EMTALA Regulations - Final - Sacks Tierney, PA, Attorneys - Scottsdale Arizona Law Firm providing legal services in real estate, business and corporate law, construction, employment, family law, immigration and civil litigation

HEALTHCARE LAW

September 2003

EMTALA Regulations - Final

Many physicians are limiting their participation in call coverage, or refusing to participate at all, and the final EMTALA regulations are not likely to reverse that trend

In May 2002, the Centers for Medicare and Medicaid Services (CMS) issued proposed regulations under the Emergency Medical Treatment and Active Labor Act (EMTALA). Those proposed regulations dealt with various issues, including hospital and physician responsibilities for on-call coverage.

In June 2002, CMS also issued two separate Program Memoranda providing additional informal guidance to physicians and hospitals for on-call responsibilities. I summarized the on-call provisions of these proposed regulations and program memoranda in the September 2002 issue of MD News, Phoenix Metro Valley edition. On September 9, 2003, CMS issued its final regulations, adopting almost all of the positions that it set forth in the proposed regulations and the Program Memoranda.

The main thrust of the final regulations was to provide hospitals with flexibility to satisfy on-call requirements. Under the EMTALA statute, hospitals are required to maintain on-call physician lists for their emergency departments, and physicians who are on call must respond when called. Beyond that, there is little else required in the statute for physicians with respect to on-call obligations.

The final regulations require hospitals with emergency departments to maintain an on-call list of physicians on its medical staff in a manner that "best meets the needs of the hospital's patients who are receiving services required under [EMTALA] in accordance with the resources available to the hospital, including the availability of on-call physicians." In addition, the hospital must have written policies and procedures in place to respond to situations when an on-call physician does not respond. The final regulations also address the specific situation when an on-call physician schedules elective surgery while on call, or is on call for more than one facility at one time, and the regulations require the hospital to have written policies and procedures in place to provide for coverage in the event that such a physician is unable to respond because he is in surgery or covering call elsewhere.

Those are the only requirements relating to on-call coverage in the final regulations. It is interesting to note what is not included in the regulations. For example, neither the statute nor the regulations require a hospital to provide 24-hour/7-day-a-week on-call coverage in a specialty, and CMS specifically rejected such a requirement in the preamble accompanying the final regulations. Along these same lines, CMS specifically disclaimed the common rule of thumb that requires such coverage for any specialty in which a hospital has at least three physicians on staff in that specialty. However, although not specifically required in the regulations, under the "best meets the needs" standard of the final regulations, 24-hour/7-day-a-week on-call coverage may be appropriate for many hospitals, particularly those with Level One trauma centers.

Furthermore, the regulations do not require physicians to take call coverage. This is not a requirement in the EMTALA statute, and CMS, despite requests for such a requirement, refused to adopt it. CMS specifically stated that "these are local decisions that can be made reasonably only at the individual hospital level through coordination between the hospitals and their staffs of physicians." CMS pointed to other laws or medical staff bylaw provisions that may impose call coverage requirements on physicians, but, both in the proposed and the final regulations, CMS has refused to adopt such a requirement under EMTALA.

The final regulations deal with many issues other than call coverage, including EMTALA obligations for hospital inpatients and for patients who present at places other than a dedicated emergency room. For the most part, the final regulations are consistent with provisions in the proposed regulations. Many physicians are limiting their participation in call coverage, or refusing to participate at all, and the final EMTALA regulations are not likely to reverse that trend.

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.