May 30, 2019

QUESTION:        We have some advanced practice nurses and physician’s assistants who are lobbying to become members of the Medical Staff.  Some physicians support the idea, but others aren’t so sure.  What are you seeing out there?

ANSWER:             In our experience, most Medical Staffs are composed of physicians, dentists, oral surgeons and, increasingly, podiatrists.  In some states, it is required that others be appointed to the staff, such as psychologists in Ohio.  State laws still vary. For example, in Pennsylvania, a hospital wanting to include podiatrists must seek an exception from the Department of Health, but it is readily granted.

As CMS has amended the Conditions of Participation and Interpretive Guidelines in recent years, the door has been opened:

§482.22(a) Standard: Eligibility and Process for Appointment to 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 other categories of physicians (as listed at §482.12(c)(1)) and non-physician practitioners who are determined to be eligible for appointment by the governing body.


Interpretive Guidelines §482.22(a) The hospital’s governing body has the responsibility, consistent with State law, including scope-of-practice laws, to determine which types/categories of physicians and, if it so chooses, non-physician practitioners or other licensed healthcare professionals (collectively referred to in this guidance as “practitioners”) may be privileged to provide care to hospital patients.  All practitioners who require privileges in order to furnish care to hospital patients must be evaluated under the hospital’s medical staff privileging system before the hospital’s governing body may grant them privileges.  All practitioners granted medical staff privileges must function under the bylaws, regulations and rules of the hospital’s medical staff.  The privileges granted to an individual practitioner must be consistent with State scope-of-practice laws.

CMS provided the following statement in 2014:

For Information Only – Not Required/Not to be Cited

CMS expects that all practitioners granted privileges are also appointed as members of the medical staff.  However, if State law limits the composition of the hospital’s medical staff to certain categories of practitioners, e.g., only physician practitioners, there is nothing in the CoPs that prohibits hospitals and their medical staffs from establishing certain practice privileges for those specific categories of non-physician practitioners excluded from medical staff membership under State law, or from granting those privileges to individual practitioners in those categories, as long as such privileges are recommended by the medical staff, approved by the governing body, and in accordance with State law.  (79 FR 27114-27115, May 12, 2014)

Today, it is becoming more common for a category to be added to the Bylaws for Advanced Practice Clinicians, and APCs may serve on committees with vote.

Join Barbara Blackmond and Josh Hodges for the next Grand Rounds audio conference on June 4, “Q&A on Advanced Practice Clinicians,” where they will discuss practical issues, including credentialing, privileging, peer review, collaborative practice in states allowing independent practice for some APCs, the role in emergency call, hearing rights and emerging issues, such as the role of APCs in admission, discharge, and  consults.


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.