The EMTALA law renders many common practices among physicians and hospitals illegal, even though the physicians may think that they are prudent medical practices or simply good business. Some may be viewed as harmless oversights by physicians, but may result in substantial violations and fines.. Among these common practices for on-call physicians are:

1. When asked to come in to see an E.D. patient, responding with instructions to admit or to run various testing and that the on-call physician will see the patient at a later time.

EMTALA requires prompt response within a "reasonable" time to be specified by the bylaws. These times are not extended by necessary or prudent testing or by admission. Delays in seeing admitted patients often lead to violations for failure to promptly evaluate or stabilize the patient.

2. When asked to come in to see an E.D. Patient, debating with E.D. physician over the necessity of coming in.

Once the request is made to come in, the duty attaches. In addition, EMTALA places the decision power with the physician with eyes on the patient. Response is not negotiable or debatable.

EMTALA places the decision power with the physician with eyes on the patient. Response is not negotiable or debatable

3. When asked to come in to see an E.D. patient, refusing and suggesting that the patient be seen by another specialty.

The on-call physician must respond to all E.D. requests and an on-call physician’s refusal to come in based on a bona fide belief another specialist would be better suited to the patient’s needs will still be cited.

4. When asked to come in to see an E.D. patient, refusing and ordering the patient transferred to another facility because of severity or scope of condition.

EMTALA requires the requested physician to respond. Phone evaluation is not sufficient if the ED physician asks the specialist to come in to see the patient. If the patient is too serious after specialty evaluation, the duty of effecting the transfer is that of the specialist. If the ED physician only asks for a phone consult, then merely giving a phone consult is not a violation, but should be documented by the ED physician as such. CMS rules highlight phone transfers as special attention areas for potential citation.

5. When asked to come in to see an E.D. patient, declining the patient based on the patient’s apparent needs exceeding the physician’s scope of practice.

EMTALA requires physicians to render care within their privileges, not their scope of usual practice. The physician specialist must come in and justify in writing any transfers and effect the transfer. If beyond the privileges of the physician, CMS expects the physician to come in, evaluate, and arrange transfer if appropriate services are not available.

6. When asked to come in to see an E.D. patient, declining the patient because of the payer plan status or self-pay status.

EMTALA requires services to be rendered regardless of means or ability to pay. Where evaluation or stabilizing care, including surgery, is not complete, EMTALA prohibits seeking advance approval from insurance companies or plans. This rule, however, does not require the payer to make payment for the services.

7. When covering more than one hospital on-call, asking a patient be sent to the hospital where the on-call physician is currently seeing patients instead of going to the patient’s location.

EMTALA requires all care to be rendered in the hospital where the patient presents. The only circumstances where the request to transfer would be valid would be if the needs of the patient could not be met in timely fashion where the patient presented, and the requested transfer would allow more timely intervention for patient safety and response of the on-call physician was not possible (i.e. currently involved in surgery). Thorough documentation would be important.

While the patient has the right to decline the on-call physician, the on-call physician does not have the right under EMTALA to decline the patient.

8. When asked to come in to see an E.D. patient, declining on the basis that the patient was previously discharged from the physician’s practice for non-compliance, prior litigation, or non-payment.

While the patient has the right to decline the on-call physician, the on-call physician does not have the right under EMTALA to decline the patient.

9. When asked to come in to see an E.D. patient, declining on the basis that the specialist physician is "not interested" in a case of that type.

The on-call specialist is required to respond to all patients presenting.

10. When asked to come in to see an E.D. patient or an in-house patient on an emergency consult to rule out an emergency medical condition or provide stabilizing care, declining because the patient is aligned with another neurosurgeon or physician who is unavailable or declined to come in.

On-call obligations are not limited to non-aligned patients. The US Supreme Court, the statute itself, and the leading cases under the Supreme Court’s decisions indicate that the EMTALA requirements regarding medical screening, stabilization, and acceptance of transfer do not depend on the location of the patient within the hospital. Likewise, Medicare Conditions of Participation (CoP’s) would impose appropriate care standards that typically would mandate response.

11. Declining a requested transfer from a hospital without the capability to deal with the patient’s needs when a bed could be made available at the destination hospital where the physician is on-call.

EMTALA requires any hospital with specialized capabilities greater than those of the sending hospital to accept all such patients in transfer, regardless of their means or ability to pay. The on-call physician is deemed to be within the capabilities of the hospital, and therefore, must accept unless there literally is not one more space to put the patient, or some other reason exists, such as non-functional equipment, that makes it impossible to deliver the needed service.

12. When contacted by another hospital seeking transfer of a patient, declining the patient because a specialist at the first hospital is not available or turned down the patient improperly.

As noted above, there is a duty to accept. Where it appears the first hospital’s on-call system or physician may have violated EMTALA by not being available when required for call or refused to take the patient, the receiving hospital is required by EMTALA to report the incident to federal authorities within 72 hours.

13. When contacted by another hospital seeking transfer of a specialty patient, declining the transfer because the destination hospital is not the closest, or the designated center, or is not within the hospital’s indigent care zone under local law.

EMTALA requires that patients be accepted from anywhere within the boundaries of the United States, including Guam and Puerto Rico.

14. Refusing to participate in the call list which then leads to gaps in the list, but expecting to be called for your own patients and for patients of physicians for whom you are covering.

CMS considers this "Selective Call" and specifically directs site reviewers to consider citing any hospital that permits this practice.

15. Refusing to be listed individually on the call list and insisting that only the group or answering service name and number be listed.

CMS requires that individual physician names and direct contact information be available to specifically identify and provide contact information for the individual physician actually on call. Changes in the list must be updated PRIOR to a request for an on-call physician is placed.

16. Listing only your PA or NP on the call roster instead of the on-call physician.

CMS requires a physician name be listed an not any non-physician for the on-call specialty lists. A mid-level provider may not respond in lieu of an on-call physician unless the decision is: case-by-case and not routine; within scope of practice laws; within medical staff privileges; and approved by the ED physician. The on-call physician is held entirely responsible in a mal-practice and EMTALA compliance sense for all actions or failure of actions of the mid-level.

17. Insisting that an admitting physician must request a consult before the on-call has to come in.

CMS requires that the ED physician or qualified medical provider have direct access to the on-call specialist without having to go through an admitting physician.

18. Insisting that calls must come from the ED physician or qualified medical provider when contacted by a nurse or other person on behalf of the ED physician.

The call requesting the on-call physician come into the hospital does not have to be physician to physician. The call may be made by anyone at the direction of or on the behalf of the physician or qualified medical provider.

19. Failing to make a detailed record of the assessment and treatment of the patient when called in.

CMS requires an on-call physician complete a detailed chart entry or report for the visit, and that report must be available to include with documents accompanying the patient in transfer, should transfer become necessary.

20. Not signing the transfer certificate or completing other details of the transfer forms and procedure prior to transfer.

The physician ordering the transfer must sign the transfer certificate immediately prior to the patient’s actual movement from the hospital. The physician ordering the transfer is responsible for the entire compliance of the transfer regardless of whether he or she delegates portions of the process to nurses or other personnel.

This list is not all-inclusive. Many other variations and approaches have resulted in violations and citations under EMTALA. For more information on EMTALA compliance, consult the other entries on the www.medlaw.com website or get information from the EMTALA Field Guide (by Stephen A. Frew JD) at www.EMTALAFieldGuide.com