DETERMINE HOW HOSPITALS CAN BEST COLLABORATE TO PROVIDE
EMERGENCY SPECIALTY COVERAGE.

Individual hospitals cannot solve the problem of emergency specialty coverage alone.
Even hospitals that offer incentives to physicians to provide emergency services report
difficulty ensuring adequate coverage of their emergency departments. Hospitals need
to devise strategies that address the imbalance between the demand for emergency
specialty coverage and the supply of physicians who are willing to provide these
services. Joint efforts among area hospitals could provide some relief for this
complicated problem. Examples of such efforts include sharing lists of physicians who
are available for emergency department coverage and coordinating on-call schedules
with other area hospitals.

Recognizing the need for collaboration among hospitals in order to promote access to
trauma and emergency care, Congress authorized the Trauma Care Systems Planning
and Development Act of 1990 (P.L. 101-590). Five million dollars has been
appropriated for FY 1992 to help States develop, implement, and improve regional
trauma care systems through a competitive grant program. This legislation provides
the opportunity for States to begin to address regional concerns about the availability
of specialty physicians, facilities, and transportation for emergency care.

DETERMINE PHYSICIANS’ RESPONSIBILITY FOR PROVIDING
EMERGENCY SPECIALTY CARE.

Most hospitals have bylaws that require physicians to provide emergency care, yet they
still report difficulty ensuring specialty coverage. Generally, medical staffs are
responsible for enforcing this requirement, leaving hospital administrators with little
leverage other than persuasion to assure compliance. Hospital administrators and
medical staffs need to reach consensus on how much discretion physicians should have
in deciding to provide emergency service.

We urge hospital administrators to work with their medical staffs to develop systems
for ensuring specialty coverage in their emergency departments. Such systems should
clearly outline specialty physicians’ obligations to provide emergency specialty
coverage.

ADDRESS PHYSICIAN PERCEPTIONS ABOUT MALPRACTICE RISKS
ASSOCIATED WITH EMERGENCY CARE.

There are no data that indicate a higher risk of malpractice in the emergency
department, yet specialty physicians believe that they increase their chances of being

12



Publigy

izen

Buyers Up * Congress Watch + Critical Mass * Health Research Group + Lingation Group
Ralph Nader. Founder

June 12, 1992

Richard P. Kusserow

Inspector General

Department of Health and Human Services
Washington, DC 20201

BY FAX: (202) 619-0160 (Attention: Emilie Baebel)
Dear Dick:

Enclosed are our comments on your draft report "Specialty
Coverage in Hospital Emergency Departments," as requested in your
letter of April 29, 1992. We apologize for the delay in getting
back to you, but we learned from your staff that the deadline for
comments had been extended by a few weeks.

On the whole, this is an excellent report on a topic critical
to ensuring access to emergency services by people with all types
of emergency medical needs. We are extremely interested in this
and other emergency service issues flowing from our work on
enforcement of the federal "patient dumping" law. In connection
with this work, we have spoken to a number of professionals working
in emergency medical systems about the factors affecting access to
such care. One of the problems most often cited by this group is
the lack of specialty coverage in emergency rooms. Thus, we were
particularly pleased to learn that you were working on this issue.

We urge you to use this report as a springboard for focusing
widespread attention on this and other proplems impeding access to
emergency care. If we can be of assistance in that effort, please
do not hesitate to contact us.

Sincerely,
Boom Bir 1
Sidney M. \Wolfe, MD Joan Stieber
Director \) Staff Attorney

PUBLIC CITIZEN HEALTH RESEARCH GROUP
cc: Russell W. Hereford, Project Leader, Boston Region

-nelosure

-12
2000 P Street NW + Washington D.C 20036 * (2021833. 3000



Date

From

Subject

To

Se DEPARTMENT OF HEALTH & HUMAN SERVICES Public Health Service

Memorandum

Deputy Assistant Secretary for Health Management Operations

O1G Draft Report “Speciaity Coverage in Hospital Emergency
Departments," OE1-01-91-00770

Deputy Inspector General for Evaluation and Inspections, OS

We have reviewed the subject audit report. Although the O1G
draft inspection report has no recommendations, we have the
following comments on it.

°

While this report provides some evidence that there are
significant problems related to specialty coverage in
emergency departments, it also highlights a need for
further definition of the exact nature and scope of the
problem and investigation of possible solutions.

The OIG conclusions are based on mail surveys and
interviews with various professionals, i.e., hospital
administrators and physicians, and their perceptions of
the problem and its causes. Although such surveys
document that providers have heightened concerns about
providing emergency department coverage, they do not
describe scientifically the nature and extent of the
problem. We believe that the description of the survey
methodology, which included the selection of four
subspecialties, should be expanded. The 57.8 percent
response rate may cast some doubts on the survey’s
findings.

As indicated above, primary attention was focused on four
subspecialties: orthopedic surgeons, neurosurgeons,
plastic surgeons, and obstetricians/gynecologists. The
C1G report does not provide any evidence that
pediatricians were surveyed as a group. However,
pediatricians are included on two statistical tables
(FIGURE 1 and FIGURE 2) on the O1G findings.
Psychiatrists are not mentioned at all. The particular
needs of children and the whole range of psychiatric
emergencies warrant increased attention.

The report also does not address the differences related
to the profit and nonprofit status of the hospitals that
would have an effect on results. The OIG statement that



Richard P, Kusserow
June 15, 1992 - page 2

State, and local levels. Individual hospitals cannot solve the
problem alone; all Parties must work together to develop
effective systems for assuring specialty coverage.

To the extent that time permits, we suggest a slight expansion
of the report in the following four areas to enhance its
contribution to resolving this critical issue.

1. Given that federal statutes designed to ensure all
Americans access to emergency services are directly
relevant to the current debate, a more detailed discussion
of federal statutory provisions relating to specialty
coverage would provide critical context to the issues
raised in the final report.

2. To the extent that the OrG's survey of hospital
administrators revealed any suggestions to enlist
physician participation, their dissemination in the final
report would contribute to and inform hospital practices,
AHA would be pleased to work with the OIG in communicating
models to hospitals and their communities, and to discuss
potential demonstration programs testing community-wide
strategies to ensure access to specialty care.

3. Geographic areas with a limited supply of specialty
physicians face added difficulty in maintaining coverage
.for emergency departments. Clarifying the extent to which
Coverage difficulties result from geographic shortage
areas versus what appears to be the inability or
unwillingness of specialty physicians to be on call, would
be useful to the design of appropriate area-specific
Solutions.

