Transcript Title

Specialist Coverage in the ER
EMTALA, Compensation, and Regional Coverage Arrangements
12:00 p.m. March 19, 2009
Presented by:
Tobin Watt
with assistance from
Christee Laster, Jennifer Sender, and Mary Watters
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Introduction
•
Hospitals are encountering increasing difficulty in obtaining
Emergency Room coverage by specialists, especially important
surgical specialists like orthopedic surgeons and neurosurgeons.
The causes are well-known: impact on lifestyle, high risk cases, and
high incidences of low-pay or non-pay patients. This problem is
exacerbated by the fact that numerous smaller communities have
small numbers of these surgeons, or may not have them at all. The
impacts are equally well-known: no coverage by these key
specialists, or limited coverage, and whatever coverage there is is
costly. See “On-Call Specialist Coverage in U.S. Emergency
Departments; ACEP Survey of Emergency Department Directors.”
April, 2006. American College of Emergency Physicians.
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Introduction
• With that background, this presentation will explore three
issues:
A. What is a hospital’s legal obligation to provide
specialty coverage in its ER?
B. What are hospitals doing to obtain that coverage?
C. Should hospitals establish regional arrangements to
share the burden?
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Basic Legal Requirements Applicable
to Emergency Departments
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Basic Legal Requirements Applicable
to Emergency Departments
•
Medicare Conditions of Participation and
Social Security Act Title XVIII, §1861
(Definitions of Services, Institutions, etc.)
•
42 CFR 482 (contains the minimum health
and safety requirements that hospitals must
meet to participate in the Medicare and
Medicaid program.)
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Basic Legal Requirements Applicable
to Emergency Departments
•
Sec. 482.55 Condition of participation: Emergency services.
The hospital must meet the emergency needs of patients in
accordance with acceptable standards of practice.
(a) Standard: Organization and direction. If emergency
services are provided at the hospital—
(1)
The services must be organized under the
direction of a qualified member of the medical staff;
(2)
The services must be integrated with other
departments of the hospital;
(3)
The policies and procedures governing medical
care provided in the emergency service or department
are established by and are a continuing responsibility of
the medical staff.
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Basic Legal Requirements Applicable
to Emergency Departments
•
Sec. 482.55 Condition of participation: Emergency services.
The hospital must meet the emergency needs of patients in
accordance with acceptable standards of practice.
(b) Standard: Personnel.
(1) The emergency services must be supervised by a qualified
member of the medical staff.
(1) There must be adequate medical and nursing personnel
qualified in emergency care to meet the written emergency
procedures and needs anticipated by the facility.
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Basic Legal Requirements Applicable
to Emergency Departments
• EMTALA
42 USC 1395dd (or Section 1867 of the Social Security Act and 42 CFR Parts 411,
412, 413, 422, and 489.)
(j)
Availability of on-call physicians. In accordance with the on-call list
requirements specified in § 489.20(r)(2), a hospital must have
written policies and procedures in place—
(1)
To respond to situations in which a particular specialty is not
available or the on-call physician cannot respond because of
circumstances beyond the physician’s control; and
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Basic Legal Requirements Applicable
to Emergency Departments
• EMTALA
42 USC 1395dd (or Section 1867 of the Social Security Act and 42 CFR
Parts 411, 412, 413, 422, and 489.)
(2)
To provide that emergency services are available
to meet the needs of individuals with emergency medical
conditions if a
hospital elects to—
(i) Permit on-call physicians to schedule elective surgery during the
time that they are on call;
(ii)
Permit on-call physicians to have simultaneous on-call duties; and
(iii)
(deleted)
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Basic Legal Requirements Applicable
to Emergency Departments
– State Operations Manual
• Appendix V – Interpretive Guidelines
Responsibilities of Medicare Participating
Hospitals in Emergency Cases
http://cms.hhs.gov/manuals/Downloads/som107ap_v_emerg.pdf
The State Operations Manual is the guidance from CMS to
state surveyors, with respect to enforcing the Conditions of
Participation and other relevant CMS requirements (like
EMTALA). The discussion of physician coverage in the ER in
the State Operations Manual is more informative than in any
other CMS publication.
