EMTALA Panel Tackles Shared Call, Disaster Issues


WASHINGTON — The Centers for Medicare and Medicaid Services should clarify its position on shared on-call services to assure hospitals that the arrangements are allowed under the Emergency Medical Treatment and Active Labor Act, a federal advisory panel has recommended.

“This is a huge issue around the country,” said Dr. David Siegel, chair of the EMTALA technical advisory group and senior physician consultant/clinical coordinator for Florida Medical Quality Assurance Inc. (FMQAI). “We're being told that, essentially, under current policy … there's nothing wrong with [shared call], but the perception out there is that you can't do these things.”

CMS staff explained to the advisory group that sharing call is allowed, but hospitals are still required to perform screening exams for patients before they are transferred to the on-duty hospital.

“Our policy is that if two hospitals sharing call coverage divide it up month one, month two, that's fine,” said Molly Smith of the agency's Center for Medicare Management. “What hospitals do need to be aware of is that if a hospital this month doesn't have that call coverage but a patient does come to that emergency room asking for an examination … they still have an obligation under EMTALA to do the medical screening exam—they cannot just automatically transfer that patient out.”

The panel agreed to the recommendation to publicize CMS's stance on shared call and will continue to discuss the issue at future meetings.

While shared call may be permitted by CMS, hospitals should ensure that their arrangements do not violate antitrust laws, cautioned panel member Julie Mathis Nelson, an attorney with Coppersmith Gordon Schermer Owens & Nelson, Phoenix.

Exemptions in Emergencies

The panel also agreed to explore expansion of EMTALA exemptions during emergency situations. Current law allows exemptions only during national emergencies, is limited to a 72-hour period, and applies only to transfer requirements.

The panel is considering allowing exemptions from EMTALA during state, local, and hospital-specific emergencies, as well as lengthening the exemption time period. “As we have learned from Hurricane Katrina and other types of disasters, a hospital's or physician's ability to comply with EMTALA may extend beyond the EMTALA transfer requirements and exceed 72 hours,” according to technical advisory group documents.

EMTALA provisions being considered by the panel for waiver eligibility include medical screening examination, requirements defining qualified medical personnel, patient stabilization, documentation, and duty to accept transfers. Exemptions would be decided retrospectively, with some being decided on a case-by-case basis.

Panel member Warren Jones of the University of Mississippi, Jackson, argued that the technical advisory group did not need to address the issue, because efforts are underway at the national and state levels to reconfigure emergency procedures. “I don't think we need to regulate down to that level,” he argued. “The one defense against an EMTALA allegation is that you employed good clinical judgment in providing access and making the decision in the best interest of the patient.”

The panel will look into details of the exemptions and discuss recommendations at future meetings.

Consulting Personal Physicians

The group also approved recommendations specifically allowing communications between a treating physician and a patient's personal physician during the initial screening examination. EMTALA could be construed to prohibit those communications, panel members said, and the regulations should be clarified.

The EMTALA technical advisory group recommended that, while the contacted physician may give advice and provide information, the treating physician or qualified medical personnel should be responsible for the patient's care. The contact is not required and should not delay treatment.

After contact is made, the treating physician or qualified medical personnel would proceed with the patient's medical screening and stabilizing treatment as indicated, the recommendation says. If there is a difference of opinion between the physicians, the medical judgment of the treating clinician shall prevail, the panel agreed.

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