Question: We have always had a Senior Active Staff Category that exempts members from call. However, as more and more members begin to qualify for this exemption, we are beginning to have some concerns about unduly burdening our younger physicians. We’ve also been told that a senior exemption of this type might violate EMTALA. How do we handle this situation?
Answer: It is not uncommon for Medical Staff Bylaws to contain some form of “senior call exemption” from on-call service obligations. A “senior call exemption” is typically based on the physician’s age (usually in the 65 to 70 years old range), and/or the number of years of service on the Medical Staff. But there have always been practical issues concerning this type of exemption, and as the “graying” of the Medical Staff continues, these issues are becoming more pronounced. For example, a senior call exemption could mean that, for a specialty with only a small number of specialists on the staff, one or two specialists would have to take 100% of call. At its worst, a senior call exemption could mean that no Active Staff specialists are available for call.
In terms of EMTALA, CMS has stated that senior call exemption is not, on its face, a violation of the Act. But while not necessarily prohibited, CMS has been clear that any age/years of service-based call exemption cannot interfere with the required on-call schedule. Therefore, 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 that balancing, we recommend that any senior call exemption provision state that the decision to excuse a member from on-call responsibilities not be unilateral (i.e., determined by the physician), but be subject to a determination by the Medical Executive Committee and Board based on the consideration of hardship on others who serve for the specialty. It should also be recognized that leadership may need to re?establish a senior physician’s on-call responsibility if an undue call burden has developed on the remaining department physicians.