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CMS Clarifies the Expanded Role of Telemedicine in Delivering CAH Emergency Services

on Friday, 28 June 2013 in Health Law Alert: Erin E. Busch, Editor

Conditions of Participation

On June 7, 2013, CMS released a helpful Memorandum1 clarifying the role that telemedicine can play in meeting CAH emergency room standards, both under conditions of participation and for EMTALA compliance. The Memorandum was triggered by widespread “misconceptions” on the part of critical access hospitals about whether telemedicine could effectively be used to meet certain conditions of participation and EMTALA standards. The tone was generally one of encouraging the greater use of telemedicine to fill gaps.


“CMS welcomes use of telemedicine by CAHs to extend access to specialty care services, including emergency services, for the rural populations CAHs serve.”


The Memorandum is a clarification, not a rule change. It starts with Section 485.618(e) of the CoPs, which requires a CAH to have an MD/DO “immediately available” by telephone or radio to provide information on treatment or refer patients to the CAH. This is a continuing 24/7 obligation. The Memorandum explains that this condition can be met by use of an MD/DO via telemedicine. For purposes of this standard, the physician need not be available to come on-site.


“For example, a CAH could use a telemedicine MD/DO 100% of the time, or could develop a schedule for the use of MDs/Dos who practice onsite for part of the time, with the telemedicine MDs/Dos providing those services for the rest of the time.”


The Memorandum next analyzes Section 485.618(d)(1) of the CoPs, which requires a CAH to have an MD, DO, PA, NP or CNS with training or experience in emergency care on-call and immediately available by phone or radio and available on-site within 30/60 minutes 24 hours per day. This is a different standard and requires actual physical on-site availability within the required time frame. The Memorandum clarifies that:


  • The immediate availability can be by telemedicine as well as radio or telephone.
  • Any of the listed practitioners, when properly qualified by the CAH, can satisfy this requirement. It does not require a physician.
  • More importantly, a physician is not required to be either immediately available or available on-site in addition to a designated QMP.


The Memorandum repeats the obligation of CAHs to provide a medical screening examination for all individuals who come to the emergency department and stabilizing treatment or an appropriate transfer. The screening examination and stabilizing care may be provided by a non-physician QMP. The critical access hospital may arrange for physician availability to supervise or assist the QMP via telemedicine, if it chooses to do so. By implication, the physician providing any requested supervision or assistance via telemedicine may be remote or may be in the community. 


The Memorandum then turns, however, to the separate EMTALA requirement for physicians who are designated to be on-call. It reiterates that small hospitals in remote areas are not required to have physicians on-call 24/7, but when a physician is designated as on-call, the physician must physically come to the hospital and participate in care if called in to do so. This rule is not relaxed and cannot be satisfied by telemedicine. Practically speaking, this means that the telemedicine provider who may be available to assist and direct the QMP during the screening examination and stabilization may be different than the on-call physician. The former may be remote; the latter must be local and available to come to the hospital if called in by the QMP.



The Memorandum may be helpful to critical access hospitals in defining responsibilities and expectations of their local on-call physicians. These physicians may have less responsibility and fewer interruptions if most calls can go to a contracted telemedicine provider of emergency services. However, on-call designation for these physicians still carries the obligation to appear when called.


Read the Full Newsletter: Health Law Advisory June 28, 2013 »

Andrew D. Kloeckner

 1 CMS S&C: 13-38-CAH/EMTALA

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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