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Should Physicians Be Paid to Cover Call?
The Emergency Medical Treatment and Active Labor Act (EMTALA) requires all hospitals to maintain a panel of physicians representative of the specialties they offer to provide on-call emergency care. Historically, hospitals have fulfilled this requirement by making call-coverage a prerequisite of hospital privileges. Typically, staff physicians are required to provide a proportionate share of call coverage without compensation. Faced with the financial and personal burdens attendant of work in emergency care, however, many physicians, particularly those practicing in certain specialties, are becoming increasingly reluctant in recent years to provide uncompensated call coverage.
As a result, many hospital administrators are now finding that, in order to meet their EMTALA obligations, they must pay their physicians additional compensation for the time they spend on-call. From a hospital's standpoint, this is a risky proposition for a number of reasons. First, it is difficult to justify paying a particular group of specialty physicians for a service that other physicians are required to provide free of charge. Hospitals that attempt to do so will likely find themselves paying all of their staff physicians for call coverage in no time at all.
Second, and perhaps more concerning, is the fraud and abuse risk posed by on-call arrangements. Since physicians are typically obligated as part of their medical staff membership to provide call coverage without compensation, the question that must be asked is, what purpose do the additional payments for call coverage actually serve? The inherent risk is that such payments could serve as an inducement for physicians to refer patients to the hospital. If entered into with this intent, such an arrangement would clearly violate the Anti-Kickback Rule, which makes it illegal to knowingly and willfully offer, pay, solicit or receive remuneration to induce the referral of any item or service payable by a federal health care program.
The Office of Inspector General for Medicare and Medicaid Services is mindful of this risk, and has stated in the past that it would scrutinize on-call arrangements on a case-by-case facts and circumstances basis. Until recently though, the OIG had offered little guidance to hospitals as to what facts and circumstances it would consider. On Sept. 20, 2007, however, the OIG issued Advisory Opinion 07-10 in which it scrutinized an on-call arrangement contemplated by a California not-for-profit hospital. The opinion offers some insight into what the OIG considers an acceptable arrangement.
In order to cope with physicians' reluctance to provide uncompensated care to the hospital's largely-uninsured patient base, the hospital requesting the Advisory Opinion proposed an arrangement under which physicians would be obligated to:
- Participate in a monthly on-call rotation with other physicians in the same specialty;
- Provide inpatient follow-up care to the patients seen while on-call until their discharge;
- Respond timely to calls from the emergency department while on call;
- Cooperate with the hospital's risk management and quality initiatives;
- Complete medical records in a timely manner; and
- Donate call and follow-up care for the first one and a half days of each month, or 18 days a year.
Physicians would be paid a per diem rate based on the physicians' specialty and whether the physician would be on-call during the week or on a weekend. The physicians' specialty was considered only insofar as it affected the nature and severity of the cases generally treated in the emergency department by that specialty and the likelihood that the physician would be required to provide uncompensated care. An independent consultant was hired to verify that the per diem rates were fair market value for the services provided.
In its opinion, the OIG recognized for the first time that legitimate reasons exist for compensating on-call physicians. Further, it opined that the arrangement in question presented a low risk of fraud and abuse. In doing so, the OIG indicated that its key concern in evaluating on-call arrangements is whether compensation is fair market value determined on an arm's length basis for actual and necessary services and not based on the volume or value of referrals or other business generated between the parties. The OIG also pointed to the relative equality of compensation paid to each physician and the transparency and accountability built into the arrangement as reasons for its favorable opinion.
Given all the bells and whistles of the subject arrangement, the Advisory Opinion is probably inapplicable to most hospitals. The Opinion does offer some guidance where none existed before, however. Perhaps most importantly, it emphasizes the fact that hospitals are not required to compensate physicians for on-call coverage. Indeed, physicians ideally should be required to cover call as part of their staff privileges. Recognizing that this is not always an option, however, hospitals that are considering an on-call arrangement must have a thorough understanding of the inherent risks involved and the safeguards necessary to ensure that the arrangement is appropriate and legal. Any hospital contemplating entering into such an arrangement is encouraged to contact an attorney with any questions that may arise.
--Cody G. Robertson and Nathan D. Leadstrom
About the Authors:
Mr. Robertson is an associate attorney with the law firm of Goodell, Stratton, Edmonds & Palmer LLP, in Topeka, where he practices primarily in the areas of health care and general business law. He is a member of the American Health Lawyers Association and the Kansas Association of Hospital Attorneys, among others.
