On-Call

May 2, 2024

Posted on by Courtney Patterson

QUESTION:
May a physician be on call for more than one hospital at the same time (take “simultaneous call”) or perform elective surgeries while on call?  If so, is that physician required to identify a specific back-up physician who will take calls at our hospital if the original physician is called to another hospital or is in the middle of an elective surgery when called by our hospital?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
CMS doesn’t specifically require that another physician be identified to take back-up call if the original on-call physician is performing elective surgery or is taking call at another hospital when the ED needs assistance.  Instead, CMS says that a “back-up plan” must be in place.  Per CMS, “some hospitals may employ the use of ‘jeopardy’ or back-up call schedules,” indicating that other hospitals may choose to not use back-up call schedules.  Here’s the full quote from the EMTALA Interpretive Guidelines (found in Appendix V of the Medicare State Operations Manual):

The [hospital’s] policies and procedures must also ensure that the hospital provides emergency services that meet the needs of an individual with an EMC if the hospital chooses to employ any of the on-call options permitted under the regulations, i.e., community call, simultaneous call, or elective procedures while on-call. In other words, there must be a back-up plan to these optional arrangements. For instance, some hospitals may employ the use of “jeopardy” or back-up call schedules to be used only under extreme circumstances. The hospital must be able to demonstrate that hospital staff is aware of and able to execute the back-up procedures. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf

Of course, a hospital may decide that its On-Call Policy will not permit simultaneous call or elective surgeries while on call.  Or, a hospital’s policy may require on-call physicians to identify a specific individual to provide back-up coverage in such cases.  The key is to clearly identify the requirements in the hospital’s On-Call Policy.

If you have a quick question about this, e-mail Mary Paterni at MPaterni@hortyspringer.com.

December 22, 2022

Posted on by jwilbert

QUESTION:

Our hospital has noticed that on-call coverage by other local hospitals has gotten thinner since the pandemic.  If other hospitals adopt lighter on-call schedules, it means more patients are transferred to our hospital and our on-call physicians have more of a burden.  Is it acceptable for these other hospitals to have limited (or zero) on-call requirements for their specialists?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:

The Emergency Medical Treatment and Labor Act (“EMTALA”) requires every Medicare-participating hospital with an Emergency Department to have an on‑call schedule.  Specifically, each hospital is required to have “a list of physicians who are on call for duty after the initial examination to provide further evaluation and/or treatment necessary to stabilize an individual with an emergency medical condition.”  42 C.F.R. §489.20(r)(2).

The Centers for Medicare & Medicaid Services (“CMS”) expects a hospital to provide adequate on-call coverage consistent with the services provided at the hospital and the resources the hospital has available.  If a hospital has physicians on the Medical Staff who routinely provide services in their specialty to patients in the community, the hospital is expected to also provide a reasonable amount of on-call coverage in that specialty.

Prior to 2003, CMS informally operated under the “three‑physician rule.”  This rule stated that if there were three or more specialists on a hospital’s Medical Staff, CMS expected that hospital to provide on-call coverage 24 hours a day, 365 days a year.  In other words, under the three-physician rule, physicians were each expected to provide about 10 days of on-call coverage per month.

In 2003, CMS specifically disavowed the three‑physician rule.  In lieu of the three‑physician rule, CMS said it will use an “all relevant factors” test by which CMS will:

  • consider all relevant factors, including the number of physicians on staff, other demands on these physicians, the frequency with which the hospital’s patients typically require services of on‑call physicians, and the provisions the hospital has made for situations in which a physician in the specialty is not available or the on‑call physician is unable to respond.

CMS has refused to give any firm guidance on the number of days of coverage a hospital must have per physician under the “all relevant factors” test.  Thus, a hospital will only know if its on-call schedule is compliant if, after a complaint and CMS investigation, the hospital is found to be in compliance with EMTALA.

If you have reason to believe that another hospital’s on-call coverage is inadequate or nonexistent, you may want to first gather data to attempt to confirm this is the case.  If the data seem to confirm a problem exists, you might want to arrange a meeting with the other hospital to discuss the issues.  EMTALA allows for hospitals to work together to develop “community call plans” – this might allow all the involved hospitals to make better use of their resources.

There’s certainly no easy solution to on-call problems.  Hopefully, gathering data and communicating will result in better outcomes than any of the alternatives.

February 22, 2018

Posted on by hortyspringer

QUESTION:        Our hospital is looking for creative ways to reduce the on-call burden for our physicians.  We’d like to find more efficient ways to schedule and structure their time, but we don’t want to sacrifice quality.  We’ve heard that some organizations are moving toward community call.  Does CMS permit this?

ANSWER:             Yes, CMS does permit organizations to adopt so-called “community call” arrangements.  Community call plans can potentially reduce the on-call burden on physicians, can allow hospitals to provide specialty care in a more efficient and reasonable manner, can eliminate the need for duplicative coverage at nearby hospitals, and can increase access to limited resources throughout the region.

CMS permits hospitals to enter into community call plans so long as those plans meet certain defined criteria.  Among other things, the call plan must have a clear delineation of on-call coverage responsibilities (explaining when each participating hospital is responsible for on-call coverage).  It must include a description of the specific geographic area that the plan covers.  Local and regional EMS protocols should include information on the community call arrangements.  In addition, the plan must be annually assessed by each of the participating hospitals.

So long as these criteria (and a handful of others) are met, CMS will generally permit hospitals to engage in the community call arrangement.  CMS has not provided much detail beyond this on what an ideal model should look like — instead, the agency has given hospitals some room to be creative.

