The 1986 Emergency Medical Treatment and Active Labor Act, or EMTALA, mandated that hospitals offering emergency services must ensure that all patients receive equivalent care, regardless of their ability to pay. Under EMTALA, hospital emergency departments are required to maintain a list of on-call physicians able to respond to requests for specialty care, also regardless of the patient’s insurance status or ability to pay.
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June 2006‘Hospitals will have to decide, if they’re going to provide ER service, that they have to pay a per diem for the people to do that.’
Often called the “anti-dumping” law, EMTALA was enacted to provide a safety net for uninsured and underinsured patients in the United States (Ann Emerg Med. 2001; 37(5):495–499). However, 20 years after its enactment, that safety net is in danger of unraveling due to many factors (Am J Emerg Med. 2004; 22(7):575–581). For instance, many specialists and subspecialists, who in the past used emergency department call as one way to build a practice, are now refusing to participate in call panels.
To delineate factors contributing to what many are calling an emergency department on-call crisis, and to explore possible solutions to the complex problem, ENToday consulted otolaryngologists, a plastic surgeon, a hospital administrator, and an emergency room physician for their views.
A Losing Proposition for Specialists
A fundamental weakness of EMTALA, most stakeholders agree, is that its mandate did not include provisions for funding on-call services. And there’s the rub: most specialists and subspecialists now find that participating in emergency department call panels has become a losing proposition. Reimbursements can be abysmally low, and exposure to liability high.
Specialists and private practice physicians “have every incentive not to take emergency call,” said John D. Donaldson, MD, a pediatric otolaryngologist, member of the board of directors of Lee Memorial Hospital in Fort Myers, Fla, and a vice president of the Florida Pediatric Society. “Here, in Lee County, 26.4% of the population is uninsured or underinsured yet employed, so they don’t quality for Medicaid. Many of the uninsured patients have no intention of paying the bill when they get to the emergency room, and that represents exceedingly poor reimbursement for a physician’s time,” he said.
In addition to low Medicare and Medicaid reimbursement rates, Florida is a state that “has yet to grapple with the problem of ambulance-chasers,” added Dr. Donaldson. “When a physician attends in an emergency room, you are dealing with patients with whom you’ve not established a relationship,” so the risk of malpractice litigation is higher. This has been borne out in studies of malpractice litigation emanating from emergency room (ER) cases, such as the one detailed in the 2005 Issue Brief by the California HealthCare Foundation entitled “On-Call Physicians at California Emergency Departments: Problems and Potential Solutions.” ER cases, due to the high incidence of trauma, also have a higher rate of bad outcomes.
“There’s nothing worse than taking call and looking after a patient at a hospital, and then having them transferred to their Kaiser Permanente doctor who was not on call that night.” – Steven P. Davison, MD, DDS
No Dollars for Private Practice Physicians
Even though emergency rooms are overburdened by uninsured patients, hospitals receive subsidies which do not extend to individual physicians and subspecialists, pointed out Steven P. Davison, MD, DDS, Assistant Professor of Plastic Surgery at Georgetown University Hospital in Washington, DC. “The hospitals have an avenue for funding,” said Dr. Davison. “Portions of Medicaid or indemnity from car insurance are virtually—sucked up’ by the hospital in the first 24 hours. But none of that trickles down to the private practice, or fee for service, physicians.”
“For hospitals,” continued Dr. Davison, “the emergency room is becoming and bigger and bigger archway for a source of admissions [and income]. They do get paid [for patients in the ER]—not much, often—and they have an avenue for funding. If they didn’t, they’d shut their ERs.”
What hospitals do to maintain their ER certification, said Dr. Davison, is to hire physicians who “do the bulk of the heavy lifting” for ER coverage: trauma surgeons, intensivists, and orthopedists are often on staff. But hospitals are paying less and less for the incidental coverage they are also required to offer: otolaryngology–head and neck surgery, plastic surgery, ophthalmology, and oral surgery, for instance. Depending on the hospital and the region, some may demand that these subspecialists take call in return for retaining hospital privileges, a situation Dr. Davison calls a restriction of trade.
“At our hospital, it’s not a practicebuilder for ENTs to take ER call. We see a lot of abscesses, bleeding, and facial trauma in our ER, but not your bread-and-butter sinus and ear cases.” – Mary Talley Bowden, MD
Norman J. Harris, MD, an otolaryngologist–head and neck surgeon in private practice in Fullerton, Calif., agrees with this analysis. “The drive [for hospitals] to keep people on call is no longer a function of need in the community,” he said. “It’s a function of certification to be a paramedic receiving station, which gives them access to various kinds of income for indigent patients. But that [income] does not get passed through to physicians.”
