On-call Consultants Present EMTALA Risks for the ED
By Staci Bonner
Even for those who are well-versed in EMTALA (the Emergency Medical Treatment and Active Labor Act, also known as the COBRA anti-dumping law) are challenged by the ramifications concerning on-call consultants. This is a key area being investigated by the Health Care Financing Administration (HCFA), according to Steven A. Frew, JD, a Rockford, IL-based health care attorney and consultant.The temporary closure of two New Jersey EDs for EMTALA violations regarding on-call consultants brought the issue to the attention of many ED managers. (See related story, page 92.)
EMTALA responsibilities were extended to on-call physicians when the federal law was amended in 1989, but violations in this area are on the rise. "On-call issues and refusal of consultants to respond is the number two source of citations in the country, after triaging patients out based on managed-care requirements," Frew notes.
"There have been 80 investigations of EDs in California by HCFA field investigators within the last 12 months, and many of these were based on alleged violations involving ED backup panel specialists, not the ED physician," reports Wesley Fields, MD, FACEP, medical director of emergency services at Saddleback Memorial Medical Center in Laguna Hills, CA.
If a consultant does not respond in a timely fashion when summoned to the ED, either to help decide whether an emergency condition exists or to help stabilize a patient diagnosed with a medical emergency, the hospital and the on-call physician are both at risk for a violation, which carries a potential fine of up to $50,000 per provider, per patient, and the potential loss of Medicare participation. (For more information on EMTALA regulations, see article on page 94.)
ED physicians should be proactive in educating the medical staff, urges Larry Bedard, MD, FACEP, director of emergency services at Doctors Medical Center in San Pablo, CA, and immediate past president of the American College of Emergency Physicians (ACEP). "Emergency physicians need to take a leadership role as integrators between the hospital and the medical staff and also be advocates for patients in the community," he says. "The medical staff need to be educated, because a lot of them don't have the vaguest idea about their responsibilities under EMTALA."
ED physicians are at risk
Emergency physicians have lost their jobs and had their privileges curtailed over EMTALA issues regarding consultants, notes Robert Bitterman, MD, JD, director of risk management and managed care in the department of emergency medicine at Carolinas Medical Center in Charlotte, NC.
In Detroit, problems arose when an on-call physician refused to come to the ED to evaluate a patient. "The ED physician treated the patient as best he could and made arrangements for the patient to be seen the following day by his physician," says Bitterman. "The patient had an okay outcome, but wasn't admitted. Later, he sued, claiming he was denied admission because he had AIDS, and the patient's lawyer notified HCFA."
When the hospital was cited for an EMTALA violation, administrators fired the ED physician, but did nothing to censure the on-call physician. "Ostensibly, this was because the hospital views the on-call physicians as revenue generators because they bring patients to the hospital from their private practice, and there is the erroneous perception that ED physicians aren't (generating revenue)," says Bitterman.
Emergency physicians should explain to consultants that they are also liable for EMTALA violations. "If a physician's name is on the [call] list, under certain circumstances he is duty bound under federal law to come in to the ED," says Bedard. "On-call physicians have a moral, ethical, and legal obligation to be available on a timely basis. Remind them that they fall under EMTALA and can't pick and choose their patients."
Taking call can be risky
As physicians realize the extent of their responsibilities under EMTALA, many are less willing to volunteer to be on call for the ED. "There is a growing awareness on the part of on-call physicians about their duties and burdens under the law, which makes them reluctant to take call," Bitterman says.
When two patients were brought to an ED in South Williamson, KY, complaining of abdominal pain after an auto accident, both the ED physician and the on-call surgeon suspected they had intrabdominal bleeding. The surgeon refused to operate and transferred the unstable patients elsewhere-a violation of EMTALA. "The OIG has fined him $50,000 out of pocket for each patient he has transferred," says Bitterman.
Because of these risks, on-call physicians are asking hospitals to pay them for taking call, notes Bitterman. "They ask hospitals to pay their malpractice expense and a fixed hourly sum, or pay them at Medicare or Blue Cross rates for every patient they accept from the hospital ED," he says.
