Emergency Medical Treatment and Active Labor Act

Physicians and physician-specialists employed privately and by hospitals find the mandates of the Emergency Medical Treatment and Active Labor Act (EMTALA) to be puzzling. A study by the Government Accountability Office (GAO) in 2001 found that 60 percent of on-call physicians found the law to be confusing.1 EMTALA was established by Congress in 1986 to make sure patients in need of immediate medical care receive it from a hospital's Emergency Department (ED) whether the patient has insurance or not. It was designed, among other things, to stop patient dumping. Patient dumping occurs when a patient comes to an ED presenting emergency conditions and is transferred to another hospital, without and initial examination or proper treatment, because of a lack of insurance.

Under EMTALA, hospitals take on more of the burden associated with compliance than physicians. Caroline Steinberg, The American Hospital Association's vice president for trends analysis says, "There is an unevenness in the social contract of EMTALA. Hospitals are required to treat whoever walks in, but physicians are not. The demand for ED services just keeps going up, and the supply of physicians willing to provide coverage keeps going down."2 For most of the US there is little incentive for physicians to sign up for on-call duty. Patients in ED's with no insurance are taking a financial toll on a healthcare system seeing operating expenses rise while reimbursements are failing to adequately keep up.

Emergency physicians in hospitals are especially feeling this financial pressure. A study by the AMA's Center for Health Policy Research found that in 2001 emergency physicians incurred an average annual cost of $138,300 in lost revenue because of EMTALA-mandated care.3 It is hard to get physicians, hospital employed or not, to take call because the risks usually outweigh the rewards. The lack of physicians nation wide is also a problem. When there is only a small number of physicians in their specialties on the medical staff, physicians are particularly resistive to on-call duty. With a shorter roster, physician-specialists find that the burden they carry is great.4 Physicians have a stressful job and compound this stress with call coverage that usually yields lost revenue (due to no insurance or bad hospital contracts) and longer hours/less free time. Private physicians often negotiate call coverage packages with hospitals in order to use their facilities.

This can create a problem in communities where private physician-specialists are commodities. Hospitals, under federal law, are required to have on-call rosters in order to maintain Medicare status. Under EMTALA, the hospital is obligated to develop an on-call roster of physicians who will conduct emergency medical screenings and stabilize patients with emergency conditions. However, most hospitals are finding it difficult to get physicians to assume on-call responsibilities, especially those in the surgical specialties and obstetrics and gynecology.5 Physicians can also lose Medicare status for EMTALA violations and are opting not to sign up for on-call service. The Act is open to a lot of interpretation and doctors don't want to risk a lawsuit. However, some private physicians do need use of hospital facilities and have to negotiate call coverage options.

Negotiations are usually done on a hospital by hospital basis. No federal law requires physicians to take call, and increasingly, call-panel service is voluntary under medical staff bylaws.6 Usually these bylaws explain how physicians are reimbursed for call coverage. The incentives to lure physicians to take call should be fair to the physicians. Typically physicians should expect to get anywhere from $1,000 to $3,000 for being on call or having malpractice insurance provided by the hospital. Unfortunately, physicians are not always being treated fairly.

Specialists' organizations are issuing statements explaining their stance on proper call-coverage conduct. The American Academy of Orthopaedic Surgeons/American Association of Orthopaedic Surgeons position statement reads, "The AAOS believes that hospitals and orthopaedic surgeons should negotiate an appropriate amount of on-call coverage that is not burdensome to either party. Hospitals should also compensate orthopaedic surgeons and other physicians for being on-call. Payment for these services should reflect the work and liability risk associated with these services."7 Why be on-call, unless you need facility use, if a hospital doesn't compensate your skills appropriately? Today physicians are more in the driver's seat. In the past physicians worked ED's as a means to build up clientele. That has changed with Specialty hospitals (they do not fall under the EMTALA mandate).

Specialty hospitals garner enough clientele in a community with insurance or are able to self pay and don't need the inconvenience of being on-call. Physician attitudes have also changed. Working set hours and spending time with family is more important than working excessive hours and dealing with stressful patients unable to pay or who sue for malpractice. The IOM report Hospital-Based Emergency Care: At the Breaking Point cites one survey that found nearly 80% of specialists had difficulty obtaining payment for on-call services rendered, and another survey it cites noted that 36% of neurosurgeons reported being sued by patients seen in an ED. Hospitals, physicians, and private physicians need to find an agreement that works for both parties. EMTALA was not designed to have ED's used by the uninsured as their primary care provider. However, that is increasingly becoming the case (47 million uninsured as of 2007) and it is having a negative impact on healthcare nationwide. Physicians still need to be reimbursed for their work. It is up to individual hospitals and providers to foster a favorable working relationship for both parties caught in the confusion.

Notes

1. Karen Sandrick, "In Brief," Trustee 60 (2007): 0-4.

2. Andis Robeznieks, "Docs on the Do-Not-Call List," Modern Healthcare 37 (2007): 26-29.

3. Ballard, D.; Derlet, R., Rich, B., & Lowe, R., "EMTALA, two decades later: a descriptive review of fiscal year 2000 violations," American Journal of Emergency Medicine 24 (2006): 197-205.

4. Nathan Hershey, "EMTALA On-Call Coverage Rule," Hospital Law Newsletter21 (2003): 1-6.

5. Karen Sandrick, "In Brief," Trustee 60 (2007): 0-4.

6. Lowell C. Brown, "Call Panels and the EMTALA Final Rule: What's Next for Providers?," Journal of Health Care Compliance 6 (2004): 14-17.

7. Andis Robeznieks, "Docs on the Do-Not-Call List," Modern Healthcare 37 (2007): 26-29.

8. Ibid.