Distances in rural health care can be hard to fathom. A 2018 study found it took rural Americans, on average, 17 minutes to get to a hospital, but only 10 minutes in an urban center.[i] The distance between rural hospitals can be vastly further – in 2019, a National Institutes of Health study noted that hospitals in one rural state were generally at least 50 miles apart.[ii] These areas have been described (without meaning to be pejorative) as “health deserts.”[iii] Small populations, and a growing shortage of physicians in rural areas,[iv] often lead to hospitals in these areas having only one or two physicians in a particular specialty. Advanced health practitioners (AHP’s) with specialty training, such as psychiatric nurse practitioners or certified nurse midwives, can be an excellent way to preserve access to specialty care, particularly when lack of physician coverage would otherwise mean the hospital must divert or transfer emergency patients.
Rural Hospitals Can Struggle To Provide Full Specialty Coverage
But the federal Emergency Medical Treatment and Active Labor Act (EMTALA)[v] can complicate small and rural hospitals’ attempts to supplement specialty physician call coverage with specially-trained AHPs. Under EMTALA, each Medicare-participating hospital with an emergency department (ED) must screen every person coming to the ED for an emergency medical condition (EMC), and either stabilize or appropriately transfer each patient found to have an EMC.[vi] Hospitals must further maintain a list of physicians who are available on-call to the ED to provide further evaluation and or treatment necessary to stabilize patients with EMC’s. How much physician call coverage each hospital has to provide, however, is unclear. EMTALA does not prescribe any specific level of coverage, and CMS has stated only that it “expects a hospital to strive to provide adequate specialty on-call coverage consistent with the services provided at the hospital and the resources the hospital has available.”[vii] To ensure CMS finds the hospital’s coverage “adequate”, many hospitals strive for “full coverage” or “24/7” coverage – to have a physician in each specialty on call, at all times, every day of the week.
There is no exception to EMTALA’s call coverage requirements for small or rural hospitals,[viii] even though it may be impossible for a small or rural hospital with a small medical staff to provide “full coverage”. CMS has acknowledged these limitations, explicitly stating that it does not require any particular physician to be on-call at all times,[ix] and disavowing the so-called “rule of three” (hospitals with at least three physicians in a specialty must provide full coverage).[x]
No Good Deed Goes Unpunished; Listing AHP’s on the Physician Call Schedule
In an attempt to fill out the call schedule, however, some rural hospitals list advanced healthcare practitioners (AHP’s) with specialized training (such a psychiatric nurse practitioners, or certified nurse midwives) on the physician call schedule for those specialties. This practice, although well-intentioned, could lead a hospital to unintentionally violate EMTALA, since EMTALA specifically requires the hospital to maintain a list of physicians who are on-call. In addition, CMS’ guidance specifically states that only physicians, and not AHP’s, can be listed as the “first call” for the ED; if a physician is listed as “on-call”, the ED must first contact that physician, not an AHP designated by that physician.[xi] CMS does allow, on a case by case basis, the on-call physician to send an AHP to respond to the ED in the physician’s place, but only after consultation between the ED and the on-call physician, and only if the ED agrees.[xii] Listing a AHP on the physician call schedule for a specialty, or allowing an AHP to take the “first call” when the physician is listed as on-call, could potentially violate EMTALA.
Supplementing Call Coverage with AHP’s in an EMTALA-Compliant Way
Hospitals can, however, remain compliant with EMTALA and still use AHP’s to provide specialty call coverage by creating separate AHP and physician specialty call schedules. EMTALA requires hospitals to have written policies and procedures in place to respond to situations in which a particular specialty is not available.[xiii] As noted above, CMS does not require a physician to be on-call at all times, and having a separate specialty AHP call schedule can be part of the hospital’s procedure for responding when no physician in a particular specialty is available. Having separate AHP and physician call coverage schedules also allows the hospital to clearly demonstrate its compliance with both EMTALA requirements (having a physician call list, and having a plan for responding when a physician is not on-call). Some may argue that having a single call schedule listing both physicians and AHP’s also satisfies both requirements; however, a CMS surveyor, interpreting EMTALA’s requirements strictly, may find a mixed call list does not meet the letter of EMTALA’s physician call-list requirement. Thus, as long as it does not cause confusion among ED staff, separate physician and AHP call schedules may be more prudent.
Since the distinction between having AHP’s listed on the physician call list, and having separate physician and AHP call lists, is subtle, we would recommend that the hospital carefully review its policies to make sure this practice is clearly stated. It is also crucial not to count on AHP call coverage as a substitute for providing adequate physician coverage. CMS has made clear in its Interpretive Guidelines for EMTALA that the adequacy of a hospital’s call coverage will be viewed relative to the volume of specific services provided by that hospital, and that a hospital that routinely provides specific services, but does not provide commensurate physician call coverage, may violate EMTALA:
For instance, if the hospital under investigation performs a significant amount of interventional cardiac catheterizations and holds itself out to the public through various advertising methods as a center of excellence in providing this specialized procedure to the community, it would be reasonable to expect that there would be adequate on-call coverage by a physician who is able to perform an emergent interventional cardiac procedure on individuals who present to that hospital’s DED in need of such an intervention or who are appropriately transferred to that hospital for such an intervention.[xiv]
Hospitals should therefore carefully consider their call coverage policies and procedures, and medical staff bylaws, to ensure that physician call coverage is being provided consistent with the volume of physician services being provided during regular business hours.
Conclusion – Yes, you can!
Hospitals face significant challenges when trying to expand and maintain needed health care services in rural locations – they must simultaneously provide the widest range of care possible, but also ensure that same range of care is available twenty-hour hours per day, with a small (and shrinking) pool of providers to do it. EMTALA can seem like a “one size fits all” solution, which does not fit rural hospitals very well, particularly when it comes to call coverage. However, rural and small hospitals can craft solutions meeting both EMTALA’s letter and spirit, that recognize the constraints they face but still allowing those hospitals to provide the best care possible to their communities.
[i] https://www.pewresearch.org/short-reads/2018/12/12/how-far-americans-live-from-the-closest-hospital-differs-by-community-type/
[ii] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6459655/
[iii] https://flatheadbeacon.com/2020/01/30/addressing-montanas-health-deserts/
[iv] https://www.cbsnews.com/news/doctor-shortages-rural-health-care-elko-nevada/
[v] 42 U.S.C. §13955dd; 42 C.F.R. §489.24
[vi] 42 C.F.R. §489.20(r); 42 C.F.R. §489.24(j)
[vii] CMS, State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare Participating Hospitals in Emergency Cases (“EMTALA SOM”), Tag A-2404
[viii] In fact, the EMTALA regulations specifically include critical access hospitals and rural emergency hospitals in the definition of “hospital”. See 42 C.F.R. §489.24(b)
[ix] CMS S&C 04-10 (November 7, 2003)
[x] EMTALA SOM, Tag A-2404
[xi] EMTALA SOM, Tag A-2404
[xii] EMTALA SOM, Tag A-2404
[xiii] 42 C.F.R. §489.24(j)(1)
[xiv] EMTALA SOM, Tag A-2404
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