EMTALA regulations that force larger tertiary care facilities to accept transfer patients from other facilities put pressure on consultants, says Bitterman. "Referral hospitals are becoming the dumping ground for all area hospitals that don't have particular services, and the perception is that smaller hospitals are cherry picking, taking the ones that have money and transferring the ones that don't," he explains. "The on-call physician at the tertiary facility bears the burden in this scenario."
On-call physicians have valid financial reasons for being resistant, says Fields. "Specialists on the medical staffs of hospitals that serve large numbers of medically indigent patients are understandably worried about taking ED call," he explains. "If you can't get paid for the majority of the services you provide, it doesn't make sense to take ED call on a voluntary basis. You're going to go broke that way."
Taking call can be very disruptive to a physician's private practice, says Bitterman. "It's not very appealing for on-call specialists to leave their office for four hours to take care of an ED patient who is belligerent, drunk, and not going to pay you," he says.
The trend toward reluctant consultants puts additional pressure on ED physicians. "There has been a fundamental change in the physicians' willingness to take call," says Bedard. "That adds a tremendous amount of anxiety and risk to what we as emergency physicians do, because in some cases we are not providing patients with the service they deserve."
At the same time, hospital administrators are pressuring more physicians to accept the responsibility of taking call. "According to HCFA regulations, just because physicians weren't taking call before doesn't mean they shouldn't be now," notes Bitterman. such as opthalmologists and psychiatrists, who normally have had consulting practices, now are legally required to take the ED call."
Administrators need to find ways to encourage consultants to take on the responsibility, says Fields. "You need to find some rational approach to funding emergency services, which might mean a subsidy from the hospital," he says. "You've got to be able to reimburse backup specialists. Otherwise, they have no economic incentive to participate."
Consultants demanding higher compensation
EDs in many regions are having problems with consultant availability. "In California, the problem of availability of backup services is reaching crisis proportions in several hospitals," says Bedard. Neurosurgeons, plastic surgeons, orthopedists, and other specialists are in short supply, he reports.
Previously, backup was considered part of a physician's general duty and responsibility to the hospital, Bedard notes. "Now, physicians are demanding to be paid not only for seeing patients, but also for standby time," he says.
Payment for standby time is becoming akin to highway robbery, says Bedard. "In our area, neurosurgeons are receiving up to $2000 per day for standby, even though they only get called twice a month on average, and the average reimbursement for cases they see is $22,000," he reports. "And once you start paying the neurosurgeons, who are on the high end of physician compensation, how can you justify not paying internists or orthopedists?"
Consultants who are on standby for more than one facility are demanding multiple fees, Bedard notes. "At my hospital, we only have two neurosurgeons, and HCFA says if we can't provide the backup ourselves, we need to have a transfer agreement with a facility that will," he says. "We wanted to transfer our patients to a trauma center that pays neurosurgeons $2000 a day for being on call on a guaranteed fee-for-service basis. But the consultants wanted an additional $500 a day for being on standby for our hospital. It's almost like extortion."
More disturbing is the trend of consultants using federal laws to hold out for higher compensation, says Bedard. "EMTALA is fairly specific in that it requires the hospital, not the medical staff, to provide backup. Physicians have figured out that under EMTALA, it's the hospital's responsibility, not the physician's, to make sure all ancillary services are available, and they are using that as a negotiating wedge," he notes.
Conflict between physicians
Unfortunately, the frustration consultants feel at taking call is often vented onto ED physicians, says Bitterman. "On-call physicians are reluctant to come into the hospital or admit patients, so they may make it difficult for the ED physician," he explains.
Consultants may try to convince the ED physician to transfer or discharge unstable patients "They will say, `It's not something we need to admit, why don't you go ahead and send them home,'" says Bitterman. "Or, if the patients have the wrong insurance, the consultant will say, `Why not transfer them to the managed care hospital?' even though the requirements of the law bind that hospital and that physician regardless of insurance."
Conflicts often arise between caregivers as to whether a patient is stable. "There are often confrontational issues between ED and on-call physicians about which patients have emergencies and which can be transferred," says Bitterman.