4. A summary of the OIG’s November 1991 report on "State
Prohibitions on Hospital Employment of Physicians" would
complement the information provided in the draft report
currently under review. The November report reviewed
State lawe that might be interpreted as limiting
hospital's employment cf physicians and evaluated the
resulting impact on heanitals’ capacity to provide
Specialty coverage in emergency departments,

If you have questions or comments, please contact Peggy
McNamara, Division of Ambulatory Care (312/280-5921),

Tom Granatir, Division of Health Policy (312/280-6183) ,
John Steiner, Office of General Counsel (312/280-6510),

or Pat Surdyk, Division of Medical Affairs (312/280-6116) .

B- 16



Two recent studies document these growing difficulties on the State and county levels.
In a Massachusetts study, more than 90 percent of hospitals reported specialty
coverage problems in the 6 months prior to the survey. A Los Angeles County
study provides a disturbing example of the adversity that can befall a local emergency
care system that faces a shortage of specialists. With a population of almost 9 million,
Los Angeles County contains only 120 practicing neurosurgeons. The on-call problem
is said to be so widespread there that a majority of hospitals have at least considered
closing their emergency departments," and as of August 1991, 21 of the county’s 89
hospitals had closed their doors to neurosurgical emergencies. As ambulances have
been diverted to hospitals that continue to accept neurosurgical cases, the pressures on
these hospitals to provide coverage have become acute, leading to threats that they
will have to limit their emergency coverage or close their doors to neurosurgical

care.

Hospitals’ inability to ensure emergency specialty coverage can have serious
consequences for the public’s access to these services.!> The situation can result in
the downgrading or closure of emergency departments, diversion of ambulances to
other facilities, or treatment of serious trauma cases by physicians without the
appropriate training.

HOSPITALS ARE LIKELY TO CONTINUE TO EXPERIENCE DIFFICULTY
OBTAINING SPECIALTY COVERAGE IN THEIR EMERGENCY
DEPARTMENTS.

‘Sixty-six percent of specialty physicians responding to our survey fear increased malpractice
Kability as a result of covering hospital emergency departments.

A widespread perception among specialty physicians is that emergency patients--many
of whom are indigent--are more likely to sue than are other patients. An orthopaedic
surgeon from California told us that emergency department coverage "is pure public
service--tough patients who sue." According to a plastic surgeon "the problem [of
emergency specialty coverage] will get worse as long as anyone can sue a physician for
an adverse result. The emergency room patients carry the greatest risk here."

Emergency care involves treating patients with whom physicians have not established a
relationship. Physicians believe that these patients run high risks of adverse outcomes
because many have not received adequate health care prior to their appearance in the
emergency department. One hospital administrator illustrated this problem by
describing the situation he faces with obstetricians in his hospital. He explained that
the obstetricians are reluctant to provide emergency coverage because they may be
called in to deliver babies for women who have received no prenatal care. These
obstetricians worry that they will be sued if these women experience complications or
poor outcomes.



| am enclosing a copy of the Academy's position statement,
"Improving America's Trauma Care System," which emphasizes our
commitment to work collaboratively to raise the quality and
accessibility of trauma care in this country.

Thank you again for the draft report, and we look forward to seeing
the completed project.

Sincerely,

Robert N. Hensinger, MD
President

cc: Lawrence B. Bone, MD

cc: Robert A. Winquist, MD
cc: Richard F. Kyle, MD

cc: Bruce 0. Browner, MD

cc: Robert A. Worsing, Jr., MD
cc: Peter G. Trafton, MD

ec: Colin C. Rorrie, Jr., Ph.D.

American Academy of Orthcfaedic Surgeons





Page two

‘In addressing the elements of the Office of Inspector
General’s report the individual items excerpted from it.will be
in bold print and the comments will follow.

Define the essential elements of an effective community-wide
emergency care systen.

The problem appears to be one of resource allocation
rather than scarce resources. Simply increasing the supply is
not a solution.

49% of hospitals that offer neurosurgery in their
emergency departments encounter difficulty ensuring coverage.

72% of rural hospitals cite a shortage of specialty
physicians.

36% of urban hospital administrators said that
specialty physicians cover too many hospitals.

Inner city hospitals need specialty physicians to
provide trauma care for penetrating injuries such as gunshot or
stab wounds associated with crime, drug wars, and gang violence.

With a population of a million, Los Angeles County
contains only 120 practicing neurosurgeons. Twenty-one of the
county’s 89 hospitals had closed their doors to neurosurgical
emergencies. :

Not every hospital that offers emergency care or has a
neurosurgical department should necessarily offer neurotrauma
care. There have been major developments in the care of
neurotrauma victims prominent among these being CT and MRI
scanning as well as sophisticated intensive care units. Despite
these advances, we find trauma victims deposited at hospitals
with very minimal meurosurgical capabilities. Historically, the
neurosurgeon has been under pressure from both hospital
administrators and medical staff members to cover these emergency
rooms.

Rural hospitals are correctly noted in the report to
have too small a service area to support high cost specialties.
What is needed is stable, reliable, referal patterns to
neurosurgeons and other specialists. We have to better plan to
send the problem, of which there are many, to the neurosurgeon
rather than sending the neurosurgeon, of whom there are few, to
the problem. Dr. James Bean who practices in Lexington, Kentucky



Page six

Forty-seven percent of these specialty physicians consider the
Federal (COBRA) patient transfer law to be a serious drawback to
participating in emergency care.

u~There are legitimate times when we are tied up in
surgery and not available...........(but) the Federal patient
transfer law does not address such a problem."

As indicated above COBRA requirements are viewed with
fear by many specialty physicians. This, especially, relates to
the spectre of a new body of liability law now being created
under federal sanction. The mere occasional use of a facility
for neurosurgical procedures, or the presence of a neurosurgeon
on that staff, does not qualify that institution for optimal
neurosurgical complex medical care. The Federal patient transfer
law has the effect of restricting transfers for legitimate
reasons as well as for the occasional illegitimate reason. The
question arises as to whether COBRA cause more interference with
orderly and efficient planning of emergency care than it prevents
"patient dumping".

Federal regulations need to be clearly written so that
they re-assure on call physicians. Neurosurgeons need to know
that if they are willing to be "on call" that they will not
suffer adversely from either Federal sanctions or increased civil
liability suits engendered by COBRA. Failing this, the Federal
transfer laws may result in limiting public access to specialty
physicians rather than enhancing it.

Sixty-six percent of specialty physicians responding to our
survey fear increased maipractice liability as a result of
covering hospital emergency departments.

Research to determine the incidence of malpractice
claims arising from emergency care could fill an informational
void. -

Hospitals can work with insurance companies to
institute effective risk management strategies.

