On-call physician issue frequent EMTALA query
Enforcement varies, expert says
One of the top three questions he gets from health care providers, says web site publisher (www.medlaw.com) and risk management specialist Stephen Frew, JD, is also one of the most controversial:
"The on-call physician did not come in and wants the patient sent to the office tomorrow, but then won't see the patient without cash or insurance. Does this violate EMTALA [Emergency Medical Treatment and Labor Act]?"
The reason the question is tricky, he adds, is that enforcement by the Centers for Medicare & Medicaid Services (CMS) varies from region to region and from state to state. In one region, he says, the answer will be different depending on the EMTALA enforcement person who is being asked.
"As always, my approach is to watch what the regional office does — not what they say," says Frew, who advises providers to watch for patterns to determine what is likely to happen.
He describes a scenario in which a patient with a fracture comes to the ED, and staff there contact the on-call physician, who tells them to splint the broken bone and send the person to the physician's office the next day. When the patient arrives, it is determined that he or she is uninsured, and the on-call physician refuses treatment.
"The first question is whether this is EMTALA-[related] at all," Frew says, "and the answer is that most CMS investigators would consider it [to be] — at least until they complete the investigation."
That means a complete review of the incident, similar cases, and a broad range of other EMTALA issues, he says. "Just getting a visit makes it much more likely that the feds will find 'something' or multiple 'somethings' to cite you on. Visits are not good things."
The next question to look at is whether or not the on-call physician was asked to come in to see the patient, Frew says. "If the physician was asked to come in but refused and requested that the patient be sent to the office the next day, there is an 'on-call violation' in most instances, which means there is also a potential hospital violation.
"If the ED physician caved in and agreed to send the patient to the office after asking the on-call to come in, then we have a probable ED physician violation for an improper transfer and on-call violation."
Another issue is whether splinting constitutes "stabilization," he points out. "Some EDs cast simple fractures, while others tend to splint and send the patient to the [orthopedic surgeon] later for casting. CMS has cited both practices," Frew says.
Several points come into play here, he says, including the following:
- If the issue of further evaluation is involved, CMS almost always considers that the patient requires this evaluation in the ED setting.
- Sending a patient for prompt or immediate specialist review implies that the risks to the patient have not been resolved.
- Splinting, because it is considered an interim measure, it often viewed as incomplete treatment by CMS and not sufficient to be considered "stabilization."
Discharging for outpatient care
CMS rules talk vaguely about it being permissible to discharge from the ED for outpatient care in appropriate circumstances, but do not give "safe harbor" guidelines, Frew says. The agency is more likely to accept this approach in the following instances, he suggests:
- Necessary testing has been done to confirm that the injury is of a limited and minor nature.
- Casting has been performed in the ED or is documented as inadvisable.
- The specialist has agreed to see or manage the patient.
- Specialty care is not needed on an expedited basis.
- Good documentation shows elements of medical screening examination, stabilization, and plan of care.
When anything does go wrong, it is virtually certain that the hospital will get cited, Frew advises. "In 90% of the cases like our scenario, the ED physician gets faulted for the violation, as well as for inadequate evaluation, improper discharge, failure to call in the on-call [physician] or sending to the office."
While there is no "one-solution-fits-all" answer to avoiding problems, he says, the following approaches have been found to generate the fewest citations:
- Testing, evaluation, and casting of minor fractures is done in the ED.
- More involved fractures require the specialist to examine the patient in the ED.
- Definitive care of complex fractures, pain management, and tendon repairs are done before discharge.
- Specialists who are asked to come in are not allowed to substitute their office as the treatment site.
- Medical staff rules that require and enforce ED follow-up visits without regard to means or ability to pay.
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