THE REQUIREMENT OF THE ON-CALL PHYSICIAN TO COME TO THE EMERGENCY DEPARTMENT
By: Michael J. Schoppmann, Esq.
Denise L. Sanders, Esq.
Although this on-call list requirement is part of the hospital’s obligations under its Medicare provider agreement, EMTALA provides the enforcement actions against both a physician and a hospital when a physician who is on the hospital’s on-call list fails or refuses to appear within a reasonable period of time after being notified to appear. Therefore, members of the medical staff who have on-call obligations must be aware of the hospital’s on-call policies and the physician’s EMTALA obligations when on call. Some of these obligations can best be addressed through a Question and Answer format.
Must I see a patient when the ED calls for a consult?
If a physician is listed as on-call and requested to make an in-person appearance to evaluate and treat an individual, that physician must respond in person in a reasonable amount of time. The specifically provides for penalties against both a hospital and the physician when a physician who is on-call either fails to appear or refuses to appear within a reasonable period of time.
Can I be penalized for failing to appear within a reasonable period of time?
If a physician who is on-call, either directly, or indirectly pursuant to a CCP, refuses or fails to appear at the hospital where he/she is directly on-call in a reasonable period of time, then that physician as well as the hospital may be found to be in violation of EMTALA. Thus, a hospital and medical staff should establish in its on-call policies and procedures clear guidelines, e.g., the maximum number of minutes that may elapse between receipt of a request and the physician’s appearance, for what constitutes a reasonable response time, and make sure that its on-call physicians and other staff are aware of these time-sensitive requirements.
If a physician on-call does not fulfill his/her on-call obligation, but the hospital arranges in a timely manner for another of its physicians in that specialty to assess/ stabilize an individual as requested by the treating physician in the DED, then the hospital would not be violation of CMS’ on-call requirements. However, if a physician on-call does not fulfill his/her on-call obligation and the individual is, as a result, transferred to another hospital, then the hospital may be in violation of CMS’s requirements and both the hospital and the on-call physician may be subject to enforcement action by the OIG under the Act.
CMS recommends that hospitals establish the maximum minutes that constitute a reasonable response time. The maximum response time is generally considered to be within thirty to forty-five minutes of being called to the ED and whether phone time is included.
Can I direct that the patient be transferred to my office in lieu of my going to the ED?
When a physician is on-call for the hospital and seeing patients with scheduled appointments in his/her private office, it is not acceptable to refer emergency cases to his or her office for examination and treatment of an EMC. The physician must come to the hospital to examine the individual if requested to do so by the ED/treating physician.
If, however, it is medically indicated, such as where the physician office has specialized equipment necessary for stabilizing the patient not available at the transferring hospital, the treating physician may send an individual needing the specialized services of the on-call physician to the physician’s office if it is a provider-based part of the hospital (i.e., department of the hospital sharing the same CMS certification number as the hospital). It must be clear that this transport is not done for the convenience of the specialist but that:
- There is a genuine medical reason to move the individual,
- All individuals with the same medical condition, regardless of their ability to pay, are similarly moved to the specialist’s office, and
- The appropriate medical personnel accompany the individual to the office.
What if I see a patient in the ED who does not need emergency care but wants to follow with me in my office but cannot pay our fees? What if the patient was referred to my office from the ED after the EMC has been resolved, but the patient has no insurance and when scheduling the appointment states that he/she cannot pay my fee?
If the patient’s EMC was resolved in the ED but the ED recommended the patient be seen by you for follow-up care, EMTALA would not apply to your services and your normal office payment policies would apply, including your treatment of patients who meet your financial hardship requirements. However, if you has agreed to see the patient for necessary follow-up care arranged by you or by the ED physician, you must either see the patient or arrange for alternative, appropriate follow-up care.
What if a patient I see in the ED as an on-call physician is sent home but fails to follow-up with subsequent care and shows up in the ED again when I am not on-call?
If you are not the on-call physician, you have no obligation to go to the ED to see the patient. The ED physician, or the on-call physician, may consult you remotely for information on the patient’s prior treatment.
What if the patient seen in the ED asks whether we participate in their insurance plan and we do not, can we ask the patient how he/she is going to pay?
A hospital that is not in a managed care plan’s network of designated provider’s cannot refuse to screen and the on-call physician cannot refuse to evaluate and stabilize (or appropriately transfer) individuals who are enrolled in a plan for which you are non-participating. EMTALA provides that a participating hospital may not seek, or direct an individual to seek, authorization from the individual’s insurance company for screening or stabilization services to be furnished by a hospital, physician, or non-physician practitioner to an individual until after the hospital provided the appropriate medical screening examination and treatment that may be required to stabilize the emergency medical condition. Once the EMC is resolved, EMTALA does not prohibit the hospital or the on-call physician from following normal registration procedures for in-network or out-of-network patients. Hospitals and on-call physicians may follow reasonable registration processes for individuals for whom examination or treatment is required by this section, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.
If a patient I previously saw in the ED now comes to the ED with a related or unrelated issue, am I obligated to come to the ED to see that patient when I am not on call?
No. You are not responsible for subsequent care for the patient who returns to the ED if you are not on-call.
What if the patient I see in the ED as an on-call physician refuses to consent to treatment?
In the event an individual refuses to consent to further examination or treatment, the hospital must indicate in writing the risks and benefits of the examination and/or treatment; the reasons for refusal; a description of the examination or treatment that was refused; and the steps taken to try to secure the written, informed refusal if it was not secured. Neither the hospital nor the on-call physician may attempt to coerce individuals into making judgments against their interest by informing them that they will have to pay for their care if they remain but that their care will be free or at a lower cost if they transfer to another hospital.
Can I resign a portion of my privileges in order to avoid call obligations?
Typically, physicians should not be allowed to resign privileges included in the core competencies of their specialty in order to avoid a call. Physicians could be allowed to arrange for coverage or, when responding to call, consult physicians with additional expertise, if necessary in a particular case.
How can EMTALA obligations be met in the case of a public health emergency or a disaster?
The law provides for waivers during public health emergencies and disasters that can provide exceptions to penalties for the otherwise impermissible redirection or relocation of individuals for a medical screening examination and for inappropriate transfers.
Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals, www.DrLaw.com, is solely devoted to the representation and defense of physicians and other health care professionals. The authors of this article may be contacted at 1‐800‐445‐0954 or via email at info@DrLaw.com.