Often, the on-call physician may insist the patient is stable for transfer to a managed care hospital, but the emergency physician doesn't agree, Bitterman explains. "Then, you have an argument between two members of the medical staff. On top of that, the hospital may not want the patient admitted because they're not going to get paid if it's a managed care patient," he says.
As a result, the ED physician is put in a difficult position. "There is great pressure brought to bear on the emergency physician to say that the patient is stable, and take the risk of transporting the patient," Bitterman says. "That puts the ED physician right in the middle-he either keeps the patient he believes is unstable in the department and insists the consultant come in, or transfers the patient elsewhere. So you're either risking the patient's health or the wrath of the medical staff."
The alternative is seek out a higher authority. "You want to have a neutral third party to take action so you don't have to transfer the patient out," says Bitterman. "The ED physician must make a judgment call [about] what is best for the patient."
If the on-call physician refuses to come in, and the ED physician makes the decision to transfer an unstable patient, it's the ED physician who is liable, stresses Bitterman. "If the on-call physician can browbeat and convince the ED physician to transfer a patient inappropriately against their better judgment, then the ED physician bears all the liability," he explains. "The only way to protect yourself and the patient is to say, `I'm sorry, I disagree, please come in and evaluate the patient yourself.'"
In such a confrontational scenario, the consultant is likely to vent anger on the ED physician, says Bitterman. "If you force an unwilling consultant to come in enough times, you will have trouble with the medical staff, who may complain to administrators about your ED group," he warns. "Still, there are times when it's necessary."
On the other hand, if the on-call physician refuses to come in, the ED physician is required by law to transfer the patient. "If you tell the consultant they're violating the law and you must transfer the patient as a result, the on-call physician is liable for the violation," Bitterman notes.
Physicians need to make a special effort to cooperate to avoid problems with EMTALA, says Frew. "This puts a premium on cooperation between the ED and on-call," he emphasizes. "That means no calling needlessly by the ED, in return for a prompt response from on-call. [This is] absolutely critical for having the least problems possible."
Problems with on-call physicians need to be documented, and action needs to be taken, says Frew. "The ED physician needs to carefully document when they call and the responses they get," he says. "The hospital needs an effective monitoring system in place so when there is an issue, it's addressed promptly rather than accumulating over years."
Policy takes heat off ED physician
Having a written hospital policy to facilitate consultant coverage is key, Bedard says. "ED physicians should make sure the hospital bylaws require that each specialty provide designated backup," he advises.
Some hospital policies exclude physicians over a certain age, or individuals who have practiced for a specified number of years. "That can be difficult, since as the medical staff gets older, you may not have that many doctors under 55," says Bedard.
Written policies should include steps to take in case of conflict. "If there is a disagreement on the disposition of the patient over the telephone, it should be incumbent on that on-call physician to come in and physically examine the patient," says Bitterman. "If it goes beyond that, the ED physician should know the next person he calls is the chairman; failing that, the chief of medical staff, and failing that, a designated administrator."
The system will protect both ED physicians and patients, Bitterman says. "You don't want to transfer unstable patients, and written hospital policy ensures you and the consultant are both acting from the same database," he says. "If the consultant comes in, actually evaluates the patient, and then still insists on discharging the patient, at that point the patient can decide who to believe."
On-call physicians should be made aware of the legal ramifications of their refusal to come to the ED, says Bitterman. "If the ED physician has to transfer an unstable patient to another hospital to receive care, the hospital must, by law, send the name and address of that on-call physician with the patient to the accepting hospital," he explains. "Then, by law, the receiving hospital who received the unstable transfer must report that hospital and physician to the federal government."
Hospital administrators, ED physicians, and medical staff leadership need to address the issue of consultant coverage as a unit, Bitterman recommends. "It's very important to involve all three parties," he says. "The first step is to recognize what the law requires concerning on-call coverage to the ED and understand the huge penalties for failure to heed the law."
The time to formulate a policy is before an unpleasant confrontation occurs, Bitterman advises. "In the cool of day, openly and objectively assess the situation of how the hospital will provide services to the ED," he says. "It should be a collaborative effort, with input from physicians taking call and administrators, to set up systems that work."
