Re: Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the
Office of Inspector General’s Civil Monetary Penalty Rules
Dear Mr. Levinson,
On behalf of the American Association of Neurological Surgeons (AANS) and the Congress of
Neurological Surgeons (CNS), we appreciate the opportunity to comment on the above referenced Office
of Inspector General proposed rule. We will limit our comments to the provisions related to the
Emergency Medical Treatment and Labor Act (EMTALA) and the definition of “responsible physician.”
The language in the proposed rule discusses physician obligations created by EMTALA, including the
responsibilities for on-call physicians. In changing the definition of “responsible physician,” the OIG states
that it is seeking to clarify that:
[O]n-call physicians at any participating hospital subject to EMTALA, including the
hospital the individual initially presented to and the hospital with specialized capabilities
or facilities has received a request to accept an appropriate transfer, face potential CMP
and exclusion liability under EMTALA…The current definition of ‘responsible physician’
also provides for on-call physician liability. We propose to revise the definition to clarify
the circumstances when an on-call physician has EMTALA liability. An on-call physician
that fails or refuses to appear within a reasonable time after such physician is requested
to come to the hospital for examination, treatment, or transfer purposes is subject to
EMTALA liability. This includes on-call physicians at the hospital where the individual
presents initially and requests medical examination or treatment as well as on-call
physicians at a hospital with specialized capabilities or facilities where the individual may
need to be transferred. In addition, an on-call physician at the hospital with specialized
capabilities or facilities may violate EMTALA by refusing to accept an appropriate
transfer.
The AANS and CNS acknowledge the requirements that EMTALA places on physicians who are on-call
to the emergency department. While not made clear in the proposed rule, we urge the OIG to ensure
that enforcement of EMTALA’s rules regarding “responsible physician” are consistent with the regulations
promulgated by the Centers for Medicare & Medicaid Services, including the Interpretive Guidelines —
particularly Tag A-2404/C-2404. Under this section of the Interpretive Guidelines, it is clear that the
obligation is on the hospital to develop written policies and procedures regarding the availability of on-call
physicians, including steps to be taken if a particular specialty is not available or the on-call physician
cannot respond due to circumstances beyond his or her control. With regard to the availability of on-call
physicians, the guidelines specifically state:
…
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