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ABA Health eSource
 January 2006 Volume 2 Number 5

EMTALA: An Update on Call Coverage and Payments for Services to Undocumented Aliens
by Hilary H. Young, Joy & Young, L.L.P., Austin, TX

Hilary H. YoungDuring 2003 and 2004, the Emergency Medical Treatment and Labor Act (EMTALA) underwent some changes. Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) in November 2003 1 and established a Technical Advisory Group (TAG) charged with reviewing the EMTALA rules and offering recommendations. 2 Section 1011 of the MMA also allocated $1 billion to be spent over the ensuing four fiscal years to reimburse eligible providers for EMTALA-related services rendered to undocumented aliens (referred to here as the Section 1011 program). The Centers for Medicare and Medicaid Services (CMS) adopted revised EMTALA regulations effective November 10, 2003 3 and then revised the EMTALA interpretive guidelines, effective May 13, 2004. 4 On-call coverage continues to pose challenges; the TAG has met only three times; and the Section 1011 program was not implemented until early in the second fiscal year for which money has been allocated.

On-Call Update

Hospitals must maintain on-call coverage in the manner that best meets the needs of emergency department (ED) patients. 5 CMS expects that all specialty services provided by a hospital should be represented in the on-call roster. 6 Yet CMS has set no minimum call requirements and has stated that it cannot require physicians to take call. 7 These contradictory positions create difficulties for hospitals, compounded by a scarcity of certain specialists, both generally and for providing call coverage, and the refusal by many specialists to take call.

One murky issue concerns physicians who refuse to participate in the call roster, but who respond to emergencies for their existing patients. CMS says that physicians who refuse to take call, but who respond to calls from the ED to see their own patients could be in violation of EMTALA, and hospitals that allow specialists to take selective call could also violate the law. 8 Elsewhere, CMS clarifies that physicians are not rendered on call because they happen to be in the hospital visiting their own patients. 9 These positions lead to bizarre interpretations by surveyors and possible tension with state law obligations that physicians have to their patients. For example, consider a patient who arrives at the ED and tells ED staff that he has a regular physician. When ED staff calls the physician, she agrees to see her patient in the ED even though she refuses to take call generally for the ED. A surveyor could cite the hospital for violating EMTALA because the physician is taking call discriminatorily, while the state medical board would expect a physician to see her patient if asked. Because the issue most likely comes up when patients have physicians willing to see them in the ED, the prudent practice is for the ED physician to have primary responsibility for the patient and not involve the patient’s regular physician until it is determined the patient does not have an emergency, or until a decision has been made to admit the patient.

Another frustration occurs with specialists who narrow their practice to a subspecialty and refuse to take call for the broader practice area. For example, some orthopedic surgeons limit their practices to backs or hands. Should an orthopedic surgeon who works only on hands be required to come to the ED to help stabilize a back injury? But can’t the subspecialist provide better stabilizing treatment than the ED physician? Some hospitals are choosing to require all subspecialists to take call for the broader specialty; others are allowing specialists to limit their practice areas for the call roster. In the latter case, hospitals should also reflect the limitation in the physicians’ credentialing files.

CMS says it will consider the following in evaluating hospital compliance with the on-call requirement:

  1. Number of physicians on staff (and in each specialty);
  2. Frequency with which patients need the specialty services;
  3. Other demands on the physicians; and
  4. Provisions made when specialists are unavailable. 10

Most medical staff bylaws require active medical staff members to take call for the ED. CMS expects hospitals to enforce the bylaws or amend them to remove the requirement. But the bylaws are an unwieldy tool for addressing the on-call situation. Physician due process rights can make taking disciplinary action a lengthy, complicated process, and remedies under bylaws are either ineffective or go too far. A hospital that revokes the privileges of all physicians who refuse to take call for the ED can end up without enough physicians on staff, at least in specialties that are already underrepresented, such as orthopedics or neurosurgery. Hospitals and medical staffs have responded in other ways to the on-call frustrations, with varying success:

  1. Scheduling with gaps in coverage for particular specialties;
  2. Providing no coverage in a specialty;
  3. Providing only surgery/medicine call without providing coverage by specialists/subspecialists;
  4. Getting outlying hospitals to assist with pay for call coverage;
  5. Requiring physicians to contribute to a fund to pay those physicians who are willing to take ED call;
  6. Coordinating call schedules with nearby hospitals to assure the most complete coverage across the area;
  7. Using more hospitalists to assist the ED with stabilization.

