advanced practice professionals

May 22, 2025

Posted on by Courtney Patterson

QUESTION:
Can we add advanced practice professionals to our on-call schedule for our emergency department?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Short answer:  nope.  Including APPs on the on-call list is prohibited by the Emergency Medical Treatment and Labor Act (“EMTALA”).  Under EMTALA, hospitals with emergency departments are required to provide Medical Screening Examinations to anyone who presents to the hospital seeking emergency care, regardless of their ability to pay.  A key component of EMTALA compliance is the requirement that hospitals maintain a list of on-call physicians who can provide the necessary treatment to the patient.  Specifically, CMS guidelines state, in part:

The list of on-call physicians must be composed of physicians who are current members of the medical staff or who have hospital privileges.  If the hospital participates in a community call plan, then the list must also include the names of physicians at other hospitals who are on call pursuant to the plan.  The list must be up-to-date, and accurately reflect the current privileges of the physicians on call.  Physician group names are not acceptable for identifying the on-call physician.  Individual physician names are to be identified on the list with their accurate contact information.

CMS recognizes that advanced practice professionals, like physician assistants and nurse practitioners, are increasingly integral to emergency department care and, therefore, can perform medical screening examinations as “Qualified Medical Personnel (QMP)” within their scope of practice and in accordance with hospital bylaws.  Moreover, if permitted under hospital policy, the on-call physician may send an APP as the physician’s representative to appear at the hospital and provide further assessment and stabilizing treatment.  However, the on-call physician remains ultimately responsible for providing the necessary care, regardless of who appears in person.

It is also important to note that, in the event the ED physician disagrees with the on-call physician’s decision to send an APP and, instead, requests the on-call physician to present to the ED, then the on-call physician is required under EMTALA to appear personally.  Therefore, it’s recommended that the decision to send an APP be made in collaboration with the ED physician.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.

October 10, 2024

Posted on by Courtney Patterson

QUESTION:
We are amending our medical staff governance documents and considering giving Advanced Practice Professionals (“APPs”) a larger role in medical staff affairs.  Do you have any recommendations based on your experience working with other hospitals?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
With the ever-increasing role that APPs, such as physician assistants and nurse practitioners, play in the delivery of health care in hospitals, we are seeing many hospitals across the country wrestle with this question.  Unfortunately, there is not a “one-size-fits-all” answer and the appropriate solution needs to take into consideration federal and state regulations and the culture of your medical staff and hospital, among other things.

Let’s start with the regulations.  The Centers for Medicare & Medicaid Services Conditions of Participation (“CoPs”) defer to state law when it comes to appointing APPs to the medical staff:  “The medical staff must be composed of doctors of medicine or osteopathy.  In accordance with State law, including scope-of-practice laws, the medical staff may also include…non-physician practitioners who are determined to be eligible for appointment by the governing body.”  42 C.F.R. §482.22(a) (emphasis added).  However, you want to be sure to check your state’s laws and regulations to determine if those sources are more restrictive.  By way of example, Pennsylvania limits medical staff membership to physicians and dentists.  28 Pa. Code § 107.2.  Even though Pennsylvania has a “structured exception” allowing hospitals to admit podiatrists to the medical staff, there is no corresponding exception for APPs.  Compare Pennsylvania’s restrictive approach with the approach taken by Colorado, which allows both physicians and non-physician practitioners to be on the medical staff.

Even in the states that permit APPs to be on the medical staff, we are seeing a variety of approaches.  Some hospitals make APPs eligible for medical staff membership, including appointment to the Active Staff.  That being said, these hospitals impose appropriate limitations on their prerogatives when compared to physician members of the Active Staff such as not being able to serve as the President of the Medical Staff (the Interpretive Guidelines to the CoPs say that the President of the Medical Staff “must be a doctor of medicine or osteopathy, or, if permitted by state law where the hospital is located, a doctor of dental surgery, dental medicine, or podiatric medicine”).  While we don’t see this approach taken frequently, it is more common with Critical Access Hospitals or smaller hospitals where the majority of clinical services are provided by APPs.

A more common approach is gradual integration of APPs into medical staff functions.  For example, the medical staff may begin by creating an APP Credentials Committee which reviews applications of APPs and reports to the regular Credentials Committee, or appoint APPs to the Credentials Committee to tap into their expertise when it comes to state scope of practice laws for APPs, how they practice, and what they are permitted to do in similarly-situated hospitals.  Some hospitals are also appointing an APP to the Medical Executive Committee and Multi-Specialty Peer Review Committee.  It varies with respect to whether they are given voting rights since we have seen some physician members of the medical staff express discomfort with an APP, who may have a supervising agreement while practicing in the hospital, evaluating the care they provide as a part of one of these committees.

In conclusion, APPs are increasing in number and have a growing role in providing clinical services in hospitals.  If your medical staff has not yet addressed this issue, the odds are that it will need to in the future.  Nevertheless, these are interesting and exciting issues whose solutions can result in a more vibrant and robust medical staff and hospital.

If you have a quick question about this, e-mail Charles Chulack at CChulack@hortyspringer.com.