Examples of such approaches include a single master
insurance policy covering both the hospital and affiliated
physicians.

The prospect of increased exposure to medical
malpractice claims, whether a real or perceived danger, has to
have both a short term and long run solution before those who
deal with trauma are going to be willing to give a wholehearted



inspector General Robert P. Kusserow
May 29, 1992
Page 2

Determining how hospitals can best collaborate to provide emergency specialty coverage
would be useful. it would be more useful if the report indicated who should do this and
how it should be done. We believe perinatal regionalization and transport for obstetric
services should be described as part of this recommendation.

We also question the practicalities of sharing on-call lists. Do these physicians become
credentialled at both hospitals? Another problem is how often physicians would be
required to be on-call. Obstetrician-gynecologists have frequent interruptions in their
practices due to deliveries, and increasing the on-call burden raises serious problems.
In addition, they often practice in more than one hospital, which can become a logistics
Cifficulty.

Although we agree with the need to determine physicians’ responsibilities for providing
emergency care, we must express caution about requiring on-call services. We have
great concerns about the number of obstetrician-gynecologists who are giving up
obstetrics. They do so for many reasons. Adding "to avoid providing on-call obstetric
services” to the list will not help to assure adequate specialty coverage. A better
approach is for hospital and medical staff to work together to develop a way of assuring
adequate coverage. A solution designed to meet the local needs based on the available
staff resources is preferred. In some cases, the issue may be money, in other cases,
malpractice. We even heard of one case where a new staff lounge was part of the
solution. We shouldn't underestimate the value of local negotiations.

The recommendation on malpractice is particularly weak. Although more study is
recommended, the assumption appears to be that it is a "perception" problem, not a real
one. The only study cited is one that dea/s with the indigent, not emergency care. A
number of states have addressed the liability problem in emergency obstetric care by
providing the physician some protection from liability. This option should be explored in
the report. Also, the report might recommend that hospitals consider providing the liability
coverage for physicians providing emergency care services. If, as the report states, it
is a "perception" problem, such coverage should prove to be inexpensive.

The reference to an ACOG study on page 7 needs to be clarified. The study looked at
suits resulting from in-hospital births and compared obstetric suit rates for privately
insured patients with those for women whose care was paid by Medicaid. The scope of
the study was much more limited than the report suggests. Also, there is no such entity
ae the “Northern California Chapter of ACOG.” The reference should be to ACOG District



Methodological Issues

The OGC and the PHS raised questions about our selection of the four specialties
included in the physician survey. The PHS questioned the power of our findings
because of a 57 percent response rate on the survey of specialty physicians. The PHS
also questioned our presentation of data on pediatrics in Figures 1 and 2, since this
specialty was not included in our survey of physicians.

We selected the four specialties examined in this report on the basis of earlier research
that showed that hospitals encounter particular difficulty attracting physicians in these
Specialties for emergency coverage. We have expanded the methodological appendix to
clarify this point.

The response rate for the survey of hospital administrators was 75 percent. Those
responses form the basis for two of the three major findings, and five of the eight
subfindings. We believe that the data from the survey of specialty physicians are sufficient
to use as we report them. The comments we received from the medical specialty
associations--about malpractice risks, financing emergency care, and the Federal Patient
Transfer Law--further support our identification of these as primary problems that
specialty physicians perceive with emergency department coverage.

The data presented in Figures 1 and 2 are derived from the survey of hospital
administrators, as the subtext in these figures indicates. The percentage of hospitals
reporting that they encounter difficulty ensuring emergency coverage for pediatrics was
sufficiently high that we thought it important to report data on this specialty.

Other Issues for Research and Examination

Several of the organizations that responded to the draft report identified a number of
research topics that would further elucidate emergency specialty coverage issues.
These topics include collecting data on model programs, identifying factors that might
distinguish different hospitals’ ability to attract specialty physicians, assessing the extent
to which coverage difficulties result from geographic shortage areas versus inability or
unwillingness of physicians to be on call, and describing the role of the emergency
department in meeting primary care needs.

We believe that these questions deserve further research and analysis. However, they

exceed the scope of this report, and we do not address them here. We encourage other
organizations to explore these issues as they undertake further research in this area.

16



COMMENTS ON THE INSPECTOR GENERAL'S DRAFT REPORT ON
"SPECIALTY COVERAGE IN HOSPITAL EMERGENCY DEPARTMENTS"

Submitted by Joan Stieber, JD, MSW, on behalf of Public Citizen
Health Research Group, June 12, 1992.

On the whole, this is an excellent report on an important
topic. We have just a few suggestions on additional points that we
would like to see addressed. While some of these questions may be
beyond the scope of the current project, we suggest they be
considered as topics for further study.

(1) Speciality services offered in emergency rooms: The draft
report looks at ensuring specialty coverage in hospitals that offer
particular specialty services in their emergency rooms. However,
it does not address the question of how it is determined what
services are offered in the emergency room.

The Florida legislature is currently considering a hospital
licensure bill that includes a provision on this topic, which may
be instructive to review as~sample legislation. It basically
requires hospitals that bill for particular services to make the
same services available on an emergency basis, either directly or
through contract with another facility. Thus, hospitals would be
obligated to provide the same services to emergency patients as are
available elsewhere in the hospital. While not all specialists
need be available every day, hospitals would have to ensure access
to specialty services within a regional system. For further
information on this bill, contact its legislative sponsors: Florida
Representative Elaine Bloom, staff: Mike Hansen or Lucy Bloom
(House Health Care Committee) at (904) 488-7384; and Florida
Senator Jeanie Malchon, staff: John Wilson or Wanda Carter (Senate
Health and Rehabilitative Services Committee) at (904) 487-5824,

(2) Collaboration between urban and rural areas: The draft report
notes that the specialty coverage problem is exacerbated for
hospitals in rural areas. In discussing the need for regional
collaboration (on page 12), it may be helpful to stress the need
for such agreements between urban centers and their adjacent rural
areas. Perhaps a few good models of urban-rural collaboration
could be described.

(3) Concentrations in particular hospitals: Another regional
Planning issue is distribution of coverage within a regional area.
Are specialty doctors concentrated in particular hospitals that may
be viewed as more desirable than’ others? Apart from doctors'
attraction to urban university and teaching hospitals (which is
mentioned), what can be learned about factors that distinguish one
nospital from another in the ability to attract specialty
physicians?

B-13



physicians are available for serious emergency cases in which their special skills are
required.

Determine how hospitals can best collaborate to provide emergency specialty coverage.

