Emergency Telemedicine: Achieving and Maintaining Compliance with the Emergency Medical Treatment and Labor Act

Abstract

Purpose:

Telemedicine is a growing and important platform for medical delivery in the emergency department. Emergency telemedicine outlays often confront and conflict with important federal healthcare regulations. Because of this, academic medical centers, critical access hospitals, and other providers interested in implementing emergency telemedicine have often delayed or forgone such services due to reasonable fears of falling out of compliance with regulatory restrictions imposed by the Emergency Medical Treatment and Labor Act (“EMTALA”). This article offers insights into methods for implementing emergency telemedicine services while maintaining EMTALA compliance.

Methodology:

Critical analysis of EMTALA and its attendant regulations.

Results:

The primary means of ensuring EMTALA compliance while implementing emergency telemedicine programs include incorporating critical clinical details into the services contracts and implementing robust written policies that anticipate division of labor issues, the need for backup coverage, triaging, patient transfer protocols, and credentialing issues. With adequate up-front due diligence and meaningful contracting, hospitals and telemedicine providers can avoid common EMTALA liability pitfalls.

Background

The Emergency Medical Treatment and Labor Act (“EMTALA”) requires hospitals to (1) provide an appropriate medical screening examination; (2) stabilize a patient with an emergency medical condition; (3) and provide timely consultation, treatment, and hospitalization for a patient presenting to a hospital emergency department (ED) with an emergency medical condition.¹ Although more than 30 years old, EMTALA remains aggressively enforced and of critical importance for Medicare-participating hospitals. Between 2005 and 2014, Centers for Medicare and Medicaid Services (CMS) completed EMTALA investigations at ∼43% of U.S. hospitals and issued confirmed violations at 27%.² EMTALA violations can result in nonmonetary sanctions, hefty fines, civil lawsuits, and most critically, CMS can terminate the provider agreements of hospitals who fail to implement acceptable corrective action plans, which has historically resulted in facility closure.²

To achieve greater access to care for a wider variety of patients, many hospitals have implemented emergency telemedicine services for conditions such as stroke, psychiatric illness, myocardial infarction, neonatal resuscitation, radiology services, dermatologic conditions, and more.^3

–7 Indeed, some critical access hospitals that have difficulty recruiting an adequate on-site physician workforce use telemedicine to facilitate the entire range of emergency services in conjunction with on-site primary care and midlevel providers.⁸ But, as hospitals consider the logistics of implementing emergency telemedicine services, EMTALA and its more technical mandates can become a problematic obstacle that prevents some hospitals from moving forward.⁹ This article addresses the most relevant EMTALA-related issues and solutions for hospitals looking to implement emergency telemedicine services.

CLINICAL EXAMPLE: Hospital, located in a physician shortage area, recently contracted with Telemedicine Company to have teleneurologists take call for Hospital patients. Hospital envisions that when a patient with neurologic disease presents to Hospital's ED, on-site healthcare providers will have immediate, 24-7 access to the contracted teleneurologists to help make clinical decisions such as whether a patient with stroke is an appropriate candidate for Tissue Plasminogen Activator (tPA) therapy; how to manage patients with complex multiple sclerosis; or whether a patient with intracranial hemorrhage should be transferred for emergency neurosurgical services, which are not available at Hospital.

Written Agreements, Policies, and Procedures

Most EMTALA violations issued by CMS between 2005 and 2014 involved documentation failure or failure to maintain adequate EMTALA-mandated written policies.² Notably, EMTALA requires certain policies governing the use of telemedicine providers be set out in writing. As an initial matter, therefore, the specific details regarding the nature and scope of services that emergency telemedicine physicians will provide to hospitals should be memorialized in writing. This includes specific written agreements between the hospital and contracting telemedicine physicians, in addition to written internal policies and procedures.

CLINICAL EXAMPLE: Doctor, an emergency room physician at Hospital, called Teleneurologist to assist in managing a patient with confirmed thrombotic stroke. Teleneurologist recommended that Doctor administer tPA to the patient but refused to place the order, believing that professional malpractice considerations required an on-site physician to place the order. Doctor also did not feel comfortable placing the order due to perceived lack of expertise and the two physicians reached an impasse. Did the Hospital have an internal policy or a written agreement with the Teleneurologist to help resolve the conflict?