To pay for call or not to pay for call is a question most hospitals face at some point. According to a recent survey by the American College of Physician Executives, out of 818 responses:

  1. 46% pay for some call;
  2. 44 % do not pay for call;
  3. 22% are considering paying for call;
  4. 64% struggle to get specialists; and
  5. 29% report no problem. 11

The Physician Executive also recently reported average daily stipends compiled by HealthCare Appraiser in Delray Beach, Florida, ranging from $164 for pediatricians to up to $2,500 for neurosurgeons and orthopedists. 12

When hospitals are willing to pay for call coverage, they must grapple with issues such as which specialties to pay, how much to pay, what constitutes fair market value, whether specialists receiving payments can take simultaneous call or schedule elective surgery, and how to adjust when physicians are being paid to provide coverage to more than one hospital at once. Time will tell whether the TAG will develop recommendations to help improve the on-call situation, and if so, whether Congress or CMS will act on them.

Payment for EMTALA Services Furnished to Undocumented Aliens

Section 1011 of the MMA allocated $1 billion to be disbursed over fiscal years 2005-2008 to reimburse hospitals, physicians, and ambulance providers for emergency care provided to undocumented aliens. CMS did not publish a final guidance until May 13, 2005. 13 On July 1, 2005, CMS contracted with Trailblazer Health Enterprises, L.L.C. to administer the program. Trailblazer has been rolling out implementation, but did not begin to accept payment requests for covered services furnished during the third quarter of the first fiscal year until after the second fiscal year began.

CMS will disburse $250,000,000 each of the four fiscal years. Two-thirds of the money is allotted to all 50 states and D.C. based on the undocumented alien population as estimated during the 2000 census. One-third of the money is allotted to the six states with the highest number of undocumented alien apprehensions during the previous fiscal year. The six states for fiscal year 2005 are Arizona, California, Florida, New Mexico, New York, and Texas.

Eligible providers are hospitals participating in Medicare, physicians, or ambulance services (physicians and ambulance providers do not have to participate in Medicare to participate in the Section 1011 program). Eligible patients are undocumented aliens, aliens who have been paroled into the U.S. at a U.S. port of entry for the purpose of receiving eligible services, or Mexican citizens permitted to enter the U.S. for no more than 30 days under the authority of a biometric machine readable border crossing identification card (laser visa). 14 Eligible services are those required by EMTALA and related hospital inpatient and outpatient services. They begin when the EMTALA obligation begins and end once the emergency has been stabilized, even if that occurs after the patient has been admitted and the EMTALA obligations have ended. CMS expects most emergencies to be stabilized within two calendar days; longer stays are subject to medical review. 15

Except for fiscal year 2005, Trailblazer will divide each state’s annual allocation into four equal amounts and pay providers quarterly, and each provider will receive one lump-sum payment. 16 Trailblazer will pay the lesser of the cost of services or amounts payable under the appropriate Medicare program (e.g., inpatient DRGs, physician fee schedule). Hospitals may receive payments for hospital and physician services together, or for only hospital services and a portion of any on-call payments made to physicians. In the latter case, physicians must bill for eligible services they provide.

Providers must submit payment requests on a service-by-service or per discharge basis within 180 days after the close of the fiscal quarter in which the services were provided. There is an exception for the first submission period, however. Trailblazer did not begin accepting submission of payment requests until mid-October 2005, so it has extended the deadline to January 11, 2006 for submission of payment requests for services furnished between May 10, 2005 and June 30, 2005. 17

All payment requests and payments must be made electronically. Claims not submitted in a timely manner will be denied, and there is no appeal process for such denials, although Trailblazer is supposed to be developing a dispute process. If the amount of funds allotted to a state for a quarter is less than the total amount of payment requests, Trailblazer will reduce the payments pro rata. 18

Because the program is a payer of last resort, providers must seek reimbursement from all available funding sources before requesting Section 1011 payment. Such funding sources include federal, state, or local programs; private third-party payers; or payments from patients. Providers must accept payment by Medicaid and other “payers of last resort” as full payment, but can “balance bill” for payment requests not fully paid by other payers. 19

To participate, providers must mail Trailblazer a signed, hard copy enrollment application; as of December 1, 2005, Trailblazer no longer requires providers also to enroll electronically. 20 Physicians and ambulance providers not participating in Medicare must first submit Medicare enrollment applications (CMS-855I, CMS-855R, or CMS-855B) before submitting their Section 1011 applications. The submission of the Medicare enrollment applications does not enroll these providers in the Medicare program, but is required so Trailblazer can confirm that none of the providers are excluded from participating in federal programs. 21 A provider who did not submit an application before November 28, 2005, is not eligible to bill for services furnished between May 10, 2005 and June 30, 2005. Applications received between November 29, 2005 and February 28, 2006, will have an effective date of July 1, 2005. 22 Because payment requests and payments are all made electronically, providers must also submit electronic enrollment forms (EDI, ERA, and EFT forms). 23