Individual hospitals cannot solve the problem of emergency specialty coverage alone.
Hospitals need to devise strategies that address the imbalance between the demand
for emergency specialty coverage and the supply of physicians who are willing to
provide these services. Examples of such efforts include sharing lists of physicians who
are available for emergency department coverage and coordinating on-call schedules
with other area hospitals. The Trauma Care Systems Planning and Development Act
of 1990 (P.L. 101-590) offers an opportunity for States to address regional concerns
about the emergency care system.

Determine physicians’ responsibility for providing emergency specialty care.

Hospital administrators and medical staffs need to reach consensus on how much
discretion physicians should have in deciding to provide emergency service.

Hospital administrators need to work with their medical staffs to develop systems for
ensuring specialty coverage in their emergency departments.

Address physician perceptions about malpractice risks associated with emergency care.

Steps that might address their concerns include research to determine the incidence of
malpractice claims arising from emergency care, educational programs directed at
physicians, and effective risk management strategies.

COMMENTS

We received written comments on the draft report from the Office of General
Counsel (OGC), the Health Care Financing Administration (HCFA), and the Public
Health Service (PHS), and verbal comments from the Office of the Assistant Secretary
for Planning and Evaluation within the Department of Health and Human Services.
We also received written comments from Public Citizen Health Research Group, the
American Hospital Association, the American College of Emergency Physicians, the
American College of Obstetricians and Gynecologists, the American Academy of
Orthopaedic Surgeons, and the Joint Council of State Neurosurgical Societies, and
verbal comments from the American Medical Association. The written comments are
reproduced in full in appendix B.

Within the Department, HCFA and OGC commented that we could aid in dispelling
misconceptions about the Federal Patient Transfer Law by clarifying the language that
appeared in the draft text; we have clarified our description accordingly.

The PHS and OGC raised questions about our methodology, including the selection of

the four specialties that we surveyed; we have clarified the methodological appendix to

iii



Page 3
Technical Comments

Page 8, Second Paragraph. In keeping with our comments on the Federal patient
transfer law, we suggest the following statement be revised to acknowledge that meting

out penalties is dependent upon the circumstances of an individual case and upon
existing hospital policies:

But if a physician agrees to be on call for emergency duty
and fails or refuses to appear at the hospital within a
reasonable period of time after notification, the physician is
subject to penalties under the law.



sued by providing emergency care. Steps that might address their concerns include the
following:

(1) Research to determine the incidence of malpractice claims arising from
emergency care could fill an informational void, helping to clarify whether this
perception is correct. Hospitals could then offer educational programs to their
specialty physicians about the actual incidence of malpractice.

(2) Hospitals can work with insurance companies to institute effective risk
management strategies. Such actions could help to allay specialty physicians’
concerns about emergency care, and enhance hospitals’ ability to attract specialty
physicians. Examples of such approaches include a single master insurance policy
covering both the hospital and affiliated physicians, and the creation of multi-
hospital risk pools.

13



APPENDIX B

DETAILED COMMENTS ON THE DRAFT REPORT

In this appendix we present the full comments of all parties that responded in writing
to the draft report. The comments offer a wide range of views and pertinent
information bearing on the issues presented in our report. We urge the reader to
review them carefully. In order, the comments presented in this appendix are from
the following:

Page
The Office of General Counsel .......... 0.0. c eee eee cece e eens B-2
The Health Care Financing Administration ............ 0.00.0 e cece cence B-4
The Public Health Service 2.0.0... 0. cece eee eecee eee eee eee ees B-9
The Public Citizen Health Research Group ............ 00 .e cece eee eee B-12
The American Hospital Association ......... 0.0.0.0 e eee cece eee B-15
The American College of Emergency Physicians ..............000.000005 B-18
The American College of Obstetricians and Gynecologists ................. B-20
The American Academy of Orthopaedic Surgeons .............0000. 0005 B-23

The Joint Council of State Neurosurgical Societies .............0..00000. B-27



The issues these organizations raise need to be addressed to resolve emergence department
specialty coverage problems. Many of these issues also require that hospitals and their
medical staffs actively cooperate in examining and enforcing the bylaws that govern the
provision of all services, including requirements for on-call coverage.

Within the Department, we believe that opportunities exist within PHS to place concerns
about further definition of the scope and nature of this problem on the health policy
research agenda. As the operating division within the Department responsible for
implementing the Trauma Care Systems Planning and Development Act, and for funding
research through the Agency for Health Care Policy and Research, PHS is in a unique
Position to encourage examination of these issues. The demonstrations described by
HCFA also appear to offer models that might be replicated elsewhere to address
emergency service delivery. We encourage the dissemination of results from
demonstrations and research that explore emergency department specialty coverage as an
important way to clarify these issues.

Financing Emergency Care

The organizations representing the specialty physicians emphasized the importance of
financing issues in problems of emergency care. They cite financial disincentives for
performing certain procedures and examinations, the structure of reimbursement for
different types of medical services and specialties, and the high uncompensated care
burden in emergency departments.

The points that these groups raise further verify our discussion about the financial
drawbacks of emergency department coverage for many specialty physicians. As we also
note, meaningful reform of the nation’s health care system could provide some relief from
these problems. Resolving the debate over fundamental financial reform in the nation’s
health care system exceeds the scope of this inspection.

Malpractice

The PHS, ACOG, and JCSNS criticized our discussion of malpractice issues. They
question whether further research into the incidence of malpractice will yield useful
information for resolving physicians’ concerns about increased exposure to malpractice
claims arising from emergency care. The ACOG and JCSNS encouraged further
exploration of alternatives, such as State initiatives to provide physicians some
protection from liability in emergency obstetric care and to free trauma surgeons from
malpractice risk if the trauma service meets certain standards.

We raise the issue of malpractice in this report as a leading concern cited by the
Physicians we surveyed. We do not claim to have solutions to concerns raised about
malpractice liability; rather, we encourage development of data to fill an informational
void about malpractice risk in emergency departments. We certainly encourage analysis
and dissemination of information on options for addressing these concerns, including the
success of State programs that provide protection from liability for emergency care.

15





Four percent of hospitals guarantee physicians a minimum reimbursement rate for
services rendered in the emergency department. This approach is an attempt to
address physicians’ concerns about inadequate payment for emergency services.
Another administrator we spoke with estimates that his hospital spends $500,000 per
year for such guarantees. These funds come directly out of the hospital’s bottom line
and are not recognized as part of its charity care contribution.

Six percent of hospitals report that they address specialty physicians’ concerns about

malpractice coverage by paying malpractice premiums for coverage in the emergency
department. In these cases, the hospital adds specialty physicians to its professional

liability policy.

