QUESTION: We have two physicians in two different specialties, all four of whom have been willing to take emergency call two days each week, but they have announced that they want their employed advanced practice clinicians (“APCs”) to take their call on weekend days; they are no longer willing personally to take any call on weekends. ED visits are rare in one of those specialties but common in the other. Does that comply with EMTALA?
ANSWER: According to CMS, hospitals must have specialty call schedules that meet the needs of patients in the community. With only two physicians in any specialty, a reasonable call schedule can be developed with arrangements to transfer patients on the days (known in advance) when those specialists are not on call. CMS will consider “all relevant factors” in determining compliance, and would expect that the call schedule be based on data showing when patients seek care in the ED for the specialties represented on the medical staff. Are these specialists on call for their own practices on weekends? That would be a factor to be considered per CMS. Another hospital to which patients in need of a specialist on a weekend are transferred might report your hospital, leading to an investigation. The specialists’ refusal to provide any weekend call thus could put the hospital in jeopardy. CMS allows APCs to participate in the response to call pursuant to policies adopted by a hospital board. However, CMS does not permit APCs to be listed on the call roster independently (even if they can practice independently in your state). CMS likely would not accept the inclusion of the APCs on the call schedule in lieu of a physician specialist (despite the newer language in the CMS Conditions of Participation and Interpretive Guidelines calling for APCs to have a greater role on the medical staff). If a patient presents on a weekend in an emergency medical condition, needing the care of the specialist who employs (and supervises/collaborates with) the APC, the physician would be responsible to come in if the ED physician determines that the specialist is needed personally. (That could be a condition of the grant of privileges.) It would be best to convene a working group of physician leaders (including an ED physician), the management team, counsel, risk management and at least one Board member to review data showing when patients present to the ED in need of various specialties, and the relative burden among the specialties on the staff. That group can develop a compliant plan. The risks are significant so it behooves every organization to develop a policy.