The medical staff need to acknowledge the responsibilities of their on-call role, says Bitterman. "Physicians should understand that, when on-call, they represent the hospital, not their own private practice, and in that capacity they cannot accept or reject patients for any reason they so desire, as they can in their own private practice," he notes.
ED physicians should be leaders in this process, but they require buy-in from administrators, he says. "They can be educators, but you won't have a system that works smoothly, and you certainly won't have good relations with the medical staff, until the hospital administrative leadership is firmly committed to providing these services appropriately," says Bitterman.
The medical staff also needs to fully participate in finding solutions to providing call services. "That may mean some financial renumeration," says Bitterman. "They need to be part of the process because, if they don't buy into the solution, it will be problematic."
Hospital administrators need to discipline consultants who fail to respond in a timely fashion, Frew stresses. "Quality assurance means more than finding the problems. It also means fixing them, even if that means disciplining a physician," he says.
Disciplinary action can range from counseling to termination of privileges, but something progressive needs to occur, Frew warns. "That typically doesn't happen in these circumstances. Across the country, failure to respond tends to result in repeated warnings that go unheeded," he says. "When investigators find that, they consider that your system isn't working." n
New Jersey EDs Closed Because of On-call Consultant Response Times
Although your ED may be in compliance with federal requirements, state regulations may be more stringent. Two EDs in Millville and Bridgeton, New Jersey, both part of the South Jersey Hospital System, were recently shut down after an investigation conducted by the Health Care Financing Administration (HCFA) triggered by on-call consultant issues. "HCFA follows state law as a term of your Medicare participation, so if you don't meet state law, you don't meet federal law," emphasizes Steven A. Frew, a Rockford, IL-based health care attorney and consultant.
Problems started after an internal disciplinary action against consultants to the ED was voted on by the hospital medical executive committee, and a report was filed with the state board of medical examiners. The state department of health, operating as the local HCFA representative, started an investigation and identified problems with consultant response times.
New Jersey state requirements for on-call consultants specify that consultants must respond to the ED within 30 minutes. "Because they put in parameters that consultants must respond in that time frame, then at 31 minutes you're in trouble," says Russell Harris, MD, FACEP, chair of the ED at Our Lady of Lourdes Hospital in Camden, NJ, and president elect of the New Jersey chapter of ACEP. "It's been in the regulations for several years but no one really paid a lot of attention-until now."
Many hospitals are revising their guidelines for consultant response times in light of the state regulations, says Harris. "Before, if it took a consultant 45 minutes to respond because of a traffic jam at the end of the day, things would come out just fine anyway, but this made everyone start to take notice of that existing regulation," he explains.
As a result of the findings, the EDs were temporarily closed during a weekend in December, and reopened the following Monday. Although the EDs remained fully staffed, all walk-in patients were stabilized and then transferred to other facilities, and local ambulances were stationed at the hospital to bring patients to other facilities. "The EMS community mobilized all of its personnel and equipment to make sure patients were put at the least risk possible," notes Frew.
Despite those efforts, patient care was affected. "The EDs opened two hours after the death of a young man with a heart condition who many people thought would not have died had he not been transferred 35 miles to another hospital, which is exactly what the EMS community had feared might happen," says Frew. The patient had a heart attack just a few minutes from one of the EDs that was closed, developed a new problem while being transferred to another ED, and died of those complications, he explains.
When the HCFA investigators ascertained there was no immediate threat to patient safety, the EDs were reopened, but the unprecedented action had broad ramifications for the hospitals. "Anyone who has reviewed the situation knows that quality patient care has always been rendered, and there was never an issue of less than standard medical care being delivered," says Robert Dinwoodie, DO, FACOEP, chairman of both the EDs. "Had they investigated further before closing the EDs, they would have found that the issues had already been dealt with appropriately."
ED managers were alarmed by reports of the closings. "This is absolutely frightening-this whole issue is a lightning rod, " stresses Harris. "ED directors are watching this very closely, and we are all very alarmed and on edge."
