On-call physicians become EMTALA hot button

How to handle the on-call physician requirement in the Emergency Medical Treatment and Labor Act (EMTALA) is a vexing question that many hospitals are grappling with. It also is a question that likely won’t be solved by the proposed changes to the anti-patient dumping regulations released last month by the Centers for Medicare and Medicaid Services (CMS), argues Lowell Brown, a partner with Foley and Lardner in Los Angeles.

Currently, the statute provides that, as part of its Medicare provider agreement, a hospital must have an on-call panel representing the specialties available on the medical staff to treat patients who come to the emergency department, Brown explains.

The problem is that there is no legal obligation on physicians, he says. Hospitals often address this problem through medical staff bylaws that include this as a condition of membership on the medical staff. "One of the requirements for being a member of the average hospital medical staff is that you have to take calls," he explains. "If you don’t take calls, you can’t be on the staff."

The legal obligation to have and enforce a call panel still rests with the hospital. However, physicians do have an obligation once they are on call.

According to Brown, the central issue is whether calls should be mandatory or voluntary for medical staff members. Brown says the proposed regulation tries to address this issue through the following three-sentence rule:

  • Each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of the hospital’s patients.
  • Physicians, including specialists and sub-specialists, are not required to be on call at all times.
  • The hospital must have written policies and procedures in place to respond to situations in which a particular specialist is not available or the on-call physician cannot respond because of circumstances beyond the physician’s control.

While that may be music to physicians’ ears, it does not solve the problem, Brown argues. In fact, it might even create more confusion because physicians who do not want to take calls may read it as evidence that they do not have to. "I don’t think CMS intended that, but the language is ambiguous," he asserts.

According to Brown, the only current solution is for the hospital staff and medical staff to share the burden. "As long as there is a will for both sides to work together, the pain can be spread so that nobody is bearing all of it," he says.

Brown says there are several ways to accomplish that. For example, in the latest regulation, CMS has approved the use of call schedules that leave significant discretion with hospitals to design call panels that fit both patient needs and the composition of their medical staff. "If you have a town with five hospitals and two neurosurgeons, it is a terrible myth to think those two neurosurgeons have to be on call 24 hours a day, seven days a week," he explains.