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Effect of EMTALA Regulations
• Focus is on patient needs. What services are demanded
at a particular hospital ? Is the hospital in question the
appropriate provider of a service ? The State Operations
Manual specifically mentions the capacity of a hospital to
provide a specific treatment.
• Coverage by physicians is required "within reason"
relative to the number of physicians and the number of
specialists.
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EMTALA Aspects
• Coverage by specialists serving multiple hospitals is
specifically referenced; hospitals must have policies and
procedures in place and transfers must conform with
other EMTALA requirements.
• On-call physicians may at their discretion utilize
physician extenders, assuming hospital by-laws and
state licensure laws permit. On-call physicians may
conduct surgeries while on call
(NOTE: not at CAH facilities), although back-up
procedures must be in place.
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EMTALA Aspects
• Hospitals must establish response times for on-call
physicians, either in the Medical staff by-laws or
otherwise in written rules.
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Basic Legal Requirements Applicable
to Emergency Departments
• JCAHO Standards
Standards PC 01.01.01, PC 01.02.01
and LD 04.02.05
These do not provide meaningful
guidance with regard to operations,
staffing, or physician coverage in the
ER.
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State Law Standards
(Selected for Illustration)
A. Texas - Administration Code, Rule §133.41
(C)(3)(A):
“A hospital . . . shall have emergency equipment, supplies,
medications, and designated personnel assigned for providing
emergency care to patients and visitors.”
(e) “All licensed hospitals locations . . . shall have an emergency
suite . . .”
(e)(2)(c) “ . . . the hospital shall provide that one or more
physicians shall be available at all times for emergencies . . .”
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State Law Standards
(Selected for Illustration)
B.
Virginia
12 VAC Section 5-410-280
A. “Hospitals with an emergency department/service shall have 24-hour staff coverage
and shall have at least one physician on call at all times . . .”
C.
Colorado 6 CCR 1011-1
Chapter II, Part 1
13.101(4)
D.
“Provision shall be made for medical staff coverage at any hour.”
North Carolina Admin Code Title 10A. Chapter 13, Subchapter 13P
The North Carolina requirements are unusually detailed and specific, with specific M.D.
coverage standards for Level I, II, and III trauma centers. For example, a Level II facility must
have an emergency physician present in the ED 24 hours per day, and neurosurgeons,
orthopedists, and anesthesiologists on call (the regulations specify alternatives for the
neurosurgeons and orthopedist). Section 0902(8)
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EMTALA Enforcement
• Failure to Respond when On-Call (Selected Cases)
02-25-2009
MD pays fine; charged with failure to
respond when called for orthopedic
services.
04-30-2007
ED patient with acute neurological
condition; on-call neurosurgeon, in
hospital, refused to respond. Hospital
fined for failure to provide stabilizing
treatment before transfer initiated.
11-29-2007
(Same as above)
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EMTALA Enforcement
• Failure to Respond when On-Call (Selected Cases)
02-17-2006
MD pays fine for failure to respond when oncall; female patient in labor was transferred to
another hospital.
09-25-2003
Hospital pays fine to resolve charges of
patient dumping. ED patient has eye injury;
on-call ophthalmologist refuses to see patient
in ED.
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What Are Hospitals Doing
• Compensating
specialists
– OIG Advisory
Opinion: 07-10
(September 27,
2007)
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What Are Hospitals Doing
• Methodologies of Compensation
• Survey results
*SCHA-virtually all hospitals paying for orthopedic and
neurosurgery coverage. All pay on a per diem basis.
*Our internal survey-virtually all hospitals are paying for
orthopedic and neurosurgery coverage. One system pays on
reimbursement replacement methodology, the majority pay for
coverage on a per diem basis.
• Standard Per diem pay: $1,000/day. Increasing to $2,000 for
neurosurgeons?
• “Reimbursement replacement” methodology; guarantee
compensation to an agreed level (Medicaid, Medicare, or Managed
Care Blend)
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Compensating Specialist Physicians
Stark Considerations
• Compensation for coverage is permissible under Stark Regulations,
as compensation for personal services, 42 CFR §411.357(d).
• The arrangement must be set forth in a formal written contract,
having a term of at least one year, specifying the service (i.e. the
coverage schedule) and the compensation.
• The compensation methodologies mentioned above (per diem or
reimbursement replacement) are permissible under the Stark
regulations.
