New interpretive guidance from the CMS clarified some confusing issues with the federal patient-antidumping law, but the guidance fails to address vexing loopholes related to on-call physician specialty coverage of emergency room cases, healthcare lawyers said.
The 50-page guidance the CMS issued in May also firmed up some previously unclear requirements under the 1986 Emergency Medical Treatment and Active Labor Act, or EMTALA, and detailed the responsibilities of Medicare-participating hospitals in emergency cases.
"These actually seem to add some teeth to the requirements," said healthcare lawyer Lowell Brown of the Los Angeles office of Foley & Lardner. "And that might help hospitals get physicians to comply. But the law is so fundamentally flawed structurally that there is no way that the government can enforce it to make sense."
The guidance did clarify some aspects of the law. For instance, on-call physicians may not request that patients come to their offices for medical screenings in lieu of ER screening for emergency medical conditions. And while on-call physicians are permitted to use nonphysician practitioners, such as physician assistants or nurse practitioners, they must supervise those providers under the antidumping law.
The guidelines also require hospitals to set policies establishing specific response times for on-call panel members and notes that doctors who refuse to join on-call panels, but only accept calls selectively, such as for their personal patients, could be as liable as the hospitals under the law. The guidance also describes circumstances in which the antidumping law does not apply, such as using emergency rooms for nonemergency procedures, such as immunizations and law enforcement evidence-gathering exams for blood alcohol content and sexually transmitted diseases. The guidelines also define how telemedicine may be used in emergency medical-screening exams and explain hospitals' obligations in EMTALA violation investigations.
Last week, the CMS announced the formation of a technical advisory group to review regulations written under the antidumping law. CMS Administrator Mark McClellan and four hospital representatives will be among the 19 members of the panel, which will meet at least twice per year.
Brown said that while the law compels hospitals to appropriately screen, stabilize or transfer patients seeking emergency medical help, physician on-call obligations are not as clearly defined.
"The law requires hospitals to set up on-call panels, but hospitals only have varying degrees of control over the physicians who practice there, and 98% of the time, it's very little control. That's the fundamental problem," Brown said. "There's an absolute requirement for the hospitals, but nothing in the law, regulations or interpretive guidelines compels doctors to do it."
Brown said if a specialist who is on call does not come in when phoned in an emergency, the only way that doctor is liable for a patient-dumping violation is if that patient requires a transfer to another hospital because of the doctor's failure to respond.
"The new CMS guidance says the doctor might be in viola- tion, which is supposed to scare the doctors into compliance, but the hospital is still left holding the bag," Brown said. "Realistically, the CMS is very limited in what it can impose because the law only gives them limited authority over physicians. It's a dirty little secret of EMTALA."
Lawyer Susan Lapenta of the Pittsburgh law firm Horty, Springer & Mattern said there are few surprises in the new guidance, but she added that hospitals may find some useful tips. Lapenta said the guidelines "reinforce that hospitals should strive to cover their on-call schedule with services available elsewhere in the hospital."
She said the guidelines reiterate that the antidumping law does not apply to hospital inpatients. Lapenta said the guidelines strengthened the requirement of a receiving hospital to report when a transferring hospital has dumped a patient.
"It's always been the law," she pointed out. "But the guidance is very upfront about suggesting that hospitals failing to report patient-dumping may be subject to investigation themselves. In addition, the guidance says that hospitals receiving transferred patients may be in violation of EMTALA if they ask about insurance in advance of accepting the patient. We haven't seen them express anything like this addressing the conditional acceptance of a patient based on insurance."
Lapenta agreed that the on-call coverage question lingers.
"Everyone is struggling with on-call and we were hoping for something more specific," she said.