Educate on-call consultants about EMTALA
Educate on-call consultants about EMTALA
On-call physicians are currently the largest single source of EMTALA citations in the country, reports Stephen Frew, a Rockford, IL-based health care attorney. "The level of citations are heavy and the focus of the regulators regarding on-call consultants is broad for many hospitals."
Violations have increased in large part due to the ignorance of consultants about EMTALA, notes Frew. "Historically the consultants view EMTALA as being entirely an ED problem, and did not understand that it also applied to them," he says. Also, there is a greater awareness by receiving hospitals about requirements to report violations, which has increased the number of citations.
Consultants may be ignorant of EMTALA requirements. "Personally, I am repeatedly surprised at how oblivious our colleagues can be on these issues," says Larry Mellick, MD, FAAP, FACEP, chair and professor of emergency medicine at the Medical College of Georgia in Augusta. "For some reason it isn’t on their radar screens, and when they are made aware of the requirements they are absolutely incredulous that there is such a law."
Here are responsibilities of on-call consultants under EMTALA:
• They must participate in the call system if required by the hospital.
• They must be capable of being contacted and making a response to the hospital. There is no fixed rule on response time, but it’s generally 30 minutes for a stat response, and 60-90 minutes for a routine response.
• They must respond to the hospital to provide care, rather than having patients sent to their office.
• They have a responsibility to accept all patients within their privileges.
• If the ED physician declares a need for the consultant’s presence, he or she is required to respond. The consultant may not substitute admission of the patient for coming to the ED. They must respond within the time period before making the decision to admit the patient.
In HCFA’s region 9, which includes the state of California, more than half of EMTALA alleged violations involve on-call physicians. "A lot of on-call consultants still don’t realize their obligations under EMTALA," stresses Larry Bedard, MD, FACEP, director of emergency services at Doctors Medical Center in San Pablo and Pinole, CA. "I think most ED physicians understand the law better than the on-call consultants. We need to educate the medical staff about what their responsibilities are."
Consultants may be required in the ED for the following reasons:
Prolonged care is required. "Most ED physicians are well trained in plastic surgery techniques for repair of wounds. However, they don’t have the time in a busy ED to do complex wound repairs," says Mellick. "The consultant may have special skills that are also owned by the ED physician. However, the ED physician doesn’t have the time, or the family wants the specialist’ to repair the wound."
Special skills or training are required. The ED physician can make the diagnosis of appendicitis as well as the surgeon, notes Mellick. "However, the ED physician can’t take the patient to surgery. The ED physician is not asking for cognitive for intellectual guidance. The consultant has a special skill or training not owned by the ED physician," he explains.
Special information is required. Consultants may be needed to address the needs of a complicated patient with multiple, complex disease processes. "An example would be an HIV patient with TB," Mellick says. "An infectious disease consultant may be contacted for advice concerning the latest therapy guidelines."
Legal requirements for on-call consultants
EMTALA is very specific that the scope of on-call consultants must include all areas of physician practice that are rendered by the hospital on an active basis, says Frew. "That doesn’t mean it’s limited to the active medical staff category. What it means is that any medical services currently available to the public at that institution must be backed by on-call personnel," he explains.
Recently, HCFA held a Kansas City hospital responsible for a turndown of a transfer by a non on-call courtesy staff physician because the hospital had no on-call psychiatric staff to cover its psychiatric services. "At the time, they had no active psychiatric staff, so they were faced with a choice of covering it with general medicine on call, closing the unit, or hiring staff," says Frew. "This particular hospital elected to temporarily cover with internal medicine and has commenced hiring hospital-employed psychiatrists," he reports.
Another recent case involved a hospital that had acute dialysis available only on a scheduled basis. "They were cited for not having an on-call list for transferring a patient who needed acute dialysis. That meant that they did not have on-call capability, so that hospital chose to close its dialysis service," Frew explains.
Most violations involve hospitals that don’t have consultants from all specialties on the call list, or don’t include subspecialty calls, says Frew. "They are the ones running into the most trouble on the basis of an inadequate list," he explains.
ED staff seen as troublemakers
EMTALA may cause a rift between you and the medical staff. "In many instances, the ED physicians have been viewed as troublemakers for bringing this up, by disturbing the usual and customary practice that’s gone on in the community," Frew explains. "The consultants want to shoot the messengers."
This misdirected anger may cause problems for your ED group. "If you alienate the medical staff, they may encourage administration get rid of your ED group and go to the competition. The ED group may be considered a contract and [seen as] dispensable, which can cause political tension between you and the medical staff," says Charlotte Yeh, MD, FACEP, medical director for Medicare Policy at National Heritage Insurance Company in Hingham, MA.
As a result, ED physicians are often reluctant to make waves. "Then when a violation occurs, the ED group is scapegoated’ as the reason it occurs. So being quiet has an equal potential of costing them their jobs," says Frew.
Consultants may give no credence to the ED, because they are not private attendings. "I encounter that philosophy in a number of hospitals, which requires a cultural change," Frew says.
