February 13, 2020

QUESTION:            We are revising our Medical Staff Bylaws and a question has come up about whether we could add a “years of service” exemption that let’s physicians opt-out of their ED call obligations if they have been on the Medical Staff for more than 20 years. Is this okay under EMTALA?

ANSWER:            It is. CMS recognized the practice of giving age or year’s of service based exemptions in the 2003 Preamble to the updated EMTALA Regulations, stating:

“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 allows hospitals flexibility in the utilization of their emergency personnel.” (Emphasis added).

Obviously, the highlighted language indicates that while such exemptions are permissible under EMTALA, the exemptions cannot interfere with a hospital’s ability to maintain adequate on-call services.

Therefore, we recommend the MEC approve any request for such an exemption, since allowing an exemption to take effect automatically could create EMTALA problems, depending on the number of remaining physicians in the specialty.  Furthermore, we also recommend including language that states the MEC can require a physician who was previously given an exemption to return to the call schedule (on a temporary or permanent basis) if the needs of the Hospital change.

September 12, 2019

QUESTION:        Our Bylaws state that all of the members of the Active Staff are required to provide call coverage for our ED.  Assuming that we only have two neurosurgeons who are able to cover the ED each month, does this mean they must take 15 days of call each?  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, it has even denounced a common “rule of thumb” that many hospitals have decided to follow over the years.

We are referring to the “rule of three” approach, which 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 specialty with fewer than three physicians (like in the question above), each physician should provide 10 days/month of call coverage.

But before you start revisiting your own On-Call Policy requirements, keep in mind that CMS never put this rule in writing and now denies it ever existed.  Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s call schedule.  This means that each hospital should consider factors like the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc. to determine its on-call schedule.

This may not be as helpful as a “rule of three” or “rule of five” approach that we still see some hospitals follow, but it is important to recognize CMS does not have a bright line rule that require 24/7/365-day coverage for each specialty, so there is some flexibility.

August 16, 2018

QUESTION:        What responsibility does the hospital have under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) to stabilize an individual with an emergency medical condition once he/she is admitted as an inpatient at the hospital?

ANSWER:            The short answer is that the stabilization obligation under EMTALA is satisfied and ends upon patient admission.

Under EMTALA, it is required that when an individual comes to an emergency department, the hospital must provide an appropriate medical screening examination within the capability of the hospital’s emergency department and, if an emergency medical condition is determined to exist, provide any necessary stabilizing treatment, or an appropriate transfer.  However, EMTALA further provides that if the hospital admits the individual as an inpatient for further treatment, the hospital’s obligation to stabilize ends (42 C.F.R. § 489.24(a)(1)(ii)).  In fact, the Interpretive Guidelines to EMTALA reiterate that EMTALA does not apply to hospital inpatients.  The existing hospital Conditions of Participation protect individuals who are already inpatients of a hospital and who experience an emergency medical condition.

In fact, in a recent case noted in last week’s version of the Health Law Express, Walley v. York Hospital, the court looked to the history of EMTALA and its application to inpatients.  Back in 2002, recognizing a difference of opinion among courts, the Centers for Medicare & Medicaid Services (“CMS”) did propose applying the stabilization requirement to inpatients admitted in order to stabilize emergency medical conditions.  However, after negative public comments and consideration of federal case law, CMS, in 2003, adopted the version that is now in effect, that the stabilization requirement is satisfied and ends upon patient admission as far as federal remedy is concerned.  After reexamining the issue in 2012, CMS once again chose to leave the regulation as it stands.  (Walley v. York Hosp., CIVIL NO. 2:18-CV-126-DBH (D. Me. July 27, 2018).)

However, it is important to note that CMS and case law recognize that a hospital must admit an individual as an inpatient in good faith to avoid liability under EMTALA. Specifically, if a hospital did not admit an individual as an inpatient in good faith with the intention of providing treatment, such that the hospital used the inpatient admission as a means to avoid EMTALA requirements, then the hospital is considered liable under EMTALA and actions may be pursued.

July 19, 2018

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.

Be sure to join Ian Donaldson and Barbara Blackmond for The Complete Course for Medical Staff Leaders!  We cover EMTALA basics, as well as solutions to common dilemmas, in an entertaining way.

