on their insurance status.

The bulletin stressed the risks of dual staffing, but some EMTALA experts were hoping that HCFA and the OIG would rule it was a clear-cut violation. "Dual staffing with physicians seeing only managed care patients is discriminatory," argues Larry Bedard, MD, FACEP, former president of the American College of Emergency Physicians (ACEP) in Dallas and president of Bedard & Associates, a Sausalito, CA-based consulting firm specializing in ED management and EMTALA. "If a white, insured, middle-class patient gets seen immediately, and an indigent patient waits for two hours, that is an EMTALA violation," he says. "To comply with EMTALA, the doctors need to see the next available patients, not cherry-pick their own HMO patients."

The purpose of EMTALA is to ensure patients get the same standard of ED care, regardless of their insurance status or ability to pay, says Bedard. "Dual staffing results in different access and different standards of care. Patients aren’t getting equal care if they have different pharmacies and different access to specialists."

To educate administrators about EMTALA concerns and dual staffing, give them a copy of ACEP’s position paper and letter about dual staffing sent to HCFA, Bedard suggests. (Both documents can be downloaded from the ACEP Web site at www.acep.org.)

You can use those materials to educate hospital administrators, Bedard advises "You can say, Here is a nationally recognized authority who thinks dual staffing should be illegal, and here are all the problems they see with this practice.’"