Telemedicine and EMTALA Compliance by CAHs
As large hospitals and health systems reach out to critical access hospitals (“CAHs”) offering emergency medicine expertise by telemedicine, the question arises as to how the CAH can use that service while still meeting its legal obligations under the Emergency Medical Treatment and Active Labor Act (“EMTALA”).
The Centers for Medicare and Medicaid Services (“CMS”) addressed that question in a Survey and Certification Letter dated June 7, 2013, starting with the statement that it welcomes the use of telemedicine by CAHs to expand the availability of specialty emergency care services to rural populations.
CAH CoPs
1. The CAH emergency services Condition of Participation (“CoP”) does not require a physician to appear on-site whenever an individual comes to the emergency department. The CAH CoP concerning staffing of emergency services requires a physician, physician assistant (“PA”) or nurse practitioner (“NP”) with training in emergency care to be immediately available by telephone or radio and available on-site within 30 minutes. Thus, the physical response required within 30 minutes may be staffed with a PA or a NP.
2. The requirement in the CoPs that a physician be immediately available by telephone or radio contact 24/7 to receive emergency calls, provide information on treatment of emergency patients and refer patients can be met by use of a telemedicine physician as an alternative to a physician who practices on-site at the CAH. CMS notes that depending on the circumstances, it may be adequate for a nonphysician qualified medical personnel (“QMP”) to work exclusively with a telemedicine physician (without a local physician on-call). It also offers the alternative of working with a telemedicine physician, but also being supported by a local on-call physician who can respond on-site.
EMTALA Regulations
1. The EMTALA regulations make the on-call requirement specific to physicians. Thus, “The EMTALA requirement cannot be satisfied by including non-physician practitioners on the on-call list.” A physician who is on-call and requested by the CAH’s nonphysician QMP to make an in-person appearance at the CAH after the initial exam to provide treatment to stabilize an emergency medical condition must come to the CAH within a reasonable amount of time. Failure of an on-call physician to do so could subject both the CAH and the on-call physician to EMTALA enforcement action and penalties. A CAH is not required to include the telemedicine physicians on its physician on-call list mandated under the EMTALA regulations. CMS adds that it would not be advisable to do so, because the telemedicine physician would not be in sufficient proximity to respond in person. CMS advises that CAHs are required “to have an on-call list reasonably related to the services it offers, composed of physicians(s) who practice on-site at the CAH. This does not mean that physicians who practice on site must be on-call and available to appear in person at all times. Nor does it mean that an on-call physician must be called to appear on-site in every case involving an emergency medical condition.”
2. CMS states that a CAH which has only a few physicians routinely practicing on-site is not expected to have one of them on-call at all times. “In such a situation, it would not be unreasonable for the CAH to have very limited on-call coverage.” This statement represents a change in surveyor expectations (since 2013). Historically, surveyors have suggested that a physician must be on call at all times. The historic expectation was that, even when a PA or a NP was taking first call, a back-up physician would be listed on-call for that time period. This also seemed to be important historically because there is no provision for civil money penalties against PAs and NPs; accordingly, it appeared necessary to have a responsible physician on-call at all times in order for the OIG’s authority to impose civil money penalties to have meaning and protect all emergency patients.
3. However, CMS reiterated that CAHs have a responsibility to ensure that they are providing sufficient on-call services to meet the needs of their community in accordance with the resources the CAH has available. CMS expects a CAH to strive to provide adequate specialty on-call coverage consistent with the services routinely provided at the CAH.
4. When a telemedicine physician is providing treatment of individuals in a CAH’s ED along with a nonphysician QMP on-site, there is no requirement under EMTALA that the CAH must always require one of the local physicians to come to the ED as well. If the nonphysician QMP and the telemedicine physician conclude that the individual needs hands-on treatment that is beyond the capability of the on-site QMP, the CAH may transfer the individual to another hospital for stabilization. Notice that CMS anticipates that the patient may be transferred in this instance in an unstable emergency medical condition.
5. In the event of transfer of an individual in an unstabilized emergency medical condition, there must be a certification that the benefits of transfer outweigh the risks. CMS anticipates that the telemedicine physician may sign this, or the nonphysician QMP may initially sign with the telemedicine physician countersigning later. If the telemedicine physician is to sign the certification for transfer (or countersign it), he or she must have telemedicine privileges to document medical records at the CAH. It is interesting that CMS does not address the scope of privileges that should be granted a telemedicine emergency physician.
Another legal issue not addressed by CMS in this Survey and Certification letter is that of fulfilling any supervision requirements for the nonphysician QMP as necessary to meet the QMP’s licensure standards as a PA or NP. In some states, it may be possible for the telemedicine physician to supervise the nonphysician QMP, but that relationship should not be presumed. In most cases, it will be important for the QMP’s regular physician supervisor to retain responsibility over the QMP’s supervision even when the QMP is working with a telemedicine provider. CAH CoPs require a physician to review a portion of all outpatient records, and the telemedicine physicians cannot be expected to do that unless it is an express provision in the telemedicine service agreement. If the CAH is going to rely upon its local physicians for such medical record review, it would be a matter of courtesy that they know that in advance.