First, receiving hospitals and telemedicine companies must ensure that governing agreements are specific enough to cover critical clinical expectations between the parties rather than adopting short or generic agreements. Conflicts arising due to failure to reduce clinical expectations to writing could potentially result in delayed treatment as physicians attempt to resolve misunderstandings. Furthermore, EMTALA requires the receiving hospitals to prevent clinical misunderstandings by implementing written policies and procedures, detailing the appropriate use of telemedicine physicians and appropriate division of labor issues. The substance of such policies and procedures should be informed by provider preferences as well as certain telemedicine-specific payor¹⁰ and legal requirements¹¹ that restrict the types of orders, prescribing in which telemedicine providers may engage.

Including Telemedicine Providers on Hospital On-Call Lists and Within Hospital Bylaws

EMTALA requires that Medicare-participating hospitals maintain lists of specialist physicians who will take emergency call.¹ This requirement is distinct from EMTALA's mandate that hospital bylaws specify the types of clinicians who are permitted to conduct the EMTALA-mandated medical screening examination. Although hospitals should ensure that telemedicine physicians are listed in hospital bylaws as “qualified medical personnel” permitted to conduct EMTALA-mandated screening medical examinations, hospitals are not required to place emergency telemedicine physicians on hospital on-call lists—even if those physicians take call for the hospital.⁹

Historically, it has been difficult for hospitals to recruit specialists to take call for reasons such as burnout, inadequate compensation, and the financial risk of providing uncompensated care.¹² Placing telemedicine physicians on EMTALA-mandated on-call lists could certainly help alleviate the stress of filling these rosters, but this may not be the optimal solution for receiving hospitals or telemedicine providers. Most importantly, EMTALA requires that on-call physicians are available to make on-site appearances “within a reasonable time” if requested to do so by an on-site provider.⁹ If an on-call physician fails to appear in person within a reasonable time, this is considered an EMTALA violation of both the on-call physician and the receiving hospital.⁹ Thus, merely placing telemedicine physicians on hospital on-call lists means that hospitals and providers assume the EMTALA obligation for telemedicine physicians to make an on-site appearance within a reasonable time if requested to do so by an on-site provider.

CLINICAL EXAMPLE: Hospital recently hired a locum tenens physician to staff its critically understaffed ED. The locum tenens physician was unfamiliar with emergency telemedicine services and Hospital's use of teleneurologists. On his first shift, a patient with suspected stroke presented to the ED. He contacted the teleneurologists who were listed as the on-call neurology specialists. Upon connecting with the teleneurologist, the physician communicated his clinical impressions and requested that the teleneurologist come as quickly as possible to assume care for the patient who was likely to require admission. Is the teleneurologist geographically available to see the patient in-person? Did the requesting hospital have a policy related to remote teleneurologists that the locums physician simply failed to follow?

Importantly, if an in-person appearance by a telemedicine physician is not feasible, the only safeguard, should they be placed on the receiving hospital's on-call roster, is for the receiving hospital to agree that on-site providers will not make requests for on-site appearances by the telemedicine physicians. In this case, receiving hospitals should consider explicitly including this in hospital policy and in telemedicine provider agreements. Nevertheless, receiving hospitals and telemedicine physicians assume the risk that on-site providers will request an on-site appearance by the telemedicine physician either inadvertently or due to critical understaffing.

Simultaneous Clinical Duties and Telemedicine Physician Unavailability

EMTALA requires detailed arrangements and disclosures regarding physicians who are permitted to take simultaneous call or perform simultaneous clinical duties covering multiple sites. Thus, receiving hospitals and telemedicine providers must consider whether they will permit telemedicine physicians to engage in simultaneous on-call or simultaneous clinical duties at additional hospitals.

