EMERGENCY DEPARTMENT CALL COVERAGE: PHYSICIAN PAYMENT AND OTHER TRANSFER ISSUES

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EMERGENCY DEPARTMENT CALL COVERAGEPHYSICIAN
PAYMENT AND OTHER TRANSFER ISSUES

• 22nd Annual
• Southeastern Fracture Symposium
• January 15-17-2009
• Julia Caldwell Morris, RN, MSN, JD
• Vanderbilt University

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Evolution of EMTALA On-Call Requirements and
Other Regulatory Issues
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June 13, 2002 CMS Memo to State Survey Directors

• to provide guidance to regional offices, state
  survey agency personnel and hospitals . . . to
  clarify hospital responsibilities concerning
  on-call physicians.

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• NO EMTALA requirement for 24/7, 365 days a year
  on-call Specialty coverage, no specified ratio,
  and no minimum on-call requirement.

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Hospitals

• have discretion to maintain on-call list in
  manner to best meet the needs of its patients
  within its capacity
• must have written policies and procedures to be
  followed when a particular specialty is not
  available or on-call physician is unable to
  respond
• may exempt certain medical staff from call (e.g.
  senior staff)
• may share on-call coverage and physicians may be
  on-call simultaneously at more than one hospital

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• Physicians may perform elective surgery while
  on-call, but must plan for back-up, except
• if on-call for critical access hospitals (CAH)
  and
• cannot schedule or stack surgeries so as to be
  continuously unavailable

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All Relevant Factors Test

• Number of physicians on staff
• Number of physicians in a particular specialty
• Other demands on the physicians
• Frequency with which the hospitals patients
  require on-call physicians
• Physician time off for vacations and
  teleconferences

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All Relevant Factors Test (contd)

• Provisions the hospital has made when specialist
  is unavailable or the on-call physician is unable
  to respond
• Wide variation in the size, staffing and
  capabilities of institutions subject to EMTALA

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June 13, 2002 CMS Memo re Simultaneous On-Call

• Change in policy is to promote the timely and
  economic delivery of appropriate quality of care
  to all patients in need of specialty services
  and to maximize access to care.

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• CMS declined to mandate particular levels of
  on-call coverage or specify that on-call coverage
  is required for all services offered at the
  hospital
• CMS continually emphasizes flexibility and local
  control over more prescriptive rules

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New Regulations October 1, 2008

• Final regulations mirrored the previous State
  Operations Manual (SOM) with some modifications
• New regulations found in two sections
• Basic On-Call Requirement 42 C.F.R. 489.20(r)(2)
• Specialty On-Call Requirement 42 C.F.R.
  489.24(j)

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New Regulations Oct. 1, 2008 (contd)

• Basic On-Call Requirement 42 C.F.R.
  489.20(r)(2)
• Every CAH hospital must maintain an on-call list
  of physicians who are on the hospitals medical
  staff or who have privileges at the hospital, or
  who are on the staff or have privileges at
  another hospital participating in a formal
  community plan, in accordance with
  489.24(j)(2)(iii), available to provide treatment
  necessary after the initial examination to
  stabilize individuals with emergency medical
  conditions who are receiving services required
  under 489.24 in accordance with the resources
  available to the hospital.

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New Regulations Oct. 1, 2008 (contd)

• Specialty On-Call Requirement 42 C.F.R.
  489.24(j)
• To respond to situations in which a particular
  specialty is not available or the on-call
  physician cannot respond because of circumstances
  beyond the physicians control and
• To provide emergency services are available to
  meet the needs of individuals with emergency
  medical conditions if the hospital elects to
• Permit on call physicians to schedule elective
  surgery during the time that they are on call
• Permit on-call physicians to have simultaneous
  on-call duties and
• Participate in a formal community plan.