Mr. Leadstrom is a partner with the law firm of Goodell, Stratton, Edmonds & Palmer LLP, in Topeka, with an emphasis in physician, hospital and health law. He is a member of the American Health Lawyers Association, the Kansas Association of Defense Counsel, the Defense Research Institute and the Kansas Association of Hospital Attorneys, among others.
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Trustee Webinar - Revised IRS 990 Form - Feb. 21
Has your hospital adopted the policies necessary to comply with the new Internal Revenue Service Form 990? Most tax exempt hospitals are required to annually file the IRS Form 990. On Dec.19, the IRS released a revised draft of this form for 2008. Compliance with the new 990 could require hospitals to have as many as 15 new or revised policies in place during 2008. Learn about the following policies and how they should be adopted and implemented at your organization:
- Conflicts of Interest Policy;
- Whistleblower Policy;
- Document Retention and Destruction Policy;
- Charity Care Policy;
- Billing and Collections Policy;
- Community Benefit Report;
- Audit Committee Charter;
- Policy on Compilations, Reviews and Audits;
- Tax-Exempt Bond Compliance;
- Reimbursement of Travel and Entertainment Expenses;
- Executive Compensation, Compensation Committee and Committee Charter;
- Investment Policies; and
- Gift Acceptance Policy.
Join us from noon to 1 p.m. on Feb. 21 for a Trustee Webinar, led by Doug Anning, Polsinelli Shalton Flanigan Suelthaus PC, to learn more about the policies your hospital needs to adopt and implement in 2008. The registration form is available on the KHA Web site, or contact the KHA Education Department at (785) 233-7436 and ask for a copy.
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Register Now for the Rural Health Symposium - March 3-4
This year's Rural Health Symposium will be on March 3 and 4 at the Wichita Marriott Hotel. We have planned an agenda you don't want to miss!
During the past 100 years, the world has witnessed a startling amount of change. Due to the accelerating pace of technological advancements, experts now are predicting that society will witness a comparable amount of change within the next 25 years. Leading people and organizations into this unpredictable future will test even the most successful and well-run institutions. At the opening session of this year's Rural Health Symposium, noted futurist and leadership expert Jack Uldrich will outline the information hospitals will need to possess in order to better understand this future and share strategies to help with this change.
On Monday afternoon, Alan Morgan, CEO, National Rural Health Association, will present a look at the major policy issues facing rural health care today. Tuesday will kick off with a series of early bird roundtable discussions, led by subject matter experts, which will allow participants to learn more about a current hot topic while enjoying breakfast. The morning sessions will begin with Patsy Matheny bringing attendees up to date on community benefit reporting requirements. The morning will round out with a session on lessons learned from disasters over the past year presented by Mary Sweet, Kiowa County Memorial Hospital, Kiowa; and Curt Colson, Satanta District Hospital, Satanta. In the afternoon, attendees will be able to choose from concurrent sessions covering community benefit reporting, employed physicians, renovation/replacement projects and EMTALA.
A block of hotel rooms with a special rate of $92 a night is available at the Wichita Marriott Hotel. Please note the cut-off date for reservations is Feb. 17. The registration brochure is available online at www.kha-net.org, or contact Christie Carney at (785) 233-7436 and ask for a copy.
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KDHE Develops Self-Survey Tools for CAHs
The Kansas Department of Health and Environment recently unveiled a new initiative to assist Critical Access Hospitals wishing to perform self-surveys. Established as a 25-week program, CAHs can download an Excel spreadsheet with survey requirements set out on a weekly chart. The accompanying Interpretive Guidelines for CAHs also are provided to assist with this process. These mock surveys will not count as the standard state survey but will assist hospitals in keeping up with their survey preparedness. To access the Critical Access Hospital survey forms library on KDHE's Web site, click on the last two bullets in the CAH forms section. If you have questions on this self-survey, please contact Charles Moore, KDHE director of medical facilities and survey support, at (785) 296-0131.
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AHA Provides Summary of Quality Reporting Requirements
Recently, the American Hospital Association published a summary of upcoming quality program reporting requirements that have been issued by the Hospital Quality Alliance and the Centers for Medicare and Medicaid Services. One of the most significant requirements is for hospitals to fill out and return the outpatient reporting program pledge form by Jan. 31.
For the first time, information on patients' experiences during care and pneumonia mortality will be publicly reported. Hospitals also will be asked to collect data on quality measures for outpatient and pediatric care. This advisory provides details on the upcoming measures for data collection or public reporting in 2008. It also contains a month-by-month calendar of reporting activities you can use to keep abreast of deadlines. You will receive more detailed information from the American Hospital Association, Association of American Medical Colleges and the Federation of American Hospitals in the coming months.
