Tag A-2404/C-2404
§489.20(r)(2)

(1) Each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of the hospital's patients who are receiving services required under this section in accordance with the resources available to the hospital, including the availability of on-call physicians.

CAUTION:  While the hospital may configure its call structure as it deems adequate, CMS may disregard the hospital's determination and issue a citation for violation based on its determination that the system did not meet EMTALA requirements,  was not adequate to meet the needs of the community, was not applied correctly,  or was not enforced appropriately.

Interpretive Guidelines: §489.24(j)(1)

Hospitals have the ultimate responsibility for ensuring adequate on-call coverage. Hospitals participating in the Medicare Program must maintain a list of physicians on-call for duty after the initial examination to provide treatment necessary to stabilize an individual with an EMC. Hospitals have an EMTALA obligation to provide on-call coverage for patients in need of specialized treatment if the hospital has the capacity to treat the individual.

No physician is required to be on-call at all times. On-call coverage should be provided for within reason depending upon the number of physicians in a specialty. A determination about whether a hospital is in compliance with these regulations must be based on the facts in each individual case. The surveyor will consider all relevant factors including the number of physicians on staff, the number of physicians in a particular specialty, other demands on these physicians, the frequency with which the hospital’s patients typically require services of on-call physicians, vacations, conferences, days off and the provisions the hospital has made for situations in which a physician in the specialty is not available or the on-call physician is unable to respond.

If a staff physician is on-call to provide emergency services or to consult with an emergency room physician in the area of his or her expertise, that physician would be considered to be available at the hospital. A determination as to whether the on-call physician must physically assess the patient in the emergency department is the decision of the treating emergency physician. His or her ability and medical knowledge of managing that particular medical condition will determine whether the on-call physician must come to the emergency department.

When a physician is on-call for the hospital and seeing patients with scheduled appointments in his private office, it is generally not acceptable to refer emergency cases to his or her office for examination and treatment of an EMC. The physician must come to the hospital to examine the individual if requested by the treating emergency physician. If, however, if it is medically appropriate to do so, the treating emergency physician may send an individual needing the services of the on-call physician to the physician’s office if it is part of a hospital-owned facility (department of the hospital sharing the same Medicare provider number as the hospital) and on the hospital campus.

In determining if a hospital has appropriately moved an individual from the hospital to the on-call physician’s office, surveyors may consider whether (1) all persons with the same medical condition are moved in such circumstances, regardless of their ability to pay for treatment; (2) there is bona fide medical reason to move the patient; and (3) appropriate medical personnel accompany the patient.

If a physician who is on-call does not come to the hospital when called, but rather repeatedly or typically directs the patient to be transferred to another hospital where the physician can treat the individual, the physician may have violated EMTALA. Surveyors are to assess all facts of the case prior to making a recommendation to the RO as to whether the physician violated EMTALA. Surveyors are to consider the individual needs and the physician circumstances, which may have an impact upon the case. Each case is to be viewed on its own merit and specific facts.

For physicians taking call simultaneously at more than one hospital, the hospitals must have policies and procedures to follow when the on-call physician is not available to respond because he has been called to the other hospital to evaluate an individual. Hospital policies may include, but are not limited to, procedures for back up on-call physicians, or the implementation of an appropriate EMTALA transfer according to 42 CFR §489.24(e). The policies and procedures a hospital adopts to meet its EMTALA obligation is at the hospital’s discretion, as long as they meet the needs of the individuals who present for emergency care taking into account the capability of the hospital and the availability of on-call physicians.

The decision as to whether the on-call physician responds in person or directs a non- physician practitioner (physician assistant, nurse practitioner, orthopedic tech) as his or her representative to present to the dedicated ED is made by the responsible on-call physician, based on the individual’s medical need and the capabilities of the hospital and applicable State scope of practice laws, hospital bylaws, and rules and regulations. The on-call physician is ultimately responsible for the individual regardless of who responds to the call. In the event that the treating physician disagrees with the on-call physician’s decision to send a representative and requests the appearance of the on-call physician, then both the hospital and an on-call physician who fails or refuses to appear in a reasonable period of time may be subject to sanctions for violation of the EMTALA statutory requirements.

There is no EMTALA prohibition against the treating physician consulting on a case with another physician, who may or may not be on the hospital's or CAH's on-call list, by telephone, video conferencing, transmission of test results, or any other means of communication. CMS is aware that it is increasingly common for hospitals/CAHs to use telecommunications to exchange imaging studies, laboratory results, EKG's, real-time audio and video images of patients, and/or other clinical information with a consulting physician not on the hospital/CAH premises. Such practices may contribute to improved patient safety and efficiency of care. In some cases it may be understood by the hospitals/CAHs and physicians who establish such remote consulting arrangements thatthe physician consultant is not available for an in-person assessment of the individual at the treating physician's hospital/CAH.