Administrative strategies are designed to address other concerns that physicians have
raised. In response to specialty physicians’ concerns about stress and the disruptive
nature of emergency service, about ten percent of hospitals limit the frequency of on-
call service. While this practice has the immediate benefit of decreasing the burden
on individual physicians, it does not ensure that a hospital will be able to provide
emergency specialty coverage on a daily basis. Seven percent of hospitals have
attempted to reduce the administrative burden of emergency care by offering direct
hospital billing of emergency patients for specialty physicians. This practice provides
administrative support by including the physician’s services on the hospital bill.

The effectiveness of these incentives remains unclear. Forty-eight percent of hospitals
offering incentives report growing difficulties in providing specialty coverage over the
past two years, compared to 30 percent of those that do not offer special incentives.
On the other hand, it may be that the difficulties these hospitals face drove them to
offer incentives in the first place.

10



Page four

faced with increasingly perplexing choices as to what role they
should play in the delivery of medical care. Thus, among other
things, hospitals will be careful not to drive away those
patients and physicians who maintain the institution’s viability
by overburdening the hospital surgical suite and intensive care
units with trauma patients to the exclusion of more elective
cases.

In conclusion to this portion of the report we would
answer:

There has to be a limitation on the number of hospitals
that accept neurotrauma victims. Many hospitals do not have the
neurosurgical expertise nor are they willing to devote the
economic resources such as sophisticated ICUs, 24 hour operating
room crews, 24 hour availability of CT scanning, etc. to deliver
the best of trauma care that our public deserves. Thus, we must
begin to identify those hospitals which have the capability and
are willing to undertake the commitment to trauma care and fuse
them into a politically homogenous and integrated trauma system.
In this respect, we should encourage hospitals where
neurosurgeons congregate to become part of an organized system of
trauma care.

Forty-four percent of specialty physicians responding to our
survey believe that reimbursement for emergency services is
inadequate.

Many reported uncompensated care levels as high as 50
or 60 percent of gross patient charges.

The facts are there has to be some provision for
uncompensated care both for hospitals and specialty physicians.
Without such a realistic approach to the problem no trauma system
is going to endure very long. The data regarding medium incomes
for different surgical specialties is misleading. Neurosurgeons
that provide the bulk of ER coverage are likely to be in the
lower income categories. In Los Angeles County 1/3 of the
patients seen in emergency rooms have no funding and another 1/3
are funded by Medi-Cal or Medicare. These third party payors do
not approach the cost of providing emergency care for hospital or
physician.

Further, it seems all to likely that Medicare payment
reform and the expected transfer of the RBRVS scale to private
payor schedules will soon reduce the neurosurgeons income
significantly making the reimbursement issue even more important.



some hospitals’ abilities to provide emergency specialty services. Consequently, we
decided to expand that study to include a separate analysis of these other factors and
hospitals’ efforts to address them.

METHODOLOGY
We have gathered our information from the following sources (see appendix A):

(1) A mail survey of a stratified national random sample of 598 hospital
administrators regarding hospital emergency department coverage; 447 responded
(75 percent);

(2) A mail survey of a stratified random sample of 837 specialty physicians--
orthopaedic surgeons, neurosurgeons, plastic surgeons, and obstetricians/
gynecologists--regarding hospital emergency department coverage;

477 responded (57 percent);

(3) Interviews with hospital administrators, directors of hospital emergency
departments, staff of medical and specialty societies, and hospital association
officials; and

(4) A review of policy literature and legislation related to hospitals’ provision of
emergency medical services and trauma care.

We conducted our study in accordance with the Interim Standards for Inspections
issued by the President’s Council on Integrity and Efficiency.



Comments of the Health Care Financing Administration (HCFA)
on Office of Inspector General (OIG) Draft Report: "Specialty
Coverage in Hospital Emergency Departments,"
QEI-01-91-00771

General Comments

Misconceptions About Federal Patient Transfer Law. Nearly half of the physicians
surveyed for this report said the Federal patient transfer !aw is a serious drawback to

participating in emergency care (page 8). Letters and phone calls addressed to HCFA
from health providers have also demonstrated that misconceptions about this law have
contributed to a reluctance among specialty physicians to provide emergency services. In
particular, we believe there is a widespread misperception that this law, codified as
section 1867 of the Social Security Act, includes specific requirements for physicians on a
hospital on-call panel.

Section 1867 merely requires that Medicare-participating hospitals’ policies provide for
their ordinarily available services to be available for emergency patients. It does not
provide specific direction on what these services must be, or how on-call panels must be
designed. Since the imposition of sanctions under this law depends on evaluation of each
hospital’s established roster of services, it is highly unlikely physicians would be
immediately subject to repercussions. Many physician concerns arising from the law
relative to participation on on-call panels are not justified, such as beliefs that failure to
be immediately available for an emergency at one hospital when providing emergency
care at another location will result in automatic application of sanctions.

To aid in dispelling such misconceptions about this law, we suggest that OIG clarify this

eport to reflect the extent of the law’s requirements for hospitals with varying scopes of
service. Our efforts to undo such misconceptions are also continuing. HCFA plans to
issue regulations or guidelines which will serve to interpret section 1867. We believe the
release of such materials will help alleviate confusion among physicians, hospitals, and
the community as iarge.

Malpractice Liability. We agree with OIG that there is widespread interest in the topic
cf malpractice liability faced by emergency room physicians by specialty and payer
ages 6-7). Previous studies have shown that physicians’ perceptions of possible
alpractice liability from Medicaid patients have been inaccurate. However, no research
has examined differences in liability across specialties in an emergency room setting.



APPENDIX C

ENDNOTES

1. Robert S. Stern, Joel S. Weissman, and Arnold M. Epstein, "The Emergency
Department as a Pathway to Admission for Poor and High Cost Patients," Journal of
the American Medical Association, 266, no. 16 (October 23/30, 1991), p. 2238.

2. David W. Baker et al., "Patients Who Leave a Public Hospital Emergency
Department Without Being Seen by a Physician," Journal of the American Medical
Association, 266, no. 8 (August 28, 1991) p. 1085.

3. Hospital Association of Southern California, Los Angeles County Medical
Association, County of Los Angeles Department of Health Services, Study of Medical
Specialist Emergency On-Call Practices of Hospitals in Los Angeles County, December
1990.

4, U.S. Department of Health and Human Services, Office of Inspector General, Use
of Emergency Rooms by Medicaid Recipients, OEI-06-90-00180, March 1992.

5. 42 U.S.C. sections 1395cc and 1395dd.

