On Call: An Option or an Obligation?
By Peter Keohane, JD, MPH, CPC
With the rise in demand for emergency services (even while EDs are closing), hospitals are scrambling to ensure an adequate panel of on-call physicians to handle the wide array of medical emergencies. Being on call at a hospital, though, is often not a favorite activity for physicians, particularly when it involves overnight coverage. Consequently, many physicians are refusing to accept on-call duties, or severely limiting their obligations to the hospital (“I won’t work weekends.”). At the same time, hospitals are finding themselves under increasing federal scrutiny to ensure a full panel of specialists available for the ED. This is primarily due to a federal statute called the Emergency Medical Treatment and Active Labor Act, or EMTALA. Among other things, this law requires that a hospital with an ED provide an appropriate medical screening examination and “stabilization” to any individual who comes to the ED seeking treatment for a medical condition. To satisfy this obligation, a hospital is required to maintain a list of physicians on its medical staff who are on call for duty after the initial examination of the patient to provide further evaluation or stabilizing treatment. Hospitals often put on-call obligations in their medical staff bylaws, meaning any physician who is a member of the medical staff must take some on-call coverage; some even (reluctantly) offer compensation to providers who take on-call responsibilities.
As a result, physicians should understand what it means to be “on call,” at least insofar as their duties and limitations under the EMTALA statute. To help provide some guidance, CMS published a set of guidelines; below are some specific points CMS covered in those guidelines.
What is Permitted Under EMTALA/CMS Guidelines Utilizing Non-Physician Practitioners
According to CMS, an on-call physician may, at his or her discretion, direct a nonphysician practitioner to present to the ED to see the patient in place of the physician. Of course, the physician is ultimately responsible for the patient’s care, so depending on the complexity of the case, the physician may prefer to see the patient himself or herself.
Simultaneous Call – Physicians are allowed to be on call at multiple hospitals if necessary, although if this is the case, the hospitals should have protocols in case the physician is attending a patient at one hospital and is needed at another.
Surgeries While On Call – Similarly, physicians may schedule surgeries during on-call times if the hospital agrees. Again, as with simultaneous call, the hospital should have a “back-up” plan in the event the physician is in surgery.
What is Not Permitted Under EMTALA/CMS Guidelines ED Physician/Specialist Disagreements
If the emergency room physician and specialist disagree as to the need for the specialist to come to the ED, CMS states that the provider who physically examined the patient has deference –(meaning, in this case, the emergency room physician’s opinion takes priority). Thus, if the ED physician wants the on-call physician present, he or she cannot ignore the ED physician or will risk violating the law.
Listing Physician Groups on the On-Call List – CMS states that the law specifically requires individual practitioners be listed on the on-call panel, not medical groups.
Seeing ED Patients in a Physician’s Office – According to the CMS guidance, having the patient come to the physician’s office for evaluation is generally not acceptable, unless the office is located on the hospital’s campus. Consequently, if the physician is in the office during on-call hours, he or she may have to cut those hours short should a patient need evaluation at the ED.
Seeing Established Patients Selectively – In the CMS guidance, the pattern of a physician seeing ED patients who already have an established relationship with the doctor (and excluding others) would violate the EMTALA rules. Though this seems pretty clear-cut, physicians may prefer to see “their own” patients because they know the patient’s history, it is more likely those patients have insurance coverage, or they simply have an established relationship with the patient. While these may be legitimate reasons for seeing certain patients in the ED, the law is pretty clear that this type of discrimination is not permitted.
Patient Evaluation Via Telephone/Telemedicine – CMS suggests this is permitted only when there is a legitimate reason for the physician to not go to the ED. For example, if the hospital is in a rural area where there is a shortage of a particular specialty, an on-call physician may review the patient’s condition remotely. Otherwise the physician must travel to the ED.
If physicians decide to accept on-call duties, they should be fully mindful of what is expected of them while on call, both in terms of federal law, as well as the hospital’s protocols for ED coverage. In addition, the physician should check with his or her malpractice carrier to see if EMTALA penalties are covered under the physician’s professional liability insurance policy (oftentimes it is not).
Why Fewer Physicians Take Call
Though the reasons may be very personal, principally physicians are refusing to take call for one (or more) of the following four reasons:
1) Income and reimbursement – Inadequate or no reimbursement for unassigned patients is a major incentive for not taking call. According to a California Medical Association study, nearly eight in 10 physicians have trouble obtaining payment for on-call services. In addition, reimbursement rates are so low that efforts to collect are not worth the time and administrative expense.
2) Supply and demand – The majority of physician practices are located in suburban neighborhoods, resulting in a shortage of physicians in rural and lower income areas. This causes on-call coverage in these areas to be much more difficult to obtain or possibly non-existent. Moreover, many specialists are electing to avoid on-call altogether by simply refusing to serve on the on-call panel at the local hospital.
3) Practice and lifestyle – Many physicians simply do not want the burden of accepting on-call coverage. Like many in the workforce, working late hours, weekends, nights, etc. takes a toll on their personal lives (“I never see my kids anymore.”).
4) Legal concerns – Finally, some physicians fear the potential liabilities of treating patients while on call. The federal obligations under EMTALA, potential malpractice risk due to treating “unknown” patients, and accusations of patient dumping are all legitimate concerns any physician accepts when taking on-call duties.
EMTALA Focuses on Physicians, Too
Although the EMTALA penalties focus primarily on the hospital (including civil monetary penalties, suspension or expulsion from the Medicare program, etc.), these same penalties could apply to physicians, who, for example, refuse to appear to treat a patient within a reasonable period of time. As a result, any physician specialists who have privileges at hospitals with an ED and must take some oncall time should be aware of what is (and is not) expected of them. Does this happen? It certainly does. In New York, an OB/GYN agreed to pay $45,000, and attend and complete training on the requirements of (and the physician obligations under) EMTALA. The physician allegedly failed to come to the hospital to examine and treat a 19-year-old uninsured pregnant patient in active labor, even after asked by the ED physician. In addition, he refused to admit the patient and requested that the patient’s boyfriend drive her to another hospital rather than arrange for an appropriate transfer.
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