The difficulty comes in designing an effective community call plan that is agreeable to all of the participants.   There are a lot of details to consider and resolve.  For example, hospitals may have to reconcile different approaches on paying for call.  In addition, hospitals must be prepared to invest time, effort, money, and personnel in administrating and implementing the call plan.  In some states, the department of health may need to review and approve the call plan.  There are many other topics that should be considered and addressed as well.

October 19, 2017

Posted on by hortyspringer

QUESTION:        The hospital across town is very lax with its on-call schedule. Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient. Our physicians feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

ANSWER:            Yes. Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer. A lateral transfer occurs where the same services are provided at both the sending hospital and the receiving hospital. Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.” However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.” Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient. This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).

This requirement has put hospitals across the country, and their on-call physicians, in a difficult position. Essentially, this requirement can make on-call physicians at Hospital B (the receiving hospital) responsible not only for Hospital B’s ED patients, but also potentially for many of Hospital A’s (the sending Hospital) ED patients. That could be because Hospital A doesn’t have the needed specialist on its medical staff or because Hospital A has a less rigorous call schedule than Hospital B.

To learn more about this issue, please join Phil Zarone and Ian Donaldson on November 7, 2017 for an audio conference on “On-Call and EMTALA Policies.” For more information, click here.

June 8, 2017

Posted on by HSMAdmin

QUESTION:        Last week we had a 37-week pregnant patient present to our emergency department in active labor.  Her obstetrician was not on our medical staff and the on-call obstetrician was contacted to come in.  In the course of the phone call between the ED physician and the on-call obstetrician, the obstetrician realized that she knew this patient, and she informed the ED physician that she had treated her in the past but had terminated that physician-patient relationship the previous year because the patient had been noncompliant in connection with her previous pregnancy and related complications.  The on-call physician didn’t want to come in to treat the patient because she had gone through a formal process of sending the patient a letter, with the required advance notice, and didn’t want to reestablish that relationship.  Does the on-call physician really have to see a patient in this situation?  It seems unfair.

ANSWER:           Unfortunately, yes.  While it’s not a popular answer and it does seem unfair from the perspective of the obstetrician in your situation who likely did everything required of her to formally terminate that physician-patient relationship – a process that usually requires written notification with at least 30 days’ advance notice (and sometimes longer in the case of a pregnant patient) – the Emergency Medical Treatment and Active Labor Act (“EMTALA”) requirements trump the fact that the obstetrician terminated the physician-patient relationship.  In this case, the obstetrician is responding to the ED as the on-call physician, and she has to respond.

In the absence of a statute like that in effect in Virginia, which specifically provides that a physician-patient relationship created by a response to the ED by an on-call physician is “deemed terminated” upon the discharge of the patient from the ED or, if the patient is admitted, upon the patient’s discharge from the hospital and the completion of any follow-up care prescribed by the on-call physician, the obstetrician will likely have to go through the advance notice and termination process again.

The situation would be different if this patient presented to the ED and told the ED that the obstetrician was her treating physician.  In that case, when the ED contacted the obstetrician to inform her that one of her patients was in the ED, the obstetrician would have been able to inform the ED that she had terminated the physician-patient relationship, and the ED would then have resorted to contacting the on-call obstetrician.

February 19, 2015

Posted on by hortyspringer

QUESTION:    Our pediatricians have asked that their Nurse Practitioners be permitted to be listed on the on-call list of the Hospital in lieu of their collaborating physician. Is this permissible under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:    No. Nurse Practitioners (or other nonphysician practitioners) cannot be listed on the Emergency Department on-call coverage list. EMTALA requires hospitals to “maintain a list of ‘physicians’ who are on call for duty, after the initial Emergency Department examination, to provide treatment necessary to stabilize an individual with an emergency medical condition.” 42 U.S.C.A. §1395cc(a)(1)(I).

EMTALA specifically requires the physicians on a hospital’s medical staff to be individually listed to provide on-call services necessary to stabilize a patient.

Nurse Practitioners may not independently participate in the emergency on-call roster (formally or informally by agreement with their collaborating physicians) in lieu of the collaborating physician. The collaborating physicians (or their covering physician) must be listed for on-call coverage and must personally respond to all calls in a timely manner, in accordance with requirements set forth in the Bylaws and EMTALA On-Call Policy. Following discussion with the Emergency Department, the collaborating physician may direct a nurse practitioner to see the patient, gather data, and order tests for further review by the collaborating physician. However, the collaborating physician must still personally see the patient when requested by the Emergency Department physician.

A Nurse Practitioner (and other APRNs and Physician Assistants) may be used to assist the on-call physician in responding to call. Any decision to use any of these nonphysician practitioners to respond initially to the Emergency Department should be made by the on-call physician in conjunction with the Emergency Department physician.

If the on-call physician and the Emergency Department physician do not agree, the Emergency Department physician is the final decision-maker. (If the Emergency Department physician disagrees with the on-call physician’s decision to send a Nurse Practitioner or other nonphysician practitioner, the Emergency Department physician is to request the on-call physician to come in.) This decision must be based on the patient’s medical needs and the capabilities of the hospital, and must be consistent with hospital policies and/or protocols.

Nonphysician practitioners – qualified medical personnel (“QMP”) under EMTALA – can perform the medical screening examination under EMTALA. This also means that the QMP has been granted the clinical privileges necessary to perform the medical screening examination, and that the privileges come within the applicable state licensing regulations for that QMP category. The EMTALA requirement in this situation is that the hospital’s governing Board has approved, in writing, the category of nonphysician practitioners who will be performing the medical screening examination.

Join Charlotte Jefferies and Dan Mulholland in warm, sunny Orlando on March 19-20 for a workshop on Advanced Practice Clinicians!