Hospital payments to physicians for providing emergency department on-call coverage, responding to emergency calls, or providing inpatient care for uninsured persons could potentially violate anti-kickback statutes, according to an HHS inspector generals office advisory opinion.
The advisory opinion, issued Sept. 20 and made public Sept. 27, could complicate hospitals efforts to staff their emergency rooms and serve the uninsured.
The opinion acknowledged that more hospitals are paying physicians for on-call coverage and that HHS is mindful that legitimate reasons exist for such arrangements, such as compliance with the 1986 Emergency Medical Treatment and Active Labor Act or regional scarcity of physicians. (May 28, p. 26.) But it also states that on-call coverage compensation potentially creates considerable risk that physicians may demand such compensation as a condition of doing business at a hospital.
The opinion is likely to garner attention. I wouldnt say its precedent-setting, but it adds to the mix of guidance that is out there with the anti-kickback laws, said Maureen Mudron, the American Hospital Associations Washington counsel. It is meaningful information for hospitals that are thinking about paying for on-call physicians and what they should take into consideration when processing such an arrangement.
The American Medical Association declined to comment.
The opinion was in response to one not-for-profit hospitals request for a legal review of its arrangement, and the name of the facility was deleted from public copies.
Attorney D. Louis Glaser, a partner in the Chicago office of Sonnenschein Nath & Rosenthal, helped structure the arrangement and said the request for an opinion was submitted in May 2005. Because of the lag time, the medical center was able to show the inspector general data demonstrating the merits of the arrangement, including better ER efficiency, fewer patient transfers caused by lack of physicians or specialists and higher patient satisfaction scores.
Although Glaser would not identify the institution, he said it was not a rural facility that was the only hospital for miles around. Its an urban hospital with real problems that many, many hospitals are facing, he said. This hospital looks more like the average hospital than the outlier.
Despite the potential legal risks, the agency cleared the program because the payments to the doctors are based on fair-market value, the program served a real need for on-call coverage and the program is offered to all physicians.