Question: Can we tailor our Medical Staff categories so that physicians are exempt from call after a certain age, or if they have been on the staff for more than 20 years?

Answer:

It is not uncommon for medical staff bylaws to contain some form of “senior call exemption” from on-call service obligations. The Centers for Medicare & Medicaid Services (“CMS”) has stated that senior call exemption is not, on its face, an EMTALA violation. However, CMS has also not created an unconditional waiver for physicians who might fit in this category. As stated in the Preamble to the EMTALA Regulations issued in 2003:

We understand that some hospitals exempt senior medical staff physicians from being on call. This exemption is typically written into the hospital’s medical staff bylaws or the hospital’s rules and regulations, and recognizes a physician’s active years of service (for example, 20 or more years) or age (for example, 60 years of age or older), or a combination of both. We wish to clarify that providing such exemptions to members of hospitals’ medical staff does not necessarily violate EMTALA. On the contrary, we believe that a hospital is responsible for maintaining an on-call list in a manner that best meets the needs of its patients as long as the exemption does not affect patient care adversely. Thus, CMS allow hospitals flexibility in the utilization of their emergency personnel. (Emphasis added.)

68 Fed. Reg. 53,251 (Sept. 9, 2003).

A workable senior call exemption must meet these EMTALA requirements, be fair to the senior physician involved, and be fair to the remaining physicians in the department who may have more call responsibilities once the exemption is granted to the senior physician.

To accomplish this balance, it is best for any senior call exemption provisions to state that (i) meeting both years’ requirements (age and length of service) provides the physician with the ability to request the exemption (but not automatically receive it), with such request to be acted upon by the Board after it receives the recommendation of the MEC, and (ii) the Board, upon the recommendation of the MEC, may reestablish the senior physician’s on-call responsibilities if an undue call burden has developed on the remaining department physicians.