Spiraling Downward
The managed care environment, especially in states such as California, has compounded the problem. Patients in managed care plans who go to the emergency room and are seen by an on-call specialist will most likely be transferred to an in-plan physician for follow-up care. Furthermore, the insurance company may often contest the on-call specialist’s billing for his or her services.
“Physicians are angered by providing emergency care to insured patients whose insurance coverages deny payment for mandated care,” said Dr. Harris, who is also chair of the Medical Staff Quality Assurance Committee at a large community hospital in Fullerton, Calif. “Insurance arrangements compelling patients to return to designated providers for follow up, regardless of the quality of care they’ve received, make emergency room call frustrating.
“Once upon a time, it was worth it to you to be on call. That’s the way you built your practice. And there’s still that fantasy around. As a matter of fact, I can remember being kept off call by my competitors. But the whole world turned around over the last 15 years, and nobody even realized it.”
“There’s nothing worse than taking call and looking after a patient at a hospital, and then having them transferred to their Kaiser Permanente doctor who was not on call that night,” said Dr. Davison. “That just annoys the living daylights out of me!”
A study Dr. Davison published in Plastic and Reconstructive Surgery in 2004 highlighted this problem (114(2):453–457). Reviewing a total of 300 patient visits during a 30-month period of ER coverage at three hospitals (an inner-city tertiary care center, an urban university hospital, and a suburban tertiary care center), Dr. Davison found some unexpected results. The inner-city hospital did have the highest percentage of uninsured patients (67%), but it was the suburban tertiary hospital where the lowest rate of reimbursement was seen, despite the percentage of uninsured patients (50%) being lower than that of the inner-city hospital.
Opting Out
The solution for many otolaryngologists–head and neck surgeons is simply to stop taking call. Although he took emergency calls earlier in his career, Dr. Harris has not done so for several years. Echoing the results of Dr. Davison’s study on reimbursement rates, Dr. Harris noted that his reasons had less to do with treating uninsured patients than treating those with insurance coverage. “You have to go through this hassle and people accuse you of ripping them off.”
He recalls one incident almost 15 years ago, when he responded to a 3 AM call to stop an 80 year old patient’s nosebleed. The man, on a fixed income, asked whether Dr. Harris would accept what Medicare allowed for the consultation. Dr. Harris agreed, but secured the patient’s promise that if the amount was low that the patient would appeal the bill. The explanation of benefits allowed a $3 payment on a $150 bill. After an appeal, Dr. Harris eventually was granted a hearing with the Medicare examiner. Taking half a day off, he appeared and contested the low payment. “I won the case,” he said grimly. “I got nine bucks: that’s what happens when you win with these people.”
Mary Talley Bowden, MD, an otolaryngologist–head and neck surgeon at Memorial Northwest Otolaryngology, a practice affiliated with Memorial Hermann Northwest Hospital in Houston, Tex., said her group has taken themselves off the ER call schedule. Their reasons were similar to those revealed in surveys across the United States. “At our hospital,” she explained, “it’s not a practice-builder for ENTs to take ER call. We see a lot of abscesses, bleeding, and facial trauma in our ER, but not your bread-and-butter sinus and ear cases. The types of cases we typically see are more conducive for training than for private practice.”
The affiliated hospital offered to pay Memorial Northwest Otolaryngology Medicaid reimbursement rates for uninsured patients seen in the ER. However, the hospital stipulated that patients would first have to apply for Medicaid. If coverage was denied, the hospital would reimburse the practice for the consultation. “But that would literally be four to six months after seeing the patient, and then it would be Medicaid rates,” Dr. Bowden pointed out. “We didn’t think that was worth it.”
‘Who wants to treat somebody who’s gotten nailed by a train? Because, frankly, you’re going to get paid more money if you work for the railway and you re-paint the train—without the liability.‘
Another disincentive was the higher liability risk of seeing patients in the ER, especially if they are uninsured, said Dr. Bowden. So far, Dr. Bowden has not seen any negative ramifications of taking herself off the on-call panel. She has privileges at five local hospitals, and still continues to do procedures at Memorial Hermann Northwest.
