Higher EMTALA Penalties Mean You’d Better Check Your On-Call SystemsCMS and OIG Urge On-Call Physician Training for Emergency Departments
Medical professionals working in emergency departments (ED) constantly have to make split second decisions in a stressful, crowded, and often understaffed environment. Failure to comply with federal regulations can mean severe penalties not only for the hospital itself, but also for on-duty and on-call staff.
The Emergency Medical Treatment and Labor Act of 1986 (EMTALA) prohibits EDs from turning away patients, regardless of ability to pay or limited insurance coverage. But compliance is an issue—especially when it comes to on-call physicians.
Within the last year, EMTALA penalties have doubled and the Office of Inspector General (OIG) has updated the definition of “responsible physician” to include on-call physicians, warns healthcare compliance expert Sue Dill Calloway, RN, MS, JD. In her live webinar with AudioEducator, Calloway examines the EMTALA regulations concerning on-call physicians, outlining what both hospitals and on-call physicians should do to ensure compliance with the law.
4 Key EMTALA Requirements
At a brief glance, EMTALA guidelines appear much more straightforward than they actually are. In its essence, EMTALA’s purpose is to ensure that EDs do not discriminate in accepting patients, and that they follow certain guidelines when transferring patients requiring treatment at another facility.
EMTALA applies to all individuals who enter the dedicated ED of a hospital that participates in Medicare or Medicaid—and this includes critical access hospitals (CAH).
When a patient enters the ED, EMTALA requires hospitals to:
- Provide appropriate medical screening examinations (MSE) and identify or exclude the presence of an emergency medical condition (EMC).
- Stabilize and treat patients in the case of an EMC, in a timely manner and within the capabilities of the treating hospital.
- Transfer patients via an “appropriate transfer”: Patients must be stabilized, may only be transferred to a higher level of care (HLOC) and never to a lower level, and may not be transferred solely to lighten the load of the treating hospital’s medical staff.
- Transfer unstable patients to a HLOC only if benefits outweigh the risk of transfer.
Note: If the treating physician determines that the patient presents no EMC, EMTALA imposes no further obligations on the treating hospital.
On-Call Physicians Must Appear When Called
If the treating physician determines that an EMC patient requires an on-call specialist’s evaluation, the burden of EMTALA compliance shifts to that on-call physician. If the on-call physician fails to make an appearance, EMTALA may impose a penalty on that physician.
And these penalties are stiff. On-call physicians who violate EMTALA can pay $50,000, according to the American College of Emergency Physicians. Physicians can also be exposed to contract liability and be excluded from the Medicare and Medicaid programs. The consequences of such exclusions, according to healthcare legal expert Kim Stanger, are that the physician may no longer:
- Bill Medicare or Medicaid for any services
- Practice in, be employed by, or contract with any entity (including hospitals) that participates in Medicare or Medicaid.
When the on-call physician fails to appear, the treating hospital is also at risk of facing penalties and exclusion from Medicare and Medicaid. But there are actions can your hospital can take to help prevent further liabilities.
4 Liability-Prevention Guidelines
EMTALA fines are serious. Previously untouched since 1987, penalties more than doubled in 2017 as a result of the Federal Civil Penalties Inflation Adjustment Act. The fine for hospitals with 100 beds or more increased from $50,000 to $103,139, according to a table released by CMS. For hospitals with fewer than 100 beds, the penalty increase from $25,000 to $51,570 is a harsh reality.
To run a successful ED, you want to protect not only your patients but also your hospital and staff. Since on-call physicians have received extra attention from EMTALA, CMS and the OIG suggest that hospitals provide EMTALA on-call training. Additionally, industry leaders such as the American Health Lawyers Association recommend that you:
- Maintain physician on-call lists (not just group practice names on ED call schedules)
- Implement medical staff bylaws and related documents and train staff regularly on such documentation. Ensure emergency department coverage is thoroughly covered.
- Implement policies to address the unavailability of certain specialists and physicians.
- Determine what is the “reasonable amount of time” (in minutes) that on-call physicians have to appear at the hospital after having been contacted by the treating physician, and obtain written confirmation that all on-call staff are aware that a failure to appear in person may constitute an EMTALA violation.
Even in hospitals with the best training and documentation, there may be times when on-call physicians still fail to appear. That’s why it’s more critical than ever that you know when—and how—to take action against noncompliant on-call physicians, Calloway notes. When physicians fail to show, hospitals are advised to take and document immediate corrective action to increase the hospital’s chances of remaining in network and avoiding fines.