Note:
Financial arrangements between hospitals and physicians are
governed by other requirements, including the Anti-Kickback
Statute and the federal tax-exemption requirements.
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Community Arrangements for Specialty Coverage
• CMS (TAG) 10/1/08
– The Medicare Prescription Improvement and
Modernization Act of 2003 mandated study of ED
services by a Technical Advisory Group. The
resulting TAG studied ED issues and reported out 55
recommendations in 2007. The TAG
recommendations were addressed in the 2009 IPPS
fee schedule, dated 10/1/08.
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Primary TAG Recommendations
•
The treating emergency physician determines whether an on-call specialist
must come to the ER or may consult by telephone.
Recommendation implemented, in the State Operations Manual.
•
Technical documentation change, shifting the requirement to maintain an
on-call list to the Provider Agreement.
Recommendation Implemented.
•
Recommendation that each hospital and its medical staff jointly prepare an
annual written plan for ER coverage.
Recommendation deferred.
•
Community/shared call
(discussed below)
Recommendation Implemented, by additions to the EMTALA
regulations.
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Community Coverage Arrangements; EMTALA
Provisions
The formal community plan must include the following elements:
(A)
A clear delineation of on-call coverage responsibilities; that is,
when each hospital participating in the plan is responsible for
on-call coverage.
(B)
A description of the specific geographic area to which the plan
applies.
(C)
A signature by an appropriate representative of each hospital
participating in the plan.
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Community Coverage Arrangements; EMTALA
Provisions
The formal community plan must include the following elements:
(D)
Assurances that any local and regional EMS system protocol
formally includes information on community on-call
arrangements.
(E)
A statement specifying that even if an individual arrives at a
hospital that is not designated as the on-call hospital, that
hospital still has an obligation under § 489.24 to provide a
medical screening examination and stabilizing treatment within
its capability, and that hospitals participating in the community
call plan must abide by the regulations under § 489.24
governing appropriate transfers.
(F)
An annual assessment of the community call plan by the
participating hospitals.
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Community Coverage Arrangements
• Medical Staff Privilege Aspects
• JCAHO Requirements:
1.
MDs must have staff privileges, granted via the
appropriate process, if they are to provide
patient services at the hospital. The hospital is
required to collect information supporting
privileges. MS 03.01.01, MS 03.01.03,
and MS 06.01.03.
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Community Coverage Arrangements
• Medical Staff Privilege Aspects
• JCAHO Requirements:
2.
Special arrangements for telemedicine.
Physicians must have privileges at the
originating hospital, but the originating hospital
may rely on credentialing information from the
distant hospital. MS 13.01.01.
• MDs must have staff privileges if they are to provide services.
• Multiple privileges required if MDs serve multiple hospitals.
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Community Coverage Arrangements
• Specific
Arrangements
– MD Group serves
multiple hospitals
– Hospitals agree to
transfer
arrangements
– Telemedicine
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CONCLUSIONS
A.
Generally speaking, hospitals are provided with little guidance from state law, federal law, and
JCAHO standards regarding coverage by specialist physicians in the ER. CMS’ State Operations
Manual provides some useful guidance and should be read carefully. A few states have
established some requirements (NC being one of those few). Hospitals must decide for
themselves the level of specialist coverage that they need, based on patient demand and
physician availability. The EMTALA enforcement actions indicate that the OIG will fine physicians
and hospitals for instances of failure to respond when on-call obligations exist. There are no
reported enforcement actions addressing the level of on-call coverage a hospital has established.
B.
Paying key specialists (such as orthopedic surgeons and neurosurgeons) for coverage has
become commonplace. The most frequent methodology of payment is per diem. OIG Advisory
Opinion 07-10 indicates that the OIG is well aware of coverage pay arrangements and finds that
reasonable compensation to the physicians is acceptable. Coverage pay arrangements must be
included in contracts that meet the Stark regulation requirements.
C.
CMS has sent a strong signal, virtually a request, to hospitals to establish community or regional
coverage arrangements, to help address the shortage of key specialists. Telemedicene may be
a component. Community coverage arrangements must be incorporated in a formal contract
structure.
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Questions?
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TOBIN WATT
Smith Moore Leatherwood LLP
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