Inefficient at Best
Despite their removal from the hospital’s ER call panel, Dr. Bowden reports that she and her colleagues sometimes still get “roped into” taking ER call, as a primary care physician may admit an ER patient at the ER physician’s request and then call for an otolaryngology consult. “It’s a little better in that we aren’t required to leave our clinic to run over to the emergency room to stabilize patients,” she noted. But this practice can sometimes result in inappropriate hospital admissions, she said.
“As an emergency physician, I wish on some nights that taking call were a mandatory part of licensure for all specialists, but then, of course there would be other problems associated with that solution.” – Benjamin D. Vanlandingham, MD
Benjamin D. Vanlandingham, MD, Director of the Department of Emergency Medicine at St. Joseph Medical Center, a community hospital in Baltimore, Md., and a healthcare services researcher, has observed firsthand the inefficiencies of a fraying on-call coverage system. With no otolaryngologists on staff at St. Joseph Medical Center, Dr. Vanlandingham occasionally does require backup from an otolaryngologist. “Often, that backup could be care delivered in a delayed time frame, either in the office or at least with enough time to transfer to another hospital.”
What Dr. Vanlandingham finds frustrating is when an otolaryngologist refuses to take call about an urgent situation, such as a patient with a posterior nosebleed. He must then transfer that patient to another hospital’s emergency room, where the patient may often wait another three to four hours for the specialist to be called. “Besides the inefficiencies, my main concern is patient safety,” he said. “As an emergency physician, I wish on some nights that taking call were a mandatory part of licensure for all specialists, but then, of course there would be other problems associated with that solution.”
Variances among Regions
Although EMTALA is a federal statute, its consequences are felt in widely different ways according to state and local economics. For instance, in California, mandated (and also unfunded) seismic retrofitting weighs heavily on hospital budgets. In Florida, said Dr. Donaldson, hospitals cannot, by state law, opt out of providing emergency services—and yet, Medicare and Medicaid reimbursement rates are low.
“The first issue I see in San Luis Obispo County,” said Candy Markwith, CEO of Sierra Vista Regional Medical Center, a Tenet Healthcare–owned hospital in San Luis Obispo, Calif., “is the lack of physicians in general. Being on rural reimbursement rates,” she said, “presents a challenge to us in our ability to recruit physicians to our area.” That challenge is exacerbated in a locale with high housing prices (the county is a central California tourist destination), and by the fact that physicians coming out of school have very large student loans—with choices of employment all across the country. “In a county our size [total population, approximately 300,000], with four hospitals, it is very difficult for some of the subspecialists to be available 24 hours, all the time,” she said.
A Path to Solutions?
Suggestions about solutions to the on-call coverage crisis often align with the stakeholder group suggesting them. Hospitals would like to see more funding; physicians would like to see more and higher stipends; and patients want to ensure that they will receive appropriate care in emergencies.
Dr. Harris believes that hospitals’ difficulties in maintaining call panels to comply with EMTALA are a direct result of the industry’s own actions. Dr. Harris noted that prior to the mid 1980s, “a covert contract was in place between the hospital and the medical staff. In return for complying with the written portion of the contract requiring physicians to cover the emergency room, the hospital honored the unwritten portion: physicians’ access to the prime arena for networking with referral sources and building a practice.
“The hospital industry participation in managed care contracting has breached the unwritten part of the contract,” he said, “relentlessly sapping medical staff leadership’s ability to motivate members of the staff to cover the emergency room.” As chief of staff at another smaller community hospital in Orange County, Dr. Harris grapples with the situation from a leader’s standpoint. Although otolaryngology emergencies generally get covered, he said, “it’s pretty tenuous. We’re at the mercy of our colleagues’ goodwill. One of the problems is that we cannot make taking call mandatory because we’ll lose all the ENT physicians. If you go to mandatory call, then people resign from your staff. So that is no solution. And since you do not have the original incentive [opportunities for building a practice], you will have to incentivize taking call with money.”
“I think they [hospitals] should pay all physicians per diem to take call,” agreed Dr. Bowden. “Our hospital pays some specialists a per diem rate, but not others. So, for instance, general surgeons get paid per diem to cover trauma call. But I’ve received many calls for consults from the general surgeons who are getting paid to see these patients with, say, penetrating neck trauma. General surgery is getting reimbursed by the hospital to see that patient, but we’re not. They need to either pay everybody or pay no one, but they’ll probably have to pay everybody.”
