January 7, 2016

QUESTION:        Our hospital is interested in using an electronic application that allows individuals to schedule a time to come to our Emergency Department by picking a time slot through our website. Is that going to get us in trouble under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:            It’s a good question. The CMS EMTALA Central Office says that simply using such an electronic application is not in and of itself an EMTALA violation. The key point is how patients are treated when they arrive at the ED.

Per the Central Office, the use is not an EMTALA violation because the potential for an EMTALA violation is interpreted as beginning when the patient presents to the ED or is on the hospital’s property. Once a person arrives at the ED or is on the hospital’s property, EMTALA obligations begin equally for everyone, regardless of any prior contact or communication made. So long as the hospital maintains the obligation to perform an appropriate medical screening examination and stabilizing treatment to everyone equally once a person presents for ED care, any other arrangement is irrelevant to EMTALA compliance.

This means that how the electronic application is used is a key to EMTALA compliance. If it’s used so potential patients can see how crowded the ED might be at any given time and plan an arrival time, and if patients are then triaged and screened according to standard procedure, there should not be an EMTALA problem. If, however, the application is used to allow a patient to move to the front of the line when he or she arrives at the ED or on hospital property regardless of what the hospital’s triage and screening processes say, then there would be an EMTALA concern, and so the potential for a violation.

The bottom line, all must be treated equally when they arrive at the ED.

May 28, 2015

QUESTION:        We have a very small neurosurgery department at our hospital, where the active members of the medical staff are obligated to provide ED call. Assuming that we only have two neurosurgeons that are able to cover ED call, does this mean they must each take 180 days of call each year? 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, the best rule of thumb comes from historical guidance from CMS that CMS now specifically denounces!

To begin, it is important to keep in mind that CMS does not require 24/7/365 coverage. Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s coverage arrangements. Frankly, this is not a very helpful rule, so many organizations that we work with take a “rule of three” approach, as it relates to provider on-call responsibilities. This approach 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 single physician specialty, call would need to be provided only one-third of the time (i.e., 10 days/month). This would mean the hospital above would have neurosurgery coverage for 20 days out of the month.

While CMS has explicitly denied the rule of three ever existed, we think this is a relatively safe position to take in terms of EMTALA compliance. Of course, we have seen other facilities adopt a “rule of four” or even a “rule of five” where they have found the obligation created under the “rule of three” to be too burdensome or if there are other “relevant factors” that would justify another approach (e.g., the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc.).

February 19, 2015

QUESTION:    Our pediatricians have asked that their Nurse Practitioners be permitted to be listed on the on-call list of the Hospital in lieu of their collaborating physician. Is this permissible under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:    No. Nurse Practitioners (or other nonphysician practitioners) cannot be listed on the Emergency Department on-call coverage list. EMTALA requires hospitals to “maintain a list of ‘physicians’ who are on call for duty, after the initial Emergency Department examination, to provide treatment necessary to stabilize an individual with an emergency medical condition.” 42 U.S.C.A. §1395cc(a)(1)(I).

EMTALA specifically requires the physicians on a hospital’s medical staff to be individually listed to provide on-call services necessary to stabilize a patient.

Nurse Practitioners may not independently participate in the emergency on-call roster (formally or informally by agreement with their collaborating physicians) in lieu of the collaborating physician. The collaborating physicians (or their covering physician) must be listed for on-call coverage and must personally respond to all calls in a timely manner, in accordance with requirements set forth in the Bylaws and EMTALA On-Call Policy. Following discussion with the Emergency Department, the collaborating physician may direct a nurse practitioner to see the patient, gather data, and order tests for further review by the collaborating physician. However, the collaborating physician must still personally see the patient when requested by the Emergency Department physician.

A Nurse Practitioner (and other APRNs and Physician Assistants) may be used to assist the on-call physician in responding to call. Any decision to use any of these nonphysician practitioners to respond initially to the Emergency Department should be made by the on-call physician in conjunction with the Emergency Department physician.

If the on-call physician and the Emergency Department physician do not agree, the Emergency Department physician is the final decision-maker. (If the Emergency Department physician disagrees with the on-call physician’s decision to send a Nurse Practitioner or other nonphysician practitioner, the Emergency Department physician is to request the on-call physician to come in.) This decision must be based on the patient’s medical needs and the capabilities of the hospital, and must be consistent with hospital policies and/or protocols.

Nonphysician practitioners – qualified medical personnel (“QMP”) under EMTALA – can perform the medical screening examination under EMTALA. This also means that the QMP has been granted the clinical privileges necessary to perform the medical screening examination, and that the privileges come within the applicable state licensing regulations for that QMP category. The EMTALA requirement in this situation is that the hospital’s governing Board has approved, in writing, the category of nonphysician practitioners who will be performing the medical screening examination.

Join Charlotte Jefferies and Dan Mulholland in warm, sunny Orlando on March 19-20 for a workshop on Advanced Practice Clinicians!