6. U.S. Department of Health and Human Services, Office of Inspector General, State
Prohibitions on Hospital Employment of Physicians, OEI-01-91-00770, November 1991.

7. American Medical Association, Physician Characteristics and Distribution in the U.S.,
1990.

8. In this report we focus on the staffing difficulty encountered by hospitals that offer
specialty services. In addition, a substantial number of hospitals do not provide certain
specialty services at all. Based on our survey, 78 percent of rural hospitals and 21
percent of urban hospitals do not offer neurosurgery services; 72 percent of rural
hospitals and 12 percent of urban hospitals do not provide plastic surgery services; 35
percent of rural hospitals and 8 percent of urban hospitals do not offer pediatrics; 35
percent of rural hospitals and 5 percent of urban hospitals do not offer ob/gyn
services; and 36 percent of rural hospitals and 2 percent of urban hospitals do not
offer orthopaedic surgery.

9. Providing specialty coverage at multiple hospital emergency departments is a
common practice among physicians. The number of hospitals that is considered too
many for emergency department coverage is highly subjective and depends on a how
busy the emergency department is and whether other attending staff are available. In
our survey of physicians in four specialties, we found that of those who provide
emergency care, 32 percent are on-call at 2 hospitals, 15 percent at 3 hospitals, and 12
percent at 4 or more hospitals.



Page 2 - Richard P. Kusserow

If you have any questions, please contact Leslie Shaw at
(202) 619-1306.

aN
Michael J. Astrue Co

General Counsel

Attachment



TABLE OF CONTENTS

PAGE
EXECUTIVE SUMMARY
INTRODUCTION ....... 0. c eee een n eee beeen 1
FINDINGS 2.0.0... ccc cece eee ene enn n eee eeee 3
Hospitals encounter difficulty ensuring emergency coverage ............... 3
Problems are likely to continue .......6.. 0... cece cee eee eee 6
Current coverage strategies are inadequate ........ 00... eee eee eee 9
KEY AREAS FOR ACTION .... 06060 eee 11
COMMENTS ON THE DRAFT REPORT ...........00. eee eeeeeeeues 14
APPENDICES
A. Methodology ......... 0... ccc cece nee ees A-1
B. Comments on the Draft Report ....... 0.0... cece cece eee neces B-1

C. Endnotes ..... 6... eect e eee eee eee eeaee C-1



explain that the reason for selecting these specialties was based on a review of the
research literature. The PHS also criticized the response rate for the survey of
specialty physicians, and our inclusion of pediatrics in presenting data in Figures 1 and
2, since this specialty was not included in the physician survey. We respond that two
of the three findings were based on the survey of hospital administrators, which had a
75 percent response rate, and we note that Figures 1 and 2 were based on data from
that survey.

While most of the organizations supported our call for local collaboration to resolve
problems of emergency specialty coverage, several asked us to define the elements
that such a system should contain. We reiterate our belief that these systems can be
developed most appropriately at the community and State levels, rather than through
a Federal mandate.

Some of the organizations representing the specialty physicians emphasized the
importance of financing issues in problems of emergency care. We agree that
financial issues are important, but we also recognize that these issues are part of a
larger debate over the nation’s health care system and cannot be resolved here. In
response to concerns raised about our discussion of malpractice issues, we caution that
we do not claim to have solutions to concerns raised about malpractice liability; rather,
we encourage development of data to fill an informational void about malpractice risk
in emergency departments. Several organizations that responded to the draft report
identified a number of research topics that would further elucidate emergency
specialty coverage issues. We agree that these questions deserve further research;
however, they exceed the scope of this report.



KEY AREAS FOR ACTION

The issues addressed in this report raise some fundamental questions about the nature
of our health care system. To some degree, these difficulties reflect broader problems
of cost and access that have been well-documented elsewhere. Certainly, any
meaningful reform of the nation’s health care system could provide some relief for the
difficulties described in this report.

We believe, however, that continuing to wait for meaningful national reform will only
aggravate the existing problems. We recognize that the issues are perplexing and
difficult to resolve. Nevertheless, the gravity of the situation challenges all parties
involved in the delivery of health care services to develop solutions.

The challenges facing our nation’s emergency care system can only be resolved
through the joint efforts of physicians, hospital administrators and boards, consumers
and advocacy groups, health insurers, and government officials at the Federal, State,
and local levels. Toward that end, we urge these groups to take action in the areas
addressed below.

DEFINE THE ESSENTIAL ELEMENTS OF AN EFFECTIVE COMMUNITY-
WIDE EMERGENCY CARE SYSTEM.

Before the problem of emergency specialty coverage can be resolved, parameters must
be established to define what constitutes an adequate number of specialty physicians
available for emergency care. As noted in this report there are no common criteria by
which to measure whether a region or community has adequate emergency specialty
services to meet its needs.

Simply increasing the number of specialty physicians does not appear to be an
appropriate solution. In fact, in the past two decades the trend among physicians has
been to select specialty careers over primary care.’? The problem of emergency
specialty coverage appears to be one of resource allocation rather than scarce
resources. The key issue is how to assure that specialty physicians are available for
serious emergency cases in which their special skills are required.

The next step is determining where our emergency system falls short. Some States,
through their emergency medical services offices, have begun to gather and maintain
information on the availability of specialty services in their hospitals. This type of data
base enables them to identify gaps in service and to direct ambulances carrying
patients in need of specialty care to hospitals where those services are available. It
also provides baseline information about how best to organize a regional or
community emergency care system.

11



INTRODUCTION

PURPOSE

This inspection examines hospitals’ capacity to provide specialty coverage in their
emergency departments. It addresses (1) the availability of specialty physicians for
emergency coverage; (2) specialty physicians’ concerns about participating in
emergency care; and (3) strategies that hospital administrators use to ensure that
specialty coverage is available.

BACKGROUND

Hospital emergency departments are the safety net of the American health care
system. They provide the public’s only access to around-the-clock care, 365 days per
year. Emergency departments care for those injured in automobile accidents,
casualties of violence, victims of heart attacks, children with common colds, and
women in labor.

Hospitals report an array of difficulties facing their emergency departments. Recent
studies cite inadequate reimbursement for emergency care, a high level of uninsured
patients,’ overcrowding,” high liability insurance costs,> and inappropriate use as
primary care sites.*

Under the Federal patient transfer law’ Medicare-participating hospitals must meet a
number of specific requirements regarding treatment of persons with emergency
medical conditions and certain women in labor. Hospitals must provide for’an
appropriate medical screening examination for any person who comes to an
emergency department. If the person has an emergency medical condition, the
hospital must either provide further examination and treatment to stabilize the
condition or, under narrow circumstances, provide for the appropriate transfer of the
patient to another medical facility. Hospitals must provide that their services
ordinarily available in the hospital be made available for emergency patients. In
addition to several other requirements, hospitals must maintain a list of physicians who
are on-call to provide treatment to stabilize a patient with an emergency medical
condition.