However, if a physician:
●    is on a hospital's or CAH's on-call list; and
●    has been requested by the treating physician to appear at the hospital; and
●    fails or refuses to appear within a reasonable period of time,
then the hospital and the on-call physician may be subject to sanctions for violation of the EMTALA statutory requirements.
It is only when the treating physician requests an in-person appearance by the on-call physician that a failure by the latter to appear in person may constitute an EMTALA violation.

It is an entirely separate issue, outside the scope of EMTALA enforcement, whether or not insurers or other third party payers, including Medicare, will provide reimbursement to physicians who provide remote consultation services. Hospitals and/or physicians interested in Medicare reimbursement policy for telemedicine or telehealth services should consult Medicare Benefit Policy Manual, Pub. 100-2, Chapter 18, §270.)

Physicians that refuse to be included on a hospital’s on-call list but take calls selectively for patients with whom they or a colleague at the hospital have established a doctor- patient relationship while at the same time refusing to see other patients (including those individuals whose ability to pay is questionable) may violate EMTALA. If a hospital permits physicians to selectively take call while the hospital’s coverage for that particular service is not adequate, the hospital would be in violation of its EMTALA obligation by encouraging disparate treatment.

If a physician on-call does not fulfill his obligation to the hospital, but the hospital arranges for another staff physician in that specialty to assess the individual, and no other EMTALA requirements are violated, then the hospital may not be in violation of the regulation. However, in this circumstance, the physician who has agreed to take call and does not come to the hospital when called may have violated the regulation.

CMS allows hospitals flexibility in the utilization of their medical personnel. Allowing exemptions to medical staff members (senior physicians) would not by itself violate EMTALA.

Surveyors are to review the hospital policies or medical staff bylaws with respect to response time of the on-call physician. If a physician on the list is called by the hospital to provide emergency screening or treatment and either refuses or fails to arrive within the response time established by hospital policies or medical staff bylaws, the hospital and that physician may be in violation of EMTALA. Hospitals are responsible for ensuring that on-call physicians respond within a reasonable period of time. The expected response time should be stated in minutes in the hospitals policies. Terms such as “reasonable” or “prompt” are not enforceable by the hospital and therefore inappropriate in defining physician’s response time. Note the time of notification and the response (or transfer) time.

(2) The hospital must have written policies and procedures in place—

(i) 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

Interpretive Guidelines: §489.24(j)(2)(i)

The medical staff by-laws or policies and procedures must define the responsibility of the on-call physicians to respond, examine and treat patients with an EMC.

Physicians, including specialists and subspecialists (e.g., neurologists) are not required to be on-call at all times or required to be on-call in their specialty for emergencies whenever they are visiting their own patients in the hospital. The hospital must have policies and procedures (including back-up call schedules or the implementation of an appropriate EMTALA transfer) to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control. The hospital is ultimately responsible for providing adequate on-call coverage to meet the needs of its patients.

(ii) To provide that emergency services are available to meet the needs of patients with emergency medical conditions if it elects to permit on-call physicians to schedule elective surgery during the time that they are on-call or to permit on-call physicians to have simultaneous on-call duties.

Interpretive Guidelines: §489.24(j)(2)(ii)

Physicians are not prohibited from performing surgery while on-call. The only exception applies to Critical Access Hospital (CAH) staff. On-call physicians who are reimbursed for being on-call at CAHs cannot provide services at any other provider or facility. However, a hospital may have its own internal policy prohibiting elective surgery by on- call physicians to better serve the needs of its patients seeking treatment for a potential emergency medical condition. When a physician has agreed to be on-call at a particular hospital during a particular period of time, but has also scheduled elective surgery during that time, that physician and the hospital should have planned back-up in the event that he/she is called while performing elective surgery and is unable to respond to the situation or the implementation of an appropriate EMTALA transfer according to §489.24(e).

Physicians can be on-call simultaneously at other hospitals to maximize patient access to care.  When the on-call physician is simultaneously on-call  at more than one hospital in the geographic area, all hospitals involved must be aware of the on-call schedule as each hospital independently has an EMTALA obligation. The medical staff by laws or policies and procedures must define the responsibilities of the on-call physicians to respond, examine and treat individuals with emergency medical conditions, and the hospital must have policies and procedures to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control as the hospital is ultimately responsible for providing adequate on-call coverage to meet the needs of its individuals.

Tags: On-Call List, on-call physician