May 28, 2015

QUESTION:        We have a very small neurosurgery department at our hospital, where the active members of the medical staff are obligated to provide ED call. Assuming that we only have two neurosurgeons that are able to cover ED call, does this mean they must each take 180 days of call each year? Our physician leaders are telling us that this is a tremendous burden, but we do not want to violate EMTALA.

ANSWER:        A tough question, made even tougher by the fact that CMS has provided very little guidance on the reasonableness of hospital call schedules. In fact, the best rule of thumb comes from historical guidance from CMS that CMS now specifically denounces!

To begin, it is important to keep in mind that CMS does not require 24/7/365 coverage. Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s coverage arrangements. Frankly, this is not a very helpful rule, so many organizations that we work with take a “rule of three” approach, as it relates to provider on-call responsibilities. This approach is based on prior, informal guidance from CMS that said if there were three physicians in a particular clinical specialty on a medical staff, the hospital had the obligation to provide emergency services on a 24/7/365 basis for that specialty. This has been extrapolated to mean that, in a single physician specialty, call would need to be provided only one-third of the time (i.e., 10 days/month). This would mean the hospital above would have neurosurgery coverage for 20 days out of the month.

While CMS has explicitly denied the rule of three ever existed, we think this is a relatively safe position to take in terms of EMTALA compliance. Of course, we have seen other facilities adopt a “rule of four” or even a “rule of five” where they have found the obligation created under the “rule of three” to be too burdensome or if there are other “relevant factors” that would justify another approach (e.g., the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc.).