Hospitals usually provide emergency specialty coverage by maintaining an on-call
panel: a time- and date-specific roster of specialty physicians who are available for
emergency department coverage. In most hospitals the on-call panel comprises
members of the medical staff who provide emergency specialty coverage on a rotating
basis.

This report grew out of a study requested by Congress on the impact on emergency
care of State laws prohibiting hospital employment of physicians.° Our early research
for that study showed that State prohibitions were just one of many factors limiting



APPENDIX A

METHODOLOGY
Hospital Sample Selection and National Survey

We conducted a mail survey of a national sample of hospital administrators on issues
related to emergency department care. The sample universe consisted of all acute
short-term hospitals with an emergency department listed in the Health Care
Financing Administration Provider of Service file. The sample was selected using
stratified simple random sampling with six strata:

Small rural hospitals (fewer than 100 beds)
Small urban hospitals

Medium rural hospitals (100-299 beds)
Medium urban hospitals

Large rural hospitals (300 or more beds)
Large urban hospitals

We defined six strata for California and six strata for the remaining States, for a total
of 12 strata. We sampled hospitals at a higher rate in California than in the remaining
States because this inspection began as part of an examination of State laws
prohibiting hospital employment of physicians, which have particular applicability in
California.

Originally, we selected 637 hospitals for the survey, but due to mergers and closures,
the sample size was decreased to 598. We distributed surveys on-May 10, 1991, to
these 598 hospitals, with a followup mailing to nonrespondents on May 31. We
received responses from 447 hospitals, a response rate of 74.7 percent, forming the
data base for this study. A sample size of 447 provides estimates within + 5 percent
of the true value at the 95 percent confidence level.

Specialty Physician Sample Selection and Survey

We also surveyed a random national sample of neurosurgeons, plastic surgeons,
orthopaedic surgeons, and obstetricians/gynecologists. We surveyed physicians in these
four specialties because they had been highlighted in two major reports” on
emergency rooms as posing particular difficulties for emergency department coverage.

We selected the sample of physicians using a stratified two-stage random sample. Two
strata were created. The first contained the three Medicare Part B carriers covering
the States of California and Texas, so these carriers were selected with a probability of
one. As part of our companion study, State Prohibitions on Hospital Employment of
Physicians (OEI-01-91-00770), we wanted to gather data on the views of specialty
physicians from those two States. The second strata contained all other carriers
administering the Medicare Part B program.

A-1



Department of Health and Human Services

OFFICE OF
INSPECTOR GENERAL

SPECIALTY COVERAGE IN HOSPITAL
EMERGENCY DEPARTMENTS

tD,
on

AUGUST 1992 OEI-01-91-00771





The number of specialty physicians who actually are available to provide emergency
coverage is reduced even further when other factors are considered. For example, in
most hospitals specialty physicians are exempt from emergency service after age 55 or
60, or after they have provided a certain number of years of emergency care. In
addition, even among those physicians who report that they provide emergency care, it
is unclear how often they are on-call.

Furthermore, some specialty physicians do not participate in emergency service at all.
These physicians engage in more lucrative practice options, such as private practice
with elective surgery only, further constricting the supply of specialists available to take
calls in emergency departments. Administrators have told us that this situation gives
the few specialists who are willing to take emergency calls a great deal of economic
leverage, and their financial demands can be very difficult for hospitals to meet.

Hospitals in rural areas encounter particular difficulty staffing specialty emergency services.
Seventy-two percent of rural hospitals, in contrast to 47 percent of urban hospitals, cite a
shortage of specialty physicians as hindering their ability to ensure specialty coverage.

Rural hospitals are more likely than urban hospitals to have difficulty ensuring
specialty coverage in their emergency departments (see figure 2). Of the rural
hospitals we surveyed, 73 percent reported difficulty staffing neurosurgery; 59 percent
staffing plastic surgery. Rural hospital administrators also report more trouble staffing
orthopaedic surgery, obstetrics/gynecology (OB/GYN), and pediatrics than their urban
counterparts.

Often the population base in rural areas is simply too small to support a variety of
high-cost specialty physicians. Consequently, rural hospitals do not offer as broad a
range of specialties as urban hospitals. Seventy-eight percent of rural hospitals do not
offer neurosurgery in their emergency departments and 72 percent do not offer plastic
surgery coverage.®

The problem facing rural areas reflects the national distribution of specialty physicians,
who are located overwhelmingly in metropolitan areas. This concentration may be
attributed in part to the fact that many specialty physicians are attracted to the major
university and teaching hospitals in urban areas where more comprehensive services
are offered.

Although fewer urban hospitals than rural hospitals encounter difficulty staffing
emergency specialty services, they still must contend with the shortage of specialty
physicians. Specialty physicians located in cities tend to provide coverage at more
hospital emergency departments than do their rural counterparts. Thirty-six percent of
urban hospital administrators versus 23 percent of rural administrators said that those
specialty physicians who are available for emergency call cover too many hospitals.’



FINDINGS

SIXTY-SEVEN PERCENT OF HOSPITALS REPORT THAT THEY
ENCOUNTER DIFFICULTY ENSURING COVERAGE FOR AT LEAST ONE
SPECIALTY SERVICE THEY OFFER IN THEIR EMERGENCY
DEPARTMENTS.

Certain specialties pose particular difficulty. Forty-nine percent of hospitals that offer
neurosurgery in their emergency departments encounter difficulty ensuring coverage. Forty-
five percent encounter difficulty ensuring coverage for plastic surgery.

The demand for specialty physicians who provide emergency care far exceeds the
supply. Hospital administrators responding to our survey cited a shortage of specialty
physicians as the leading factor contributing to their inability to meet this demand.

FIGURE 1

PERCENT OF HOSPITALS THAT ENCOUNTER DIFFICULTY

100%, ENSURING EMERGENCY SPECIALTY COVERAGE

80%
O%:
40%;
a f ] a
0%
Neurosurgery _Plastic Surgery Orthopaedic Surgery  OB/GYN

Source: OIG/OEI national mail survey of hospital administrators, May 1991. N=447

Sheer numbers provide one reason for the shortage in certain specialties. The
shortage is most severe among neurosurgeons, who provide specialized treatment for
head and spinal injuries, and for plastic and reconstructive surgeons. Fewer than 4,500
physicians practice in either of these two specialties.’



