EMTALA

July 5, 2002

Centers for Medicare and Medicaid Services                                             

Department of Health and Human Services

Attention: CMS-1203-P

PO Box 8010

Baltimore, MD 21244-1850

 

The American Academy of Physician Assistants (AAPA), representing the more than 42,000 practicing physician assistants (PAs) nationwide, would like to take this opportunity to comment on the EMTALA portion of the proposed rule published in the May 9, 2002, Federal Register. Specifically, we are interested in the issue of hospital emergency room call and potential limitations on the ability of physician-PA teams to share on-call responsibilities .

 

We fully support the intent of the Emergency Medical Treatment and Active Labor Act, which is to ensure that all individuals have access to appropriate emergency care. We also support CMS' intention to "help improve access to physician services for all hospital patients by permitting hospitals local flexibility to determine how best to maximize their available physician resources," as noted in the preamble to the proposed rule. Improving access to physician care frequently involves utilizing physician assistants as part of the physician's team.  Lack of clarity in the regulations has made this difficult .

 

The Problem

 

Both the law [US Code 42 §1395cc(H)(I)(iii)] and the regulations [42 CFR §489.20(r)(2)] state that a hospital subject to EMTALA must "maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition."  

 

Without clarification, the specific reference to an on-call list of physicians leads some hospitals to conclude that physician assistants cannot respond to call, as a delegated responsibility from a supervising physician. Until EMTALA, it had been without question common practice in many hospital EDs for PAs to take call. There still are many hospital attorneys who believe - as we do - that because EMTALA does not prohibit delegation of call, it is legal where allowed by state law and hospital policy.

 

We would further note it is eminently clear that physician assistants may take call in Critical Access Hospitals. The Medicare Conditions of Participation for Critical Access Hospitals [42 CFR 485.618(d)] state, "There must be a doctor of medicine or osteopathy, a physician assistant, or a nurse practitioner with training or experience in emergency care on call . etc."

 

PAs are educated in a medical model and are providers of medical services. They are recognized providers of physician services under the Medicare program, are enrolled, and have their own Provider Identification Numbers. They are licensed in every state, the District of Columbia, and Guam, and they always work with the guidance of a supervising physician. Every time a PA takes call, there is a supervising physician available for consultation and to assume the care of the patient, if necessary.

The following examples illustrate how PAs serve a valuable role in sharing call as part of a team:

Example 1:   An orthopedic surgeon who employs a PA reports that ER coverage is one of the most valuable roles the PA fills in his practice. When the PA is on call, she performs the initial evaluation of any patient with an orthopedic problem. The PA summons the physician only if there is a surgical emergency or a fracture that requires reduction. Even in those cases, the PA has the chart written up by the time the surgeon arrives. If the surgeon decides to operate, the PA takes care of admitting the patient and performs the admission history and physical. For minor problems, such as simple fractures or soft-tissue injuries, the PA treats the patient and sets up an office appointment for follow-up care.

Example 2:   It is 4 p.m. and a man who fell from a ladder comes into the ER complaining of back pain and numbness and tingling in one leg. He has a previous history of spine surgery. An ER physician evaluates the patient and thinks he might have a herniated disc. The ER physician calls for a neurological evaluation. The PA, who is on call, goes to the ER, performs a neuro history and physical, and determines that the patient will need an MRI because of previous history of spine surgery. The situation is not life threatening, and it will take several hours to get the necessary tests ordered and performed. The PA calls the supervising neurologist, explains the situation and the need to admit the patient. The physician agrees, orders the admission, and the PA proceeds to admit the patient and line up all the tests. The physician will come in the following morning to look at the studies and proceed as necessary.

Example 3:   A family practice in rural South Dakota consists of one physician and one PA. There is one other physician in a nearby community. These two physicians and one PA are the only medical providers available to cover the emergency department at the closest Critical Access Hospital. Nurses staff the emergency department and use the call list if an emergency patient presents.   The two physicians and the PA take turns covering call, with the PA's supervising physician backing up the PA as needed. The conditions of participation for critical access hospitals clearly allow PAs to take call, but EMTALA is not clear.

 

If CMS supports our belief that EMTALA allows physicians to cover call by utilizing a PA as the initial call responder, it is essential that clarification to that effect be included in revised regulations.  Such an addition to the regulations might state affirmatively that physicians can delegate call responsibilities to other qualified health care professionals (i.e., physician assistants) to the extent allowed by state law and hospital policy. It also should state that hospitals granting qualified physician assistants privileges to take call are not in violation of EMTALA.  

 

The Call List

 

Assuming CMS agrees that EMTALA allows for physician-PA team coverage of call, the next question is what happens with the call list. Since the EMTALA law states that hospitals must have an on-call list of physicians, does that mean that the list cannot include physician assistants, who always work with physician supervision?  We believe that under the legal doctrine of respondeat superior, which is fundamental to the physician-PA team concept of practice, listing a physician assistant's name on a hospital call list is tantamount to listing the supervising physician's name. Without the backup of a supervising physician, the PA cannot practice.

 

We believe this view is also supported in federal regulation under the 1986 Medicare and Medicaid Conditions of Participation for Hospitals, which include a statement supporting broad delegatory authority for physicians. Those rules [42 CFR §482.12(c)(1)(i)] state, "Every Medicare patient is under the care of a doctor of medicine or osteopathy. (This provision is not to be construed to limit the authority of a doctor of medicine or osteopathy to delegate tasks to other qualified health care personnel to the extent recognized under State law or a State's regulatory mechanism.)"

 

It seems to us that there are several ways CMS could address this issue:

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or

 

We agree with the interpretive guidelines at Tag 404A where they state, "Each hospital has the discretion to maintain the on-call list in a manner that best meets the needs of its patients."   We believe that ideally, this level of decision-making - about how the call list will be constructed - is best left to the hospital to decide, but hospitals and practices need clarification from CMS that physician-PA teams can be included .  

 

Conclusion

 

We consider this to be an access and resource utilization issue.   It is to the benefit of patients, physicians, and hospitals, to allow as many qualified practitioners as possible to share the responsibility for emergency room call.

 

In comments before the Practicing Physicians Advisory Commission on June 3, 2002, CMS counsel Thomas Barker stated that EMTALA clarifications should be "guided by common sense and work in the real world."   Mr. Barker noted that the EMTALA revisions are being made with four guiding principles in mind:

We believe that our request for clarification supports those four principles. The AAPA believes that any clarification about call lists should reflect the reality that for years PAs have helped to increase patient access to medical care by sharing the call load. In fact, this is one reason some practices hire PAs - to ease the physicians' call burden.

 

We believe CMS should make it clear that under EMTALA physicians can delegate on-call responsibilities to PAs to the extent allowed by state law and hospital policy and that call lists can include physician assistants.


Sincerely,

Stephen C. Crane, PhD, MPH

Executive Vice President, Chief Executive Officer

 

 

Last Revised: 1/18/06