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APS Staffing Program Adds Mid-Level Practitioners
Associated Purchasing Services, the group purchasing affiliate of the Kansas Hospital Association, has added an addendum to the Allied Health contract that became available earlier this year. Participating hospitals now have access to temporary nurse practitioners, physician assistants and CRNAs through one of our 23 select allied health staffing agencies with expertise in these advanced practice specialties.
The Allied Health contract is one of four contracts that are now available for hospitals to use when needing temporary health care personnel.
The APS Staffing Program is a stand-alone program offered free of charge to any health care organization in Kansas. Participation in APS's other group purchasing programs is not necessary in order to benefit from these contracts. For more information, go to www.apsstaffing.org, or contact Amanda Dornon at (888) 941-2771.
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Hospital Preparedness Mutual Aid Agreements
The Kansas Hospital Association developed the Inter-Hospital Mutual Aid Agreement to establish standard language among all Kansas hospitals in regards to patient, personnel, staff, equipment/supplies and pharmaceutical sharing during disasters. To date, we have received signed contracts from all of our community hospitals with only nine hospitals still pending … click here to review the list. KHA would like to thank hospital leadership and legal staff on reaching a consensus on this all important issue given the record number of disasters faced in 2007. If you have questions, please contact Dan Leong at (785) 233-7436.
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KHA Public Opinion Survey Results
The Kansas Hospital Association conducted a public opinion survey this fall to gather input from Kansas residents about a wide range of health-related issues. This was the second time KHA has administered the survey, the first survey was taken during the spring of 2006.
Here are some of the major findings from the survey:
Issues that Residents Think Are the Biggest Health Care Problems in Kansas
- Residents thought the cost of health care services and the high number of uninsured people in Kansas were the two biggest health care problems in Kansas. These were also the top two issues in 2006; however, the percentage of residents who selected each issue decreased significantly. Two issues that ranked significantly higher in 2007 than in 2006 were: the quality of patient care and the availability of money to update hospitals.
Perceptions of Hospitals in Kansas
- More than three fourths (77 percent) of those surveyed thought their local hospital provides safe health care and takes appropriate action to minimize the risk of infections; 13 percent did not agree, and 10 percent did not have an opinion.
- About half (51 percent) of those surveyed thought their local hospital is adequately prepared to respond to natural disasters, such as tornadoes and major epidemics, such as the pandemic flu; 27 percent of those surveyed did not think their hospital is prepared, and 22 percent did not have an opinion.
- Kansas residents were significantly more likely to think that hospitals are NOT adequately reimbursed by private insurance companies. The percentage who thought the level of reimbursement was too low increased from 14 percent in 2006 to 24 percent in 2007. Only 16 percent thought the amount was too high in 2007 compared to 19 percent in 2006.
- Kansas residents also were significantly more likely to think that hospitals are NOT adequately reimbursed by government programs, such as Medicare and Medicaid. The percentage who thought the level of reimbursement was too low increased from 21 percent in 2006 to 32 percent in 2007. Only 10 percent thought the amount was too high in 2007 compared to 12 percent in 2006.
Where Residents Get Health Care Information
- More than half (52 percent) of those surveyed indicated they receive information about health issues from their physician. More than 25 percent of those surveyed indicated that they get health information from each of the following sources: the media (television, radio, newspapers), friends/relatives and the Internet. Only 15 percent of those surveyed indicated they get information about health issues from their local hospital.
Support for Potential Initiatives
- Eighty six percent (86 percent) of residents felt that all hospitals and health care facilities where surgeries are performed should be required to treat patients regardless of their ability to pay.
- The percentage of residents who thought that all hospitals and heath care facilities where surgeries are performed should be required to provide 24-hour emergency or urgent services increased from 85 percent in 2006 to 88 percent in 2007.
- A majority (59 percent) of the residents surveyed thought the government should offer an insurance program, like Medicaid or Medicare, to all Americans; however, only 43 percent of those surveyed thought Americans should be required to have insurance coverage.
Several things about this new survey stand out. First, the message seems to be getting through that hospitals need (and are not currently receiving) adequate resources to provide necessary care to their communities. Second, the desire for more information, especially about quality, is growing among the public. Hospitals have an opportunity to play a larger role as a provider of that information. Third, while most seem to agree that everyone should have access to affordable health insurance, there is a clear division about how best to achieve that goal. This situation is evident on a regular basis as policymakers in Washington and Topeka debate health care issues. Finally, and perhaps most importantly, this poll underscores the crucial need for grassroots advocacy efforts. Health care is clearly on the rise as an important policy issue, and we must continue to tell the hospital story to policymakers and the public.
