"On-Call" Obligations and Mid-Level Providers: Balancing Business Goals With EMTALA Compliance Concerns

In the face of increasing enforcement, physician frustration over the burden of on-call service, and yet another round of regulations under the Emergency Medical Treatment and Labor Act (EMTALA), some hospitals are revising their on-call strategies. Concluding that paying for on-call services and employing and recruiting more physicians are not the necessarily the correct or only responses to physicians' EMTALA concerns, these hospitals are exploring a broader scope of arrangements.

This article reviews recent EMTALA regulations and discusses an alternative strategy to easing the burden of call for physicians: expanded use of mid-level providers in support of patient care in hospital emergency departments (EDs). Hospitals considering a mid-level provider strategy must assess the facts— and balance not only EMTALA requirements, but also state-specific scope-of-practice and licensure requirements and reimbursement restrictions for Medicare and other payers—in crafting an appropriate arrangement.

EMTALA Requirements

EMTALA Obligations in General. The Emergency Medical Treatment and Labor Act requires Medicare-participating hospitals to maintain lists of physicians who are on call to stabilize patients with emergency medical conditions in accordance with the resources available to the hospital. The Centers for Medicare and Medicaid Services (CMS) has stated it is a "reasonable expectation that a hospital be required to provide on-call coverage in any specialty offered to the hospital's patients."

This standard has not been incorporated into EMTALA regulations out of concern it might establish an unrealistically high standard given variation in the size, staffing and capabilities of hospitals. CMS has, however, squarely placed the burden on hospitals to maintain adequate on-call rosters to meet patient care needs in their EDs.

Recent EMTALA Changes. As part of the 2009 Final Inpatient IPPS Rule, CMS clarified on-call obligations and adopted new rules for community on-call plans. These changes, which are effective October 1, may not materially ease the burden of call.

On-Call Lists. CMS deleted language stating that a hospital is required to maintain an on-call list "in a manner that best meets the needs of the hospital's patients." This change, as explained by CMS, was made to reduce confusion regarding the appropriate standard for an on-call list. CMS noted that existing regulations, which require that on-call lists be maintained "in accordance with the resources available to the hospital," provide sufficient guidance that a hospital is required to provide on-call services based on the resources it actually has available at the time, including the availability of physicians and specialists.

In a cautionary note, CMS stated that "physicians should not perceive the change in the text of the regulation as confirmation they should limit their on-call availability"—an apparent nod to concerns that physicians (or hospitals) would seek to excuse non-compliance by claiming a specialist was not "available" as a resource.

Community On-Call Plans

At first blush, a community on-call plan presents an appealing solution to the call-coverage problem. Under such a plan, two or more hospitals in a geographic area would coordinate call coverage. To illustrate, let's say Hospital A and Hospital B provide neurosurgery call on alternating weeks. If a head injury patient presents to Hospital A during Hospital B's neurosurgery coverage week, Hospital A stabilizes the patient within its (limited) capacity. It then transfers the patient to Hospital B, where the patient can receive specialized neurosurgery treatment.

A community on-call plan must include the following elements:

1. Clear delineation of on-call responsibilities for each hospital
2. Description of the geographic area covered by the plan
3. Signature of an appropriate representative of each hospital
4. Assurances that local and regional emergency medical system protocols include information on community on-call arrangements
5. Statement reaffirming the obligation of each hospital to meet its EMTALA obligations to provide medical screening and stabilizing treatment with its capacity, and to comply with the EMTALA transfer requirements
6. Annual assessment of the community on-call plan by the hospitals

Potential Obstacles to Community On Call. Despite the potential benefits of such a strategy, several obstacles could discourage participation in community on-call plans. As a practical matter, a community on-call plan may require an unprecedented level of cooperation among competing hospitals. Will hospitals incur antitrust liability for market division? Should hospitals pay for on-call services? And what about HIPAA?

CMS suggested that hospitals direct antitrust concerns to the Department of Justice and HIPAA questions to the Office of Civil Rights. It also noted that "financial arrangements made between an on-call physician and a hospital are between that physician and that hospital" and did not address potential Stark Law or anti-kickback implications.

Mid-Level Providers and EMTALA. Several years ago, CMS issued guidance to clearly allow mid-level providers, including nurse practitioners (NPs) and physician assistants (PAs), to assist in physician on-call responsibilities under certain limited circumstances. In response to public comment regarding use of PAs employed by orthopedic practices in addressing on-call requirements, CMS observed that "there may be circumstances in which a physician assistant may be the appropriate practitioner to respond to a call from an emergency department." While this change opened the door to the use of mid-level providers in support of ED on-call obligations, hospitals are still exploring the potential benefits, limitations and models for use of mid-level providers to ease the burden of call.

Of course, EMTALA does not permit physicians to avoid "first call" by transferring on-call obligations to a mid-level provider (and mid-level providers cannot be listed in hospitals' on-call lists in lieu of the on-call physician). However, under EMTALA regulations, mid-level providers may be appropriate responders to a call placed to an on-call physician by the ED physician. The on-call physician must make a case-by-case assessment whether aspects of the patient's care may be appropriately assigned to the mid-level provider, and the on-call physician remains ultimately responsible for the patient care. This approach may allow the on-call physician to satisfy his or her on-call obligation in a manner consistent with appropriate patient care and with minimal disruption to the competing obligations of private practice and family.