“Being on rural reimbursement rates presents a challenge to us in our ability to recruit physicians to our area—it is very difficult for some of the subspecialists to be available 24 hours, all the time.” – Candy Markwith
Making Do with the System
Ms. Markwith is hopeful about an upcoming ballot initiative in California to earmark a portion of the additional $2 billion in Tobacco Tax Act revenues specifically for emergency room physicians. In the meantime, though, Sierra Vista Regional Medical Center has proceeded with a number of initiatives to address the ER shortages and continue uninterrupted care for patients. “First and foremost, we have an exceptionally talented emergency room physician group, with a depth of education and experience base, who can evaluate whether specialists are needed.”
In addition, she said, the hospital is involved with a hospitalist program to take the burden off busy internal medicine and family practice practitioners. They also have the sole dedicated pediatric hospitalist group in the county, freeing up busy pediatricians in the community while allowing timely admittance for those patients whose conditions warrant hospitalization. Finally, Sierra Vista does offer stipends to physicians who provide services not supplied by hospital staff.
“Hospitals will have to decide, if they’re going to provide ER service, that they have to pay a per diem for the people to do that,” Dr. Davison said. “And that per diem ought to be a flat fee that you receive just to carry the pager. Just to be inconvenienced in your life, that number, to my mind, needs to be between $1200 and $2000 a day per physician.”
The solution for many otolaryngologists—head and neck surgeons is simply to stop taking call.
Dr. Davison also has strong feelings about the divisions within specialties. Physicians have become divided, he said, into two camps: “the grandfathered camp and the new graduate camp. The grandfathered camp frequently used the model of developing a practice from the ER. But they have sold out the new camp, saying —anybody who had privileges at the hospital prior to 1986 doesn’t have to take call and everybody who starts now has to take call.’ The burden of covering often goes to the more junior physicians. If we decide as a society, either plastic surgeons or ENTs, that we have a moral obligation to cover the ER, then everybody should have to cover, and take an equal share.”
Searching for Solutions
Like many others who have studied the current status of ER coverage, Dr. Davison knows this “is not an easy problem. The hospital has got an unfunded mandate too. So it’s not really fair. They’re not the bad guys, but it is more in their best interests, and not in the physician’s best interests [to cover call].”
A May 2005 American College of Emergency Physicians Information Paper, “Availability of On-Call Specialists,” proposes a variety of legislative, regulatory, and purchasing agreement solutions to mitigate the on-call crisis. Dr. Vanlandingham believes that one of the suggested approaches, outlining creation of group purchasing organizations by hospitals, might be one possible solution. The group purchasing organizations could request proposals from contracted groups of physicians to fill call panels. This approach might be particularly helpful in rural areas, where a group of otolaryngologists could contract to cover several hospitals in a county-wide region. “It’s a burden to the otolaryngologist on-call at another hospital two miles from mine to take care of all of our ENT transferred patients when the hospital is not chipping in to help compensate for on-call coverage,” he conceded.
Dr. Donaldson suggested that solutions particular to Florida must be three-pronged: tort reform to address the liability issue; pressure at the public policy level to raise reimbursement levels; and providing an adequate supply of specialists graduating from programs. Physicians must act in concert to effect change in federal reimbursement formulas, he believes. The Florida Pediatric Society recently filed a suit against Medicaid in federal court, charging that the low Medicaid reimbursement rates (65% of the already low Medicare rates) constitute a denial of access to care for the state’s low-income children. Actions similar to these may alleviate some of the stresses on the country’s delivery of emergency room care, but the situation is unlikely to improve anytime soon, say many who study the issues.
In Florida, Dr. Donaldson pointed out, hospitals are required by state law to have emergency rooms. Will liability reform, bigger reimbursements, and increasing the supply of specialists solve all the problems of emergency room care? No, asserted Dr. Donaldson. “As long as people are using emergency rooms as a required access to care, doctors are at significant risk.
“People who need hospitals are people who are really sick. And one of the problems is, we’ve degraded the value of treating really sick patients. Who wants to treat somebody who’s gotten nailed by a train? Because, frankly, you’re going to get paid more money if you work for the railway and you re-paint the train—without the liability.”
Dr. Harris concedes that, particularly in California, hospitals are hampered by another set of unfunded mandates: seismic retrofitting. However, he said, “there is a maldistribution of money in the system.” Part of the problem is a result of the minority of physicians who, in the 1970s and 1980s, “ripped off the system because they thought there was endless money there. So part of this situation is that some of our own chickens are coming home to roost. Yet, there are no criminals here. I understand what everybody is doing. They’re just trying to make a living at the end of the day.”
©2006 The Triological Society