Findings have been shared with Kansas legislators. The Executive Summary of this recent survey is available on the KHA Web site.
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Community Connections - Share Your Hospital Stories
The Community Connections program recognizes hospitals that have distinguished themselves through efforts to improve the health and well-being of their communities. The Community Connections annual award program recognizes six hospital-based programs (one in each district of the state) that provide a significant community benefit.
During our 2007 Community Connections program, we received information on 54 hospital stories, all of them making their communities healthier in ways that are as diverse as the needs of each community. KHA has now published these stories in a book that highlights the unique and important ways hospitals are meeting the needs of their communities.
In an effort to build on the success of the program, we are asking Kansas hospitals to again submit examples of hospital-based programs that are making a difference. These awards are open to the entire KHA membership. Awardees will be recognized in a media/award presentation in their community, a statewide media release and during KHA Spring District Meetings. In addition, awardees will receive a $1,000 contribution given back to their Community Connections program (sponsored by KHA and the American Hospital Association). Hospitals can enter multiple programs. All stories received will be published in a Community Connections book. Community Connections hospital stories are due March 1 for the 2008 awards. Awards will be announced in April.
We know there are many stories about how every community hospital in Kansas benefits its local constituency. We encourage your hospital to participate.
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New KHA Board of Directors Convene
On Jan. 16, the Kansas Hospital Association Board discussed many of the important health care issues that will be at the forefront this year. The board reviewed our recent public opinion survey and compared results from 2007 with those from 2006. Members also discussed the Community Connections program that highlights the benefits provided by community hospitals. The 2008 program is now underway.
The board provided guidance on the potential joint KHA/Kansas Medical Society quality collaborative. KHA and KMS staffs have met twice to discuss the next steps, including the need to create a task force/work group consisting of approximately 12 to 16 KMS and KHA representatives. The increasing attention to non-payment for so called "never events" also was a topic of discussion. The board reviewed a set of principles adopted by the American Hospital Association and voted to express support for those principles.
With the start of the 2008 legislative session, much of the KHA Board discussion centered on issues that may arise before the Kansas Legislature. The board reviewed the Kansas Health Policy Authority's recommendations and formally adopted a statement regarding those recommendations. The board also endorsed the need for the legislature to increase funding for the Wichita Center for Graduate Medical Education program. The hospital licensure legislation passed by the House last year was reviewed, and the KHA Board raised concerns about some of the unintended consequences of that legislation.
We are fortunate at KHA to have an engaged and active board (which includes two hospital trustees) to guide our many activities on behalf of Kansas hospitals.
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Trustee Governance Manual Available from KHA
The Kansas Hospital Association's Hospital Governance Task Force has created a number of resources to help hospital trustees in their important leadership positions. All of these new resources can be found on the KHA Web site. Click on "Trustees."
KHA's Board of Trustees Governance Manual is our newest resource. The task force worked with Larry Walker for some time to create this online governance manual that is totally customizable. The manual, instruction guide and appendixes below are all in Microsoft Word templates that enable you to quickly and easily add and delete content to customize the manual and appendix's to your hospital's unique needs.
KHA commends hospital trustees for their dedication to Kansas hospitals and the health care of Kansans. We hope you find these resources helpful. If you have topics you want covered in future editions of the manual, don't hesitate to let us know by contacting Cindy Samuelson at (785) 233-7436.
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KDHE Announces New Emergency Volunteer Registry
The Kansas System for the Early Registration of Volunteers, K-SERV, is a secure registration system and database for volunteers willing to respond to public health emergencies in Kansas or other areas across the country. The system is maintained by the Kansas Department of Health and Environment. It can be utilized as a volunteer database at the local and state levels; therefore, avoiding duplication of information at each level.
During an event with health and medical consequences, hospitals, local health departments, and other health care facilities may experience a surge in patients requiring supplemental human and other resources. In such instances, volunteers may be called upon to meet the demands of the incident. Some of these volunteers may be health care professionals with specialized skills. K-SERV improves the efficiency of volunteer deployment and utilization by verifying in advance the credentials of volunteer health care professionals. This pre-registration and pre-verification of potential volunteers enhances the state's ability to quickly and efficiently send and receive appropriate health professionals as needed to assist with an emergency response.
Registration on K-SERV does not obligate volunteers to serve during a disaster. If an event requiring volunteer assistance occurs, appropriate public health officials will use K-SERV to generate a list of potential volunteers based on information provided during registration. Those listed will be contacted and given information regarding the event, including where they would need to report, and be given the opportunity to accept or decline service as a volunteer.
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