Medicare Billing Rules and Options for Mid-Level Providers. As a general matter, Medicare covers services provided by Medicare-participating physicians, PAs and NPs as long as the practitioners are appropriately qualified and services meet applicable billing criteria—including being furnished by a licensed/certified provider and falling within the practitioner's scope of practice. Licensed physicians enjoy the broadest scope of practice, while that available to mid-level providers and other practitioners is more limited for Medicare program purposes. Mid-level providers may not furnish or be reimbursed for services outside of their scope of practice, licensure and applicable supervision requirements. Medicare generally pays for mid-level provider services at 85 percent of the physician fee schedule amount.

Medicare billing rules effectively permit payment for professional services furnished in the ED where payment is made to a physician or a mid-level provider's employer for the practitioner's personally performed, separately payable services. In addition, Medicare will also make a "shared service" payment to a physician, mid-level provider or their joint employer, for certain separately payable services that may be furnished and paid for as a "shared service" under Medicare. A brief discussion of the "shared services" option follows.

Shared Services. In 2002, CMS articulated a policy that permits mid-level provider and physician services to be combined for the purposes of billing evaluation and management (E/M) services furnished in hospitals. Under the Medicare "shared service" policy, when a mid-level provider and physician from the same employer, group or hospital, document a face-to-face encounter with a patient on the same day, the services of both practitioners may be considered when selecting the appropriate E/M code, and the service may be billed under either the physician's or the mid-level provider's number.

The shared service policy applies to the professional component of hospital inpatient services, hospital outpatient services and hospital ED services only. Consultations, services included in the global surgical package, procedures and critical care services generally may not be billed as shared services. Where Medicare criteria for a shared service cannot be met (e.g., mid-level provider and physician are not from the same group or employed by the same employer, or where the service cannot be "shared" under applicable billing rules), the mid-level provider and physician services can not be combined for billing purposes.

Shared services billing is not required in all instances. Indeed, to the extent separate services furnished by both mid-level provider and a physician are medically justified, and there is a separate current procedural terminology (CPT) code describing each service, both practitioners may bill under their respective Medicare numbers for the services they personally provide.

Using Mid-level Providers to Enhance ED Services

The revised EMTALA guidance, combined with Medicare billing requirements, supports several practical options to reduce the burden of physician on-call service.

Enhanced Emergency Department Physician Services. As a threshold matter, hospitals may certainly encourage ED physicians to furnish the full range of services that are properly within their scope of practice and specialty, and discourage them from making "early handoffs" to on-call physicians as a matter of course. The obvious exception to this being, however, where the services of the on-call physician in the applicable specialty are truly needed. Overall, however, separately billable professional services that are furnished within a performing practitioner's applicable scope of practice, and performed entirely by a physician (e.g., ED physician or other physician), or by a mid-level provider in accordance with applicable supervision requirements, are separately payable by Medicare. In this context, there may be services that can be furnished by ED physicians or mid-level providers that don't require involvement of on-call physicians.

Private Practice Affiliated Mid-level Providers. Hospitals may also wish to encourage private practice physicians (e.g., ED physician groups or other groups with substantial on-call obligations) to retain one or more mid-level providers as group employees—extending the services of group physicians and benefiting from the ability to furnish and bill for professional ED services that can be billed as "shared services."

In the case of professional services outside of the scope of practice of an ED physician, separately billable professional services can be performed by a mid-level provider when: (1) the appropriate on-call specialty physician has first been contacted by the ED physician in accordance with EMTALA, (2) the on-call physician has determined the required services can be appropriately addressed by a mid-level provider within the mid-level provider's scope of practice and do not require the in-person services of the on-call physician, and (3) the on-call physician provides appropriate supervision of the mid-level provider and is ultimately responsible for the patient care.

Where the on-call physician determines a separately billable service may be properly furnished by a mid-level provider within the mid-level provider's scope of practice, the on-call physician may delegate the service to the mid-level provider, and the mid-level provider may separately bill for the service. Keep in mind, however, that where an ED patient requires specialized physician services (which are beyond the ED physician's scope of practice), the appropriate on-call physician must be contacted by phone as the appropriate first responder as required by EMTALA.

Anti-kickback Compliance Concerns. In most hospitals that permit mid-level providers to respond to on-call obligations, the mid-level providers are employed by the on-call physicians or their group practice—not by the hospital. Indeed, this is the fact pattern presented and approved by CMS in the preamble to the EMTALA regulations discussed above. Where a mid-level provider's services in the ED may be billed independently, mid-level provider services that support a community physician should not raise compliance issues because the mid-level provider (and his/her employer) can provide a service for which payment is provided.

However, where a hospital-employed mid-level provider provides on-call services in connection with an independent community physician's on-call obligations, and the independent community physician is the only practitioner who is able to bill for the service, the mid-level provider's services could be viewed as a form of remuneration from the hospital to the community physicians, thereby raising anti-kickback statute compliance concerns.

Conclusion

While CMS appears to acknowledge the burdens of call, by adopting community on-call plan regulations, hospitals can consider other options, including a mid-level provider strategy to ease this burden. Any mid-level provider on-call strategy must be designed to comply not only with EMTALA, but also with state licensing laws and the Medicare reimbursement requirements.