January 18, 2018

Our Active Staff category requires members to take emergency call.  In many specialties, we struggle with finding physicians willing to take their fair share of call.  In orthopedics, however, we have a group based primarily at another hospital outside our system who own their own diagnostic facilities, to which they end up referring many patients from our ED for services we can provide.  A few patients have expressed concerns about why they were sent to another facility.  A few patients have reported that the orthopedic surgeon said the other facility was much better and newer, with no wait time.  What can we do?

The purpose of the emergency call obligations connected to Active Staff appointment and privileges is to enable the hospital to comply with EMTALA and provide care to patients who come to the hospital’s ED, not to provide a source of referrals of patients to facilities owned by on-call specialists.  If a patient needs an X-ray, in order to evaluate and stabilize an emergency medical condition, the patient should not be sent elsewhere (unless the patient specifically so requests) because that could implicate EMTALA.  Follow-up care not needed to treat or stabilize the condition that brought the patient to the ED could be provided elsewhere, and patients can choose where to receive follow-up care.  However, on-call specialists should not be marketing their facilities by in essence disparaging the hospital’s services.  (Of course, if patients are choosing to receive tests and other services elsewhere, upgrading facilities and adding staff to minimize wait times is a good idea, if feasible.)  Some hospitals limit call in some specialties to physicians who are under contract (or employed).  The Board can determine how call will be handled in different specialties.  Call is a responsibility, not a right or a “privilege.”  (It should not be included on delineation forms as a privilege.)  So long as departments don’t vote (which could give rise to conspiracy allegations), the Board and MEC would be free to establish how the hospital will satisfy its EMTALA obligations.

October 19, 2017

QUESTION:        The hospital across town is very lax with its on-call schedule. Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient. Our physicians feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

ANSWER:            Yes. Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer. A lateral transfer occurs where the same services are provided at both the sending hospital and the receiving hospital. Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.” However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.” Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient. This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).

This requirement has put hospitals across the country, and their on-call physicians, in a difficult position. Essentially, this requirement can make on-call physicians at Hospital B (the receiving hospital) responsible not only for Hospital B’s ED patients, but also potentially for many of Hospital A’s (the sending Hospital) ED patients. That could be because Hospital A doesn’t have the needed specialist on its medical staff or because Hospital A has a less rigorous call schedule than Hospital B.

To learn more about this issue, please join Phil Zarone and Ian Donaldson on November 7, 2017 for an audio conference on “On-Call and EMTALA Policies.” For more information, click here.

October 12, 2017

QUESTION:        Our hospital operates an emergency room and has an inpatient behavioral health unit.  Our emergency room has evaluated a patient with mental illness on numerous occasions, typically on “emergency certificates” under our state law.  In the past, this particular patient has been violent and assaultive toward staff in the emergency room.  Under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), are we permitted to refuse to admit this patient to our behavioral health unit the next time he comes to the emergency room with a psychiatric emergency?

ANSWER:            That’s a very good question, and for any individual hospital, the best answer probably comes from its CMS Regional Office.  Each Regional Office has EMTALA “jurisdiction” over its region.  It is the Regional Office that determines whether there has been an EMTALA violation or not if a complaint is received.

Under EMTALA, the hospital is required to perform a medical screening examination on the patient when he is brought to the emergency room to determine if the patient has an emergency medical condition.  The definition of “emergency medical condition” under EMTALA includes a psychiatric emergency medical condition.

If the patient has a psychiatric emergency medical condition, the EMTALA duty on the hospital is to stabilize that emergency medical condition if the hospital has the capacity and the capability to do so.  Because this hospital has a behavioral health unit, it has the services and resources to stabilize a psychiatric emergency medical condition.  (That’s assuming the behavioral health unit has an available bed.)

Many hospitals do not have forensic units, nor are they staffed to address violent psychiatric patients.  The EMTALA regulations state that a hospital is to provide stabilizing treatment within the capabilities of the staff and facilities available at the hospital.  Thus, there is an EMTALA argument to make that treating a violent psychiatric patient does not come within the capabilities of a hospital’s behavioral health unit.

However, in our discussions with one CMS Regional Office, a representative informed us that the Regional Office expects all behavioral health units to be able to handle a certain level of violence in a psychiatric patient.  If a complaint was ever brought about the rejection of a patient with a psychiatric emergency medical condition, the Regional Office would have its own psychiatrist review and determine whether the violence level of the patient exceeded the behavioral health unit’s capabilities and resources.  If the Regional Office psychiatrist felt that the behavioral health unit could have managed the patient, there would be an EMTALA violation.

