4. Proposed Changes to the EMTALA Physician On-Call Requirements -- Relocation of Regulatory Provisions -- excerpted from Federal Register April 30, 2008.

    During its term, the EMTALA TAG dedicated a significant portion of its discussion to a hospital's physician on-call obligations under EMTALA and made several recommendations to the Secretary regarding physician on-call requirements that are included in its final report (will be available shortly at the Web site: http://www.cms.hhs/gov/FACA/07_emtalatag.asp <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cms.hhs/gov/FACA/07_emtalatag.asp>).

The TAG recommended that CMS move the regulation discussing the obligation to maintain an on-call list from the EMTALA regulations at Sec.  489.24(j)(1) to the regulations implementing provider agreements at Sec.  489.20(r)(2). We agree with the TAG's recommendation. The requirement to maintain an on-call list is found at section 1866(a)(1)(I)(iii) of the Act, the section of the Act that refers to provider agreements. Section 1867 of the Act, which outlines the EMTALA requirements, makes no mention of the requirement to maintain an on-call list.

    To implement the EMTALA TAG's recommendation, we are proposing to delete the provision relating to maintaining a list of on-call physicians from Sec.  489.24(j)(1). We note that a provision for an on-call physician list is already included in the regulations as a hospital provider agreement requirement at Sec.  489.20(r)(2). We are proposing to incorporate the language of Sec.  489.24(j)(1) as replacement language for the existing Sec.  489.20(r)(2) and amend the regulatory language to make it more consistent with the statutory language found at section 1866(a)(1)(I)(iii) of the Act. Proposed revised Sec.  489.20(r)(2) would read:

``An on-call list of physicians on its medical staff available to provide treatment necessary after the initial examination to stabilize individuals with emergency medical conditions who are receiving services required under Sec.  489.24 in accordance with the resources available to the hospital; and''.

These proposed changes would make the regulations consistent with the statutory basis for maintaining an on-call list.

    The EMTALA TAG made additional recommendations regarding how a hospital would satisfy its on-call list obligations, including calling for an annual plan by the hospital and medical staff for on-call coverage that would include an assessment of factors such as the hospital's capabilities and services, community need for emergency department services as indicated by emergency department visits, emergent transfers, physician resources, and past performance of previous on-call plans. The TAG also recommended that a hospital have a backup plan for viable patient care options when an on-call physician is not available, including such factors as telemedicine, other staff physicians, transfer agreements, and regional or community call arrangements. While community call arrangements are discussed below, we intend to address the remainder of the TAG recommendations at a later date.