At issue were the ED's internal quality assurance minutes, which identified problems with on-call consultant response times. "The investigators read the minutes, but didn't take into consideration the solutions that were implemented," maintains Harris.
The problem has broad implications for quality assurance in the ED, says Harris. "As part of any ED's internal QA, cases are reviewed and discussed at monthly meetings, and you come up with an action plan to make things better," he explains. "The purpose of quality assurance is really to source problems and make them better, which was exactly what was done at the EDs that were closed."
Investigators failed to consider the steps taken to resolve the ED's consultant issues internally, says Harris. "The ED had documented problems and had programs in place to make every single one of them better, but investigators picked out the specific cases that were problematic and ignored the resolution of those problems," he notes.
The investigation brought to light the possibility of internal minutes becoming public record. "We always lived with the sense that performance improvement and quality assurance minutes were not a matter of public record, but this process has taught us they clearly can be," says Harris.
The scenario will likely strike fear in the hearts of well-meaning ED managers who identify potential problem areas in writing, says Harris. "The disturbing thing is that if the ED had swept things under the carpet, this never would have happened," he adds. "The logical message from this is that it's a risky endeavor to document the problems you have."
As a result of the investigation, the ED's minutes were made available to the media. Each of the 11 cases targeted by investigators appeared in the local papers, with detailed descriptions except for patients' names. As a result, at least one medical malpractice lawsuit was initiated that would otherwise never have occurred, says Harris. "The newspapers reported the lawsuit before the doctors even knew about it," he notes.
The aftermath of the HCFA investigation created internal problems for the hospital. "Of course, the medical staff has started to blame the ED for what occurred, but it really wasn't their fault," says Harris.
Responding within 30 minutes can be difficult for medical staff members who are on call at multiple hospital locations, says Dinwoodie. "But, frequently when ED physicians initiate telephone contact with an attending physician, it's just to notify them and not to request urgent backup, so the 30-minute rule applies only in critical cases, which is a significant minority of overall ED volume," he notes.
The incident alerted ED managers to the broader implications of the federal regulations. "It shows to what extent the government agencies can go under the EMTALA umbrella," says Dinwoodie. "This was history in the making, in that never before has a community hospital's ED been closed for an EMTALA violation."
Having your ED closed is a public relations nightmare for any hospital. "When events like this are broadcast in the media, people naturally jump to the conclusion that substandard care is being delivered," says Dinwoodie.
Education is essential to avoid this unpleasant scenario, stresses Dinwoodie. "Institutions need to hold inservices with medical staff and make sure that hospital policies and medical staff bylaws are up to date and in accordance with EMTALA regulations. This absolutely could happen to any other hospital in the state," he notes.
The state department of health has invited the ED community to revise the existing state regulations, with the goal of avoiding unnecessary closings in the future. "That will take at least a year to be initiated, but at least the process has begun." says Harris.
A liaison between the emergency medical community and the department of health helped to promote dialogue. "To have this ability to interact and exchange information is a huge step, because now there is input from all concerned people,' says John Brennan, MD, FAAP, FACEP, chairman of the ED at Northwest Covenant Medical Center in Danville, NJ. "Having an open dialogue is the best way to avert problems before they occur."
One possibility is creating a task force to investigate problem areas before shutting an ED's doors. "That way, if the state feels there are significant QA issues, the task force would mobilize and investigate," says Brennan. "That is an instrument the state will hopefully use before closing an ED." n
Policy Must Protect ED Staff from On-call Consultant Violations
By Caral L. Edelberg, President/Chief Executive Officer, Medical Management Resources, Inc., Jacksonville, FL
EMTALA specifically mandates that hospitals provide on-call physicians to assist the emergency physician in determining, when requested, whether an emergency condition exists. They are further expected to assist the ED physician in stabilizing existing emergency conditions.
The mechanisms for assuring that this simple rule is followed have become a growing problem for emergency physicians as more medical staffs feel the economic squeeze and downsize their practices and uncompensated services. The result has been lengthier delays in responding to an ED call and increasing pressure applied on the emergency physician by on-call specialists to protect them from uncompensated care.