Notwithstanding the EMTALA implications of the situation, the most important consideration is the safety of the staff of the hospital and the patient.  A more proactive approach might be useful in which representatives from the hospital (including its security staff) sit down to discuss a method to handle violent patients in general.  The development of this method may be assisted by involving the local police, especially if the circumstances involve a patient or patients who have been assaultive in the past and/or have threatened to assault hospital staff in the future.

This is a very difficult issue, but a well-defined plan or policy that includes input from all those potentially involved would help in understanding the issue, achieving buy-in, complying with the law, and, most importantly, protecting staff and patients.

For more information on this topic, join Susan Lapenta and Phil Zarone on November 7, 2017 for the On-Call and EMTALA Policies audio conference (part of the Horty, Springer & Mattern Grand Rounds audio conference series).

June 15, 2017

QUESTION:        What’s this I hear about the penalties for EMTALA violations being doubled?  Haven’t we suffered enough?

ANSWER:            I agree about the suffering, but sorry, that’s not going to affect the doubling of the EMTALA civil monetary penalties.

As difficult as EMTALA can be, until a few months ago, it had actually been years since the federal government issued a new EMTALA regulation, guideline or bulletin.  But that’s not a complaint; EMTALA compliance is difficult enough with the existing rules, let alone any new ones.

So it’s interesting that the Office of Inspector General (the “OIG”) came out in December 2016 with some new regulations.  The OIG revised its regulations concerning penalties, including civil monetary penalties (“CMPs”), that it can impose for EMTALA violations.  These new rules were released in the OIG’s Final Rule concerning Medicare and State Health Care Programs; Fraud and Abuse; and Revisions to the OIG’s CMP Rules.

These new OIG regulations didn’t create new EMTALA responsibilities to be carried out.  Instead, they simply addressed the OIG’s penalty rules.  The most eye-popping of these concern the amount of the CMPs, now adjusted per inflation.

By the Act itself, which went into force in 1986, the OIG can fine hospitals with 100 beds or more and physicians up to $50,000 per EMTALA violation.  Hospitals under 100 beds can be fined $25,000 per violation.

Noting that those figures have never been adjusted for inflation over the past 30-plus years, the OIG adjusted.  Now, hospitals with 100 beds or more and physicians can be fined up to $103,139 per violation.  Hospitals under 100 beds can be fined up to $51,570 per EMTALA violation.

The OIG did not revise the EMTALA-stated penalty amounts themselves; the EMTALA regulations still describe CMPs for $50,000 and $25,000.  This is an inflation-adjusted increase detailed in another HHS-published document regarding CMPs.  (A $50,000 penalty doesn’t get you as much in 2017 as it did back in 1986.)

The OIG has not suddenly become “penalty hungry” when it comes to hospitals, on-call physicians, and other EMTALA matters.  The OIG suggested these clarifications in proposed regulations it issued back in May 2014.  Both the Affordable Care Act and the Medicare Prescription Drug, Improvement and Modernization Act enhanced the OIG’s authority to impose CMPs and to exclude individuals from participating in federal health care programs.  This was the OIG taking advantage of those two statutes to clean up and clarify its EMTALA penalty rules.

As the new CMPs basically double the penalty amount, it’s also important to understand that the OIG’s CMPs apply to each EMTALA violation, and a hospital or a physician can violate EMTALA more than once in the care of a single patient.  It’s not uncommon for an EMTALA wrongdoing to include multiple violations.  With CMPs of now roughly $100,000 per EMTALA violation, a hospital can find itself with the potential for some pretty stiff fines.

June 8, 2017

QUESTION:        Last week we had a 37-week pregnant patient present to our emergency department in active labor.  Her obstetrician was not on our medical staff and the on-call obstetrician was contacted to come in.  In the course of the phone call between the ED physician and the on-call obstetrician, the obstetrician realized that she knew this patient, and she informed the ED physician that she had treated her in the past but had terminated that physician-patient relationship the previous year because the patient had been noncompliant in connection with her previous pregnancy and related complications.  The on-call physician didn’t want to come in to treat the patient because she had gone through a formal process of sending the patient a letter, with the required advance notice, and didn’t want to reestablish that relationship.  Does the on-call physician really have to see a patient in this situation?  It seems unfair.

