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© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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 To ask a question during the presentation, click the Q&A menu at the top of this window, type your question in the Q&A text box, and then click “Ask.” After you click Ask, the button name will change to “Edit.” Questions will be queued and most will be answered at the end of the meeting as time allows.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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?
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.) Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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 Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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) Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. –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. Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Effect of EMTALA Regulations
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. EMTALA Aspects
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Hospitals must establish response times for on-call physicians, either in the Medical staff by-laws or otherwise in written rules. EMTALA Aspects
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Basic Legal Requirements Applicable to Emergency Departments
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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...”
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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)“Provision shall be made for medical staff coverage at any hour.” D.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)
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. EMTALA Enforcement Failure to Respond when On-Call (Selected Cases) 02-25-2009MD pays fine; charged with failure to respond when called for orthopedic services. 04-30-2007ED 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)
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. EMTALA Enforcement Failure to Respond when On-Call (Selected Cases) 02-17-2006MD pays fine for failure to respond when on- call; female patient in labor was transferred to another hospital. 09-25-2003Hospital pays fine to resolve charges of patient dumping. ED patient has eye injury; on-call ophthalmologist refuses to see patient in ED.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. What Are Hospitals Doing Compensating specialists –OIG Advisory Opinion: 07-10 (September 27, 2007)
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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) What Are Hospitals Doing
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Community Coverage Arrangements
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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. Community Coverage Arrangements
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Specific Arrangements –MD Group serves multiple hospitals –Hospitals agree to transfer arrangements –Telemedicine Community Coverage Arrangements
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. 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.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. Questions?
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED. TOBIN WATT Smith Moore Leatherwood LLP Atlantic Center Plaza 1180 W. Peachtree St. NW Suite 2300 Atlanta, GA 30309-3482 T: (404) 962-1026 F: (404) 962-1200 Tobin.Watt@SmithMooreLaw.com
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