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Impact of CMS Modification of On-Call
Requirements on Hospitals

• Perception of increase in numbers of patient
  transfers to tertiary care centers purporting to
  need specialized services
• More potential for EMTALA violations for
  transferring and receiving hospitals
• Increased pressure from Medical Staffs for
  on-call pay and hiring of hospitalists

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Impact of CMS Modification of On-Call
Requirements on Hospitals

• Increased complexity in determining obligations
  of transferring and receiving hospitals
• Does transferring hospital have a specialist
  on-call?
• Is on-call physician available, or unavailable?
  What constitutes unavailability in compliance
  with EMTALA?
• Obligations of transferring hospital if its
  on-call specialist available at another hospital

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Percent of Hospitals Losing Specialty Coverage in
the ED for Any Period of Time in Last 24 Months
and Reasons Cited
55 percent of community hospitals experienced
gaps in specialty coverage in the ED.
Percent of Above Citing Reason as Factor in Loss
of Coverage
Source AHA 2007 Survey of Hospital Leaders.
Respondents could check more than one reason
for loss of specialty coverage.
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Gaps in coverage were most often reported for
orthopedics and neurosurgery.
Percent of Hospitals Reporting Loss of Specialty
Coverage for Any Period of Time in 2007
Source AHA 2007 Survey of Hospital Leaders
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Nearly half of EDs are at or over capacity
Percent of Hospitals Reporting ED Capacity Issues
by Type of Hospital, 2007
65
31
73
42
48
Source AHA 2007 Survey of Hospital Leaders
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Tennessee Law on Patient Transfers

• TCA 68-11-701 Legislative Intent
• It is the intent of the general assembly that
  the department of health, acting through the
  board for licensing health care facilities
  created in
• 68-11-203, shall promulgate rules . . . to
  regulate the transfer of inpatients between
  hospitals, and that inpatients should not be
  involuntarily transferred for purely economic
  reasons, but should receive the needed medical
  care as required by chapter 140, part 3 of this
  title.

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Tennessee Law on Patient Transfers

• TCA 68-11-703 Notice and correction of
  violations
• If the board for licensing health care
  facilities finds that a hospital is violating or
  has violated this part, or a rule adopted
  pursuant to this part, the board shall notify the
  hospital of its finding and shall provide the
  hospital a reasonable opportunity to correct the
  violation.
• Now State might also report, including
  self-reported violation, directly to CMS

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Tennessee Law on Patient Transfers
 
 
 

• TCA 68-11-704 Suspension or revocation of
  license
• A violation of the provisions of this part is
  deemed to constitute sufficient grounds for the
  suspension or revocation of the hospitals
  license, as provided at
• 68-11-207, and shall further subject the
  institution to the penalties provided in
• 68-11-213.

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Tennessee Law on Patient Transfers

• Rule 1200-8-1-.01(43) Involuntary Transfer
• The movement of a patient between hospitals,
  without the consent of the patient, the patients
  legal guardian, next of kin or representative.

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Problems to Avoid

• Disagreement between ED physician and on-call
  specialist
• Referring ED patients to on-call physicians
  office
• Selective call for private patients
• Refusal of on-call physician to come in

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• Anti-Kickback Problems to Avoid
• Preferential acceptance of transfers from valued
  referring facilities and MDs
• FMV for on-call payments

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Determining Fair Market Value for On-Call Pay

• FMV Standards
• Internal Revenue Service
• Valuation industry standards
• Health care regulatory definitions
• Stark law
• Anti-kickback statute

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JCAHO

• Standard MS.1.30
• Neither the organized medical staff nor the
  governing body may unilaterally amend the medical
  staff bylaws or rules or regulations
• Rationale
• Impact

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Possible Solutions

• Centralized Transfer Centers
• Uniform information intake and documentation
• Reduce financial discussions prior to
  determination of whether or not patient has EMC
  requiring specialized services of receiving
  hospital
• Facilitate conversations between transferring and
  receiving physicians
• Maintenance and utilization of data

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Cases/Recent Developments

• Millard vs. Corrado
• Hongsathavij vs. Queen of Angels/Hollywood
  Presbyterian Medical Center
• Phipps vs. Bristol Regional Medical Center