ANSWER:           Unfortunately, yes.  While it’s not a popular answer and it does seem unfair from the perspective of the obstetrician in your situation who likely did everything required of her to formally terminate that physician-patient relationship – a process that usually requires written notification with at least 30 days’ advance notice (and sometimes longer in the case of a pregnant patient) – the Emergency Medical Treatment and Active Labor Act (“EMTALA”) requirements trump the fact that the obstetrician terminated the physician-patient relationship.  In this case, the obstetrician is responding to the ED as the on-call physician, and she has to respond.

In the absence of a statute like that in effect in Virginia, which specifically provides that a physician-patient relationship created by a response to the ED by an on-call physician is “deemed terminated” upon the discharge of the patient from the ED or, if the patient is admitted, upon the patient’s discharge from the hospital and the completion of any follow-up care prescribed by the on-call physician, the obstetrician will likely have to go through the advance notice and termination process again.

The situation would be different if this patient presented to the ED and told the ED that the obstetrician was her treating physician.  In that case, when the ED contacted the obstetrician to inform her that one of her patients was in the ED, the obstetrician would have been able to inform the ED that she had terminated the physician-patient relationship, and the ED would then have resorted to contacting the on-call obstetrician.

March 2, 2017

QUESTION:        I’m the orthopedic surgeon on call at Hospital Big.  Our ED just got a call from the ED at Hospital Small.  Their orthopedic surgeon isn’t on call tonight, and they have an ED patient with an emergency medical condition they can’t stabilize.  They want to transfer the patient here so that I can treat and stabilize the patient.  The truth?  I’m tired of Hospital Small treating me like their on-call orthopod.  They should have theirs on call more often, and not just send me their ED patients who are uninsured.  I’m going to tell them not to ship the patient.  Any problem with that?

ANSWER:             The main problem is that this is likely going to be an EMTALA violation for Hospital Big.

A receiving hospital has the right to refuse an EMTALA transfer request if the proposed transfer is “lateral.”  A lateral transfer occurs when the same emergency medical condition (“EMC”) stabilizing services are provided and available at both the sending hospital and the proposed receiving hospital.  Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

The exception to this rule is where the sending hospital cannot stabilize the patient’s EMC and the receiving hospital has “specialized capabilities,” compared to the sending facility that can, here, the on-call orthopod.  The receiving hospital also has to have the capacity (available OR and staff) to stabilize the patient’s EMC.  In that situation, the receiving hospital has to accept the patient; it cannot refuse the proposed transfer.

Common areas in which “specialized capabilities” have been found by CMS include orthopedic surgery, neurosurgery, OB and mental health care (particularly inpatient mental health care).  These are only common examples; conceivably, any services provided at the proposed receiving hospital that are not available at the sending hospital are “specialized capabilities.”

We’ve been involved in specific investigations and enforcement efforts where CMS has responded to complaints by strictly holding the receiving hospital accountable.  Here, that would be Hospital Big.  By EMTALA, a hospital cannot delegate to an on-call specialist the authority to decline a transfer.  To address this, many hospitals have instituted an approach where the ED physician makes the decision to accept or decline a proposed transfer.

It is best for the ED physician (as the “acceptance decision-maker”) to discuss the proposed transfer with the on-call specialist, as the specialist may have legitimate reasons for why the transfer should not be accepted.  But it is the ED physician (or other hospital-designated individual) who makes that final decision.

This can no doubt create some unfair situations for Hospital Big’s on-call orthopedic surgeon.  And it might be best for the right management person at Hospital Big to reach out to her counterpart at Hospital Small, to try and address what appear to be transfers by which Hospital Small is taking advantage of Hospital Big’s on-call specialist(s) (at least from Hospital Big’s point of view).

But the key is, CMS has been enforcing the specialized capabilities transfer rule this way for over 15 years, and we still encounter the question asked above at hospitals and by medical staff physicians.  EMTALA’s penalties are the potential termination of the hospital’s Medicare provider agreement and fines of up to $50,000 per EMTALA violation.  That would be the most painful outcome for any kind of wrong EMTALA patient transfer decision.