BALTIMORE — Hospital emergency department on-call roster requirements should be moved from Emergency Medical Treatment and Labor Act regulations to those relating to Medicare provider agreements, a federal advisory group has recommended.
Such a move away from the regulations would ensure that plaintiffs in lawsuits could not use the requirements to file a private right of action, the recommendation's supporters said at a meeting of the Department of Health and Human Services technical advisory group on the Emergency Medical Treatment and Labor Act (EMTALA).
If on-call roster requirements remain regulated under EMTALA, “a plaintiff's lawyer could argue that the hospital has violated EMTALA—and then would have a private right of action if the plaintiff's lawyers or the plaintiff does not like the makeup of a hospital's on-call list,” said Julie Mathis Nelson, J.D., of the law firm Coopersmith Gordon Schermer Owens & Nelson in Phoenix, Ariz.
The technical advisory group makes recommendations to the Department of Health and Human Services and the administrator of the Centers for Medicare and Medicaid Services on issues related to EMTALA.
Panel member Charlotte Yeh, M.D., an emergency physician and a regional administrator with the CMS, said she was concerned that moving the requirements could eliminate patients' ability to seek compensation if injured.
But panel member Brian Robinson responded that patients could still use EMTALA to seek redress. “They could argue that they were not appropriately medically screened or not appropriately stabilized, so they still have opportunities that they can argue,” pointed out Robinson, president and CEO of HCA Las Vegas Market.
Gregory Demske, of the HHS Office of Inspector General, said the recommendation reflects the way the office approaches on-call roster violations now. “This change is consistent with the way we interpret the statute,” he said.
EMTALA regulations declare that as a requirement for participation in the Medicare program, “hospitals must maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition,” according to CMS documents. Physician failure to respond when called could result in EMTALA violation.
CMS state operations manuals specify that each hospital has the discretion to maintain the on-call list “in a manner that best meets the needs of its patients.”
The EMTALA advisory panel is exploring possible recommendations on a number of other on-call issues. Among those under consideration: whether required physician response time to a call should be stated as a specific time or a range of minutes. The panel will also review options that fall beyond the regulatory realm of EMTALA yet could ease on-call challenges.
In testimony before the EMTALA Technical Advisory Group, the American Hospital Association said many hospitals are having difficulty maintaining full-time on-call coverage.
“From the physician's perspective, they are assuming all of the liability and bearing the costs of providing services,” testified Kathleen DeVine, CEO of Saint Anthony Hospital in Chicago.
Hospital groups said the increase of physician-owned specialty hospitals has exacerbated the on-call shortage by pulling specialists away from community hospitals. Specialty hospital representatives countered that their physician members often provide on-call services to hospitals in their area, including many community hospitals.