All specialties and subspecialties represented by the active medical staff must be included on the daily ED on-call list conspicuously posted in the department at all times. The on-call physician must respond in person in a timely fashion to examine the patient when requested to do so by the emergency physician. No specified consultant response time has been established in the HCFA/EMTALA guidelines although the hospital, medical staff, and ED must cooperate to provide on-call services to emergency patients.
Hospitals and their on-call physicians are subject to penalties if the on-call physician fails or refuses to appear to assess the patient within a reasonable period of time. To assure that this situation does not occur, the hospital must develop and monitor compliance with policies, procedures, and availability standards.
Hospitals should define response times with words such as "reasonable" or "appropriate" and avoid specific time frames such as "30 minutes" that can establish a standard that they may not be able to meet. (A 31-minute response time would be a violation and could result in sanctions if ever reviewed by HCFA.)
It is important that hospitals and medical staffs be educated to their on-call responsibilities by developing and implementing policies and procedures to assure compliance with regulations. For example, requests by on-call physicians to send patients to offices, other hospitals, or locations have resulted in citations and should not be considered as an alternative to personal examination by the on-call physician in the ED.
The hospital is responsible for properly supervising the specialist, and failure to do so places the emergency physician in jeopardy. This problem is exacerbated when the emergency physician agrees to write admission orders, and the specialist fails to come in to see the patient on a timely basis. If problems develop, the emergency physician will be held responsible. However, emergency physicians often give in to medical staff political pressure and continue to write admission orders in many parts of the country or do it a as simple courtesy without understanding the legal ramifications.
Staffing/employment contracts between emergency physicians, their group practices, and hospital should be anchored by medical staff bylaws addressing EMTALA policy. Emergency physicians should seek guarantees of indemnification from sanctions imposed as a result of the hospitals failure to establish and/or comply with policy or failure to discipline medical staff appropriately.
Hospitals must identify both Federal EMTALA policy and the individual state laws governing EMTALA issues. Although federal policy governs the outcome of an EMTALA investigation, states have proven they, too, have the power to act swiftly in addressing and penalizing violators. Once a difference in state and federal policy is identified, hospitals must manage differences through prioritization of issues to assure that they have addressed the issues involved in maintaining compliance with the most restrictive.
Use bylaws to establish practice standards
The medical staff bylaws must reflect each on-call physician's responsibilities under EMTALA if they are to be held accountable. Most medical staff members don't understand the rules because they have either never been properly inserviced or have learned informally by word-of-mouth. They often don't understand their personal liability and the terms of that liability for fines when they fail to comply.
Some specialists do fully understand their liability but refuse to accept it due to their perception that, when all is said and done, their status as major revenue producers for the hospital will offer some protection.
Many specialists are facing the era of declining revenues and simply don't have the resources to provide backup for potentially "free" care. This is particularly true for those solo practitioners who must make every patient count for revenue and who must cover more than one hospital. For those areas hardest hit with limited "on-call" resources, hospitals might consider stand-by fees for on-call specialists to assure that EMTALA compliance can be maintained while providing assistance to those medical staff members who need it.
Why the ED Is held accountable
The ED is the entry point into the system. As such, the emergency physician is perceived to have the ability and authority to manage the outcome. The hospital should accept its responsibility for providing support to the ED to get the job done within the obvious constraints all EDs operate under.
Many of the frustrations and problems with EMTALA result from the perception of the emergency physicians' role as the responsible party without the support necessary to also function as the ultimate authority.
We want to believe that the days of the ED existing solely for the convenience of the medical staff are gone. But are they? When controversies between the emergency physician and the medical staff surface, the "specialist" often gets the support of the hospital, as they are perceived by administration and other specialists as the "legitimate" revenue generators for the hospital. However, all it takes is a reminder to administration of inpatient revenue derived from a well-functioning, highly qualified ED to see that it contributes substantially to the bottom line.
The emergency physician does not stand alone in assuming the responsibility for making appropriate transfer decisions. All players in the system bear responsibility as all may be sanctioned when the system fails. The hospital credentials committee must assure that all credentialed medical staff understand the rules and are accountable.