On-call consultants may not believe EMTALA applies to them. "They may believe that it’s just an ED thing, or don’t believe they can be forced to take a call. But if the hospital sets a call list and is a Medicare provider, their choice is to comply with EMTALA measures or not practice at the hospital," says Frew. "In a Phoenix hospital, virtually every plastic surgeon has withdrawn their privileges at regional hospitals because [of the increased responsibility for liability]." (See related story on pg. 81.)
Ways to manage conflicts
Be a leader. "You have two choices," says Frew. "You can either take an assertive leadership role, or sit back and hope the consultants don’t do something you are scapegoated for."
It comes down to a tricky balance between asserting leadership and avoiding problems with consultants. "We have seen ED physicians fired over insisting on proper standards, and there is some litigation going on now with that issue," says Frew. "Some of these physicians had made extensive records to administration, which had gone ignored."
Ask consultants to do inservicing. EMTALA actually provides an incentive to medical staff to work closely with the ED staff, notes Frew. "This is because the ED physician’s decision is the controlling one, not the consultant’s," he stresses. "Therefore, it places a high premium on the on-call staff for getting along with and assisting the ED staff. If they think they are being called too quickly about a pediatric sniffle, then it’s to the pediatrician’s advantage to do inservicing with ED staff."
Act as information distributors about EMTALA. Distribute information to critical members of the medical staff, such as the hospital’s chief of surgery or chief of staff, Frew recommends. "Be diplomatic by circulating third-party sources, so that you won’t be viewed as an advocate," he says.
Identify a few medical staff opinion leaders. Educate the leaders about both the law and the implications for the hospital. "You need to have allies on the medical staff," says Frew. "Then let those allies carry the message through."
Typically, the medical staff’s initial reaction is negative. "It will create controversy," Frew predicts. "It doesn’t produce an instant interest in taking corrective action. It produces the attitude that can’t possibly be right.’ But [after that], the medical staff will probably bring in outside speakers to explain it to them."
Distribute information before you confront consultants about violations. "After [the information is distributed], when faced with a case, you can then stand your ground and say, no, we can’t transfer this patient, you’ve got to come in,’" says Frew. "Since they already have the information, you can refer them to it."
Know exceptions. There are situations where the on-call physician doesn’t need to come to the ED, says Yeh. "If the patient meets the definition of stable, they can be sent to the physician’s office," she explains. "If the physician has special equipment in the office, it may be appropriate to send the patient to the physician’s office. There is increasing capability at the offices, whereas certain services could previously only be done in the hospital."
Do data collection. Document every instance when consultants have refused to come in, or have ordered that the patient be transferred after asking about their financial situation, Frew recommends. "Bring that list of specific instances to administration. That doesn’t always work, but at least you have done your job by alerting them," he says.
One ED physician sent administration a stack of data about on-call responses, where admissions in critical condition weren’t seen until four to 18 hours later, says Frew. "He brought all the data to administrators, and they told him we don’t see a problem,’" he reports.
Still, make sure everything is in writing. "You need to do this, because when the day comes that HCFA investigators show up and discover these violations, you don’t want to be held responsible for not doing what administration insisted on," says Frew. "I know of physicians who have left hospitals because their certainty that their personal EMTALA liability was going to be serious threat to their livelihood if they didn’t leave."
Come to an understanding in advance. When you can, working it out prospectively is far better, says Yeh. "You do not want to do your education and challenges in the heat of the moment at 2 a.m. Engage the leadership of medical staff, and clearly delineate the responsibility of on-call physicians with respect to EMTALA [during down time]. Make sure they understand the types of cases it is appropriate for them to respond to in the ED," says Yeh.
Work with MCOs. "Your efforts may include working with third-party payors to make sure they understand the responsibility of on-call physicians, and therefore reimburse them if they respond appropriately," says Yeh.
Know documentation requirements for transfer. "If the ED is going to send a patient to a physician’s office, that patient must meet the definition of stable. Or if they are not stable, then the ED staff must fulfill the transfer requirements showing that the benefits outweigh the risks," says Yeh.
Don’t feel overwhelmed by the requirements for transfer. "When people get uptight about paperwork, I point out that it’s a part of good medical practice," says Yeh. "When would you ever send a patient for care to somebody’s office without calling the physician, making sure he or she will accept the patient, and sending along the medical records? Those are the essence of the transfer requirements."
Be aggressive when necessary. "Take advantage of teachable moments," Bedard stresses. "Tell the consultant, If you absolutely refuse to come in, I will transfer the patient to a major medical center. But I need to inform you that I am required to report you, so give me your address because I have to put that on the form. And by the way, they can take you off Medicare for five years and give you a $50,000 fine, which is not covered by your malpractice insurance."
The law clearly says that the consultant must respond based on your clinical judgment, Bedard emphasizes. "The consultant at home may say, From what you describe, they sound stable,’ but if there is any doubt in your mind, your response should be, Examine the patient yourself and then help me with the decision.’"
Err on the side of caution, Bedard advises. "My advice is, if you are caught between a rock and hard place and have a patient that needs a specialist, always do what is in the best interest of the patient."
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