At Your Defense: Why ED Call Panels Die Under EMTALA

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000515683.22176.05
At Your Defense

Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital in Thousand Oaks, CA. He is also a clinical professor in emergency medicine and pediatrics at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer Mainieri, LLP, in Oxnard, CA, and the founder and CEO of Health-e-MedRecord, a patient-centered and emergency physician-designed EHR solution. (www.health-e-medrecord.com.) Follow him on Twitter @carloreyesmdjd, and read his past articles at http://bit.ly/EMN-Defense.

Article Outline

I hear it every time I call in a consultant. “I didn't sign up for this. I'm not on call for the whole county!” So begins the slow death of our trusted friends: the ED call panel.

This is no insignificant loss. How do you have a trauma service without a call panel? A stroke service? A STEMI call panel? These are the lifelines of a community in an emergency. The whole community's medical services suffer.

The ED call panel was once viewed by consultants as a duty to the community. It was a means to grow a budding practice for new residency graduates. Adding a “new service line” brought about new possibilities for hospitals: sophisticated diagnostics and treatment, uniquely trained subspecialists, a higher level of care that can generate new revenue. Of course, the presence of specialized consultants elevates the medical standard throughout the hospital and benefits patients. Better door-to-balloon times and improved outcomes for stroke and trauma are measurable levels of success that hospitals use to promote themselves for deeper penetration into the health care market.

But the devil is in the details.

The overarching influence of EMTALA on hospital and physician behavior is unquestioned. Despite a low annual rate of about 20 hospital penalties and 1.5 physician penalties reported by the Office of Inspector General, hospitals and physicians still fear EMTALA because of the risk of losing the hospital's CMS agreement and physicians' participation in Medicare. (Office of Inspector General, 2017; http://bit.ly/2lmaWvD.)

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The Hot Potato

A study by Terp, et al., found citations against 1498 (27%) of the 5594 hospitals subject to CMS scrutiny under EMTALA, and 12 (0.21%) terminated CMS hospital provider agreements, nine of which resulted in facility closure. (Ann Emerg Med 2017;69[2]:155.) Sixteen percent of these EMTALA citations were attributed to deficiencies related to receiving hospital responsibilities. The number of citations decreased each year, but the number of clinical citations involving failure to provide a medical screening exam or stabilizing treatment prior to transfer increased. We should anticipate continued scrutiny of the clinical aspects of the transfer process for receiving and accepting hospitals. But ED panel consultants are still leaving even where the risk of EMTALA violation is low.

Marketing of successful hospital service lines has tilted the risk-benefit analysis of ED call panel participation toward higher risk to increase hospital revenue from these shiny new service lines. These hospitals are fielding more calls for higher level of care, and are obligated under EMTALA to accept them. EPs and panel consultants experience increased medical-legal exposure when a hospital receives more transfer requests, sometimes from hospitals 50-100 miles away. As transfer time increases, the chances of a bad outcome increase, and the receiving EP and consultant are caught carrying the medical-legal hot potato. A consultant and hospital may be found in violation of EMTALA and incur civil penalties up to $50,000 for refusing a transfer that seems inappropriate.

When comparing the risk for an EMTALA violation (one to two physicians a year nationally) with the 7.4 percent annual incidence of physician malpractice (7.6% for EPs) (N Engl J Med 2011;365[7]:629), and in light of the likelihood of low reimbursement for physician services provided, the unattractive options remaining for an EP and consultant are to accept a patient transfer with high medical-legal risk and low reimbursement, refuse a patient transfer that places the hospital and physician at risk of EMTALA violation and civil monetary penalties, or decline participating in the call panel because the stipend may not be worth the potential loss.

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Is it Worth it?

The ED call panel dilemma is not new. The California Healthcare Foundation found a substantial decline in 10 of 16 specialties willing to take ED call between 2003 and 2006. (http://bit.ly/2m0SRjB.) More than 80 percent of hospital executives surveyed also cited the call panel shortage as one of their top 10 business challenges.

Call panel stipends have been used to attract consultants, but are likely unsustainable because of the susceptibility to cost escalation, the hospital executives said. Newer alternatives to call panel include telemedicine, advanced practice providers as initial panel responders, regional transfer centers and agreements, and innovative payment systems. The stability of call panels will ultimately come down to whether participating is worth it.

EMTALA arose from good intentions to deter hospitals from dumping patients and ignoring their duty to treat, but its enforcement resulted in a federal mandate for delivering uncompensated care in the ED, the most expensive in our health care system. We must evaluate EMTALA, especially with the political uncertainty of the Affordable Care Act. It threatens call panels, and should be our focus in improving access to lifesaving care.

We need EMTALA reform led by informed EPs and legislators to ensure that sufficient state and federal funds are used to reimburse hospitals and physicians appropriately, that liability reform reduces the risk for consultants in call panels, that cost-saving collaborations among physician groups and hospitals protect them from antitrust allegations, and that measures ensure the prompt payment from payers for medically necessary treatment in the ED.

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