This can be accomplished through the cooperation of the medical department heads to educate their staff members to support the emergency physician in adhering to EMTALA policies. Department chairmen should react quickly when contacted by the emergency physician in an emergency situation in order to assure that patient care comes before medical staff convenience or egos.
Indeed, when on-call physicians refuse to respond to the emergency physician's request, the department chairman should be contacted and asked to intervene. In addition, they should be expected to address violations through immediate disciplinary action. Nothing conveys the gravity of the situation to a department chairman like a 3:00 a.m. call at home.
Hospital administrators should be aware of their responsibility to represent the hospital to the community and, as such, assure that all medical staff members follow established protocols. The EMTALA rules were established to protect patient safety and rights. To do less exposes the hospital to sanctions as well as public scrutiny. The main issue is patient care, and the public relies on hospitals to provide the assurance that it is being delivered.
Emergency physicians can no longer be considered just a "convenience" for the medical staff. They are the watchdogs of the system and are expected to protect patient's rights and health as well as monitor compliance of medical staff and administration. When the emergency physician requests a personal evaluation by the specialists, immediate compliance is required.
When problems arise, HCFA expects to see quality assurance actions. Medical staff sanctions or disciplinary actions are required to avoid possible future HCFA hospital and provider sanctions for EMTALA violations. Education of members of the hospital medical staff is the initial step to awareness and compliance.
Many non-emergency physicians are unaware of the existence of EMTALA or may misinterpret its scope as just pertaining to the emergency physician and/or ED. EMTALA compliance is a condition of participation in the Medicare program. By accepting Medicare payment, hospitals with an ED voluntarily agree to abide by its rules. Hospitals that do not accept Medicare funds are exempt, as are sites that do not qualify as "hospitals" but in general, where there's an ED and a Medicare provider agreement; there's EMTALA.
Hospitals must provide assurance to the ED that each department chairman will support the emergency physician's decisions. This can only be accomplished through the active participation and agreement to established policy; recognition of failures to comply with policy; and appropriate disciplinary actions against those specialists who fail to act in accordance with established protocols.
Problems resulting from sanctions for EMTALA violations extend to other legal areas as well. It is not uncommon to find that medical malpractice and civil suits follow EMTALA violations; not to mention the negative public relations resulting from the media feeding frenzy that accompanies issues of "bad medicine."
Contracting Issues
Where individual contracts play a role, emergency physicians should assure that contracts between their practice and the hospital indemnify them from hospital or medical staff negligence in developing appropriate internal EMTALA compliance policies. Where contracts between the physician/hospital and payers, particularly managed care, are involved, all should designate the ED MD as the decision-maker for requesting assistance.
The emergency physician, not an off-site gatekeeper, should have the authority to make the decision about the level of care necessary. There should be no "economic sanctions" in the form of denial of payment when policies are followed appropriately and are consistent with EMTALA rules.
Contracts should specify that the managed care physician must come into the ED within the specified time to exam the patient and make the transfer decision when "gatekeepers" refuse to provide requested authorization and request transfer of the patient to a "member" facility.
The solution to many of these problems can be found in building the credibility of the emergency physician within the medical staff. Credibility, medical judgment, effective management, and leadership must be demonstrated time and time again. This means that the emergency physician, unlike most other medical staff members, must demonstrate a high level of administrative management ability as well as an ability to fairly address and accurately express expectations.
This can be better achieved through building rapport with other members of the medical staff that demonstrate the emergency physician's extreme concern for patient care underscored with an appreciation and sensitivity to the issues and dilemmas faced by on-call physicians. Once members of the medical staff learn to respect the judgment and credibility of the emergency physician, most provide the level of compliance required by EMTALA.
When this does not occur, the emergency physician must have written medical staff protocols to support their "judgment" calls and ease the misconception that the emergency physician, and not EMTALA regulations is to blame for reporting non-compliance.
Involving the ED nursing staff as invaluable allies can be extremely beneficial. The emergency staff should function as a team in protecting ED patients welfare from unknowing, or unmanageable, medical staff. In so doing, they protect the hospital and all players in the system as well. n
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