Telemedicine providers who do permit telemedicine physicians to take simultaneous call at many hospitals should first consider documenting and implementing a policy for dealing with the situation where the demand for on-call telemedicine physician coverage is greater than the supply of available telemedicine physicians. Given EMTALA's primary mandate that a patient's access to screening and triage not be influenced by financial considerations,¹ telemedicine providers must ensure that triage is occurring in a consistent and equitable manner accounting only for the severity of the simultaneous emergencies.

CLINICAL EXAMPLE: Telemedicine Company contracts with multiple hospitals to provide teleneurology services. Telemedicine Company was experiencing an unusually high call volume one day and was forced to decline or delay teleneurology services at one or more hospitals. Does Telemedicine Company have an EMTALA appropriate policy for properly prioritizing its hospital clients?

Telemedicine providers should ensure that clinical considerations are the driving factors for triage decisions. While it is not clear that nonhospital, nonphysician entities such as telemedicine companies could be held liable under EMTALA, clinical decisions that clearly violate the spirit of EMTALA may open the door to regulatory actions applying EMTALA's mandates.

Telemedicine providers permitting simultaneous on-call duties should also consider receiving acknowledgment from all participating receiving hospitals of any such simultaneous on-call arrangement. This is because each hospital where the physician could experience simultaneous call “must be aware of the simultaneous duties arrangement and must document a back-up plan” should the telemedicine physician be unavailable due to being called to attend another hospital's patients.¹

These “back-up plans” should also inform how ED staff will handle emergency cases when the telemedicine physician becomes unavailable due to telemedicine platform failure. This would be relevant in the circumstance that a telemedicine physician initiates screening and stabilization but services are prematurely interrupted.

Backup policies to address telemedicine provider unavailability would ideally include backup contact information for the telemedicine physicians, a list of secondary call physicians, and patient transfer protocols. If secondary call physicians are not available to make stabilization or transfer decisions, an on-site physician must make those decisions. EMTALA prohibits nonphysician providers from making transfer determinations,⁹ which requires an assessment that the benefits of patient transfer outweigh the risks.¹² As such, documenting detailed backup protocols to anticipate platform failure can help mitigate patient care delays, provider confusion, and EMTALA violations.

Credentialing Telemedicine Providers

Finally, EMTALA requires receiving hospitals to credential each physician who provides telemedicine services to its patients.¹ This includes ensuring that each physician is licensed in the state where the receiving hospital is located.¹

In the context of credentialing emergency telemedicine, physicians who are expected to have limited privileges compared with on-site staff physicians, controversy might arise as to how closely telemedicine physicians must adhere to certain hospital bylaws and medical executive committee requirements. For example, hospitals that generally require physicians to have active Drug Enforcement Agency certification may wish to waive this requirement for emergency telemedicine physicians who will not have ordering or prescribing privileges at the hospital. Hospitals might also wish to waive certain continuing medical education requirements and internal medical-legal and policy training sessions for telemedicine physicians who are receiving equivalent education and training elsewhere. If hospitals fail, however, to require telemedicine physicians to adhere to hospital bylaws and credentialing criteria, this could serve as the basis for an EMTALA violation. Thus, hospitals that wish to waive certain credentialing or existing bylaws requirements for emergency telemedicine physicians should ensure that the modified criteria are memorialized in hospital bylaws to specifically address emergency telemedicine physician credentialing, privileges, and expectations.

Conclusion

Ultimately, when implementing any emergency telemedicine program, both receiving hospitals and telemedicine providers should ensure compliance with EMTALA and its mandates. The primary means of ensuring compliance include incorporating critical clinical details into the services contract, implementing robust written policies that anticipate division of labor issues, the need for backup coverage, triaging, patient transfer protocols, and credentialing issues. With adequate up-front due diligence and meaningful contracting, hospitals and telemedicine providers can avoid common EMTALA liability pitfalls.

Footnotes

Acknowledgments

Neither author received financial support for purposes of preparing this article. Both authors provide legal counsel to telemedicine providers and hospitals contracting for telemedicine services. This material has not previously been presented.

Disclosure Statement

K.L.R. is employed by Jones Day, which provides legal counsel to telemedicine providers and hospitals contracting for telemedicine services. A.G. is employed by Jones Day, which provides legal counsel to telemedicine providers and hospitals contracting for telemedicine services.

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