Policy must protect ED staff from on-call consultant violations
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.
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 usually 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 patient; 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, at 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 all players in the system as well.
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