Providers must collect and maintain information to support their determination that patients qualify as aliens for whom providers may seek payments. Providers may use a CMS questionnaire, or incorporate the CMS information into one of the provider’s forms. 24 Providers must maintain the documentation, but should not submit it with payment requests. Hospitals must make the documentation available to physicians and ambulance providers upon request. Providers may not delay the medical screening examination and stabilizing treatment to obtain this information; the prudent course is to complete the screening examination and begin stabilizing treatment before collecting the information. 25

Each provider must determine whether the potential payments are worth the trouble of following the procedures to participate. In a National Outreach seminar held in Austin, Texas on September 29, 2005, a CMS representative noted preliminary estimates in California were that the allocation may reimburse providers only about 10-20% of the payment requests submitted. Additionally, CMS estimates that approximately 10% of eligible aliens will not furnish providers with the documentation necessary to support a payment request, and has directed Trailblazer to compensate by adjusting all payments upward by 10%; 26 this number may be grossly underestimated. Consequently, some providers may want to wait to see how the program works. On the other hand, given the fact that the 2005 allocation will be divided over 1½ quarters instead of over four, there may be more money available at the beginning of the program than subsequently.

The Trailblazer website has a wealth of information, forms, and contact numbers. 27 Providers interested in participating in the program should visit the website regularly.


1 Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. 108-173 (MMA).
2 Section 945 of the MMA established the EMTALA TAG. The TAG consists of seven physicians, four hospital representatives (two of which are from hospitals that have been cited for violating EMTALA), two patients, two staff members from Regional Offices (RO), and one State Survey Agency representative, along with the CMS Administrator and Inspector General.
3 68 Fed. Reg. 53262 (Sept. 9, 2003), amending 42 C.F.R. §§ 489.20 and 489.24.
4 CMS State Operations Manual (SOM), Appendix V, found in the Internet-only manuals at www.cms.hhs.gov/manuals.
5 42 C.F.R. § 489.24(j)(1).
6 CMS SOM, Appendix V, commentary under Tag 404 regarding 42 C.F.R. § 489.20(r)(2).
7 Id. Although the TAG has appointed a subcommittee to look at the on-call issues, the group has already issued a recommendation that CMS not make it a Condition of Participation for physicians to take call. See Report Number One to the Secretary U.S. Department of Health and Human Services From the Inaugural Meeting of the EMTALA TAG, March 30-31, 2005, page 5, and Report Number Two to the Secretary U.S. Department of Health and Human Services From the EMTALA TAG, June 15-17, 2005, page 17. Copies of the TAG reports are available at www.cms.hhs.gov/FACA/07_emtalatag.asp.
8 CMS SOM, Appendix V, commentary under Tag 404 regarding 42 C.F.R. § 489.24(j)(1).
9 Id., commentary under Tag 404 regarding 42 C.F.R. § 489.24(j)(2)(i).
10 CMS SOM, Appendix V, commentary under Tag 404 regarding 42 C.F.R. §§ 489.20(r)(2) and 489.24(j)(1).
11 Steiger, Bill, ACPE Poll: Physician Leaders Distressed by Specialist Shortage; On Call Pay Controversial, The Physician Executive, May-June 2005; see also detailed survey results at www.acpe.org/call.
12 Glabman, Maureen, Specialist Shortage Shakes Emergency Rooms; More Hospitals Forced to Pay for Specialist Care, The Physician Executive, May-June 2005.
13 70 Fed. Reg. 25578; the final guidance is available on the CMS website at www.cms.hhs.gov/UndocAliens/01_overview.asp.
14 Laser visas allow Mexican citizens to go no more than 25 miles from the border in Texas, New Mexico, and California, and no more than 75 miles from the border in Arizona.
15 70 Fed. Reg. 25578, 25583.
16 The exception to this is fiscal year 2005. Because of the late start on implementation of the program, providers may submit claims only for services furnished on or after May 10, 2005. Therefore, Trailblazer is dividing the $250,000,000 for the first year into two equal amounts, not four, and applying that money to 1 ½ quarters instead of to four quarters.
17 See www.trailblazerhealth.com/section1011.
18 70 Fed. Reg. 25578, 25588 and 25590.
19 Id. at 25585.
20 www.trailblazerhealth.com/section1011.
21 70 Fed. Reg. 25578, 25585.
22 www.trailblazerhealth.com/section1011.
23 Id.; 70 Fed. Reg. 25578, 25585.
24 Providers may obtain the CMS questionnaire from www.cms.hhs.gov/UndocAliens/01_overview.asp.
25 70 Fed. Reg. 25578, 25586-88.
26 Id. at 25591.
27 www.trailblazerhealth.com/section1011.