Page three

with a referral practice encompassing a large rural setting makes
the following point. "The neurosurgeon is, in effect; providing
coverage for more hospitals than could ever require his physical
presence. His principal practice may be at one or two hospitals,
he may attend eccasionally at one or more additional area
hospitals and he may serve as a referral resource for numerous
hospitals remote from his primary location. A referral area with
30 to 40 referring hospitals would not be unusual for a large
group of neurosurgeons. Considering this the concept of either
rural or urban hospitals all expecting onsite neurosurgical ER
coverage as an ideal aim is ill advised."

Citing the fact that Los Angeles County has "only" 120
neurosurgeons for less than 9 million people seems to imply that
this is an insufficient number. Indeed, France with an effective
medical system, has only 250 neurosurgeons for the entire
country. Increasing the number of neurosurgeons will only
increase the surgeons competing for elective cases, increase
those cases done for marginal indications, and certainly would
not be cost effective.

Trauma is only one aspect of the neurosurgeons role in
medicine. To be effective in trauma care the neurosurgeon must
maintain his skills in all areas of the neurosurgical discipline.

Dr. John Kusske who is as familiar with the problems of
neurosurgical coverage in Los Angeles as anyone in our country
makes the following comment. "At least in the case of Los
Angeles County many of the hospitals that indicated difficulty
obtaining neurosurgical coverage were not in fact institutions
that most neurosurgeons were comfortable with in terms of
providing emergency neurosurgical care."

The question of treating the product of the "knife and
gun clubs" in inner cities is a daunting project. Obviously,
prevention is more important than treatment. As long as our
inner city conditions continue as they are now it may be that it
will be necessary to identify these “war zones" and provide
special help to those inner city hospitals involved. Perhaps
financial incentives to hospitals could be made part of the
programs now being pushed by Jack Kemp, Secretary of HUD, for the
redevelopment of our inner cities.

Finally, it is not only the attitude of neurosurgeons
and other specialty physicians but that of hospital
administrators and their Boards. There is an increasing demand
from every segment of society to reduce the cost of medical care.
In order to remain viable institutions, hospitals are going to be





Page 2

HCFA has some concems about issues raised in this study. Specifically,
we believe that this report may further promote misconceptions prevalent
among physicians about Federal patient transfer law. The report fails to
clarify that the law uses the established scope of services offered by individual
hospitals as the basis for determining whether sanctions should be applied, and
that physicians fulfilling their established responsibilities, including the delivery
of emergency services, are unlikely to be sanctioned. We have additional
information for OIG on Congressionally-mandated studies we are conducting
that may be pertinent to this audit. Our further specific comments are

attached for your consideration.

Thank you for the opportunity to review and comment on this draft
Teport.

Attachment



American College of Emergency Physicians
WASHINGTON OFFICE

900 47!n Stroot, N.W., Sulle 1250

Washington, DC. 20008

(202) 723-0810 FAX # (202) 728.0617

June 2, 1992

Richard P. Kusserow

Inspector General

Department of Health and Human Services
Washington, D.C. 20201

Dear Mr. Kusserow:

Thank you for requesting the comments of the American ‘Collage of Emergency
Physicians (ACEP) on the draft report, “Specialty Coverage in Hospital Emergency
Departments". The College is pleased that the Inspector General is concerned about
the problems that hospitals have in ensuring adequate specialty coverage in their
emergency departments.

In general, ACEP agrees with the findings of the draft report, and the key areas identified
for action. However, we are submitting the following comments and recommendations
for your consideration.

ACEP believes the report could be improved by including additional background
information on several topics. First, we are concerned that the draft report fails to
adequately describe the role of emergency physicians. Emergency physicians not only
provide a broad range of clinica! services to patients, but also manage the care of patients
from the time they becorne iti or injured in the fieid through their care in the emergency
department. They cocrdinate the patients’ admission to hospitals, and manage their
referrals to other specialists. The College would be pleased to provide the inspector
General with additional information on the role of the emergency physician.

We are also concerned that the report does not adequately explain the need for specialty
Coverage in the emergency department and its relation to the care provided by
emergency physicians. The report could be Improved by providing additional information
on the fecara’ patient vansfe: law, particularly the penalties for non-compliance with the
requirements that hoscitsis maintain a list of on-call physicians.

Furthermore, although the report appropriately focuses on the shortage of certain sub-
specialties that pose particular difficulties, such as neurosurgery and plastic surgery, the
College believes that some discussion of the availability of primary care coverage would
also be useful. One way to do this would be to include family practice and internal
medicine data in the bar graphs (figures 1 and 2). This data should be supplemented with

supporting text describing the emergency department's role as a “safety net” for those
without access to other sources of care.

The College also wishes to highlight several other areas of significance: screening
examinations, uncompensated care, coordination of care, and medical liability reform.

B- 18



weir

one

¢

specu Health Care
DEPARTMENT OF HEALTH & HUMANSERVYCHS Financing Administration

JL 21 192 Memorandum

From

To

Acting Administrator

Office of Inspector General (OIG) Draft Report: "Specialty Coverage it
Hospital Emergency Departments," OEI-01-91-0077]

Inspector General
Office of the Secretary

We have reviewed the subject draft report in which the OIG examines
hospitals’ capacity to provide specialty coverage in their emergency
departments. This report grew out of a study requested by Congress on the
impact on emergency care of State laws prohibiting hospital employment of
physicians.

Earlier research for the Congressionally-mandated study showed that
these laws are just one of many factors limiting some hospitals’ ability to
provide emergency specialty services. OIG decided to expand this study to
determine what other factors were affecting hospitals’ ability to provide these
services.

In this expanded study, OIG found that two-thirds of the hospitals
surveyed currently encounter difficulty ensuring coverage for at least one
specialty service offered ih their emergency departments, and that these
difficulties are likely to continue. OIG believes current hospital strategies to
ensure emergency specialty coverage, such as requiring medical staff members
to provide emergency services and offering incentives for physicians to
Participate in emergency care, have not effectively addressed these problems.

~ OIG has targeted key areas for action in attempting to address the
challenges facing our nation’s emergency care system, including: (1) defining
the essential elements of an effective community-wide emergency care system,
(2) determining how hospitais can best collaborate to provide emergency
Specialty coverage, (3) determining physicians’ responsibility for providing
emergency specialty care, and (4) addressing physician perceptions about
Malpractice msks associated with emergency care. OIG acknowledges that
accomplishing these objectives will demand the joint efforts of physicians,
hospital administrators and boards, consumers and advocacy groups, health
insurers, and government Officials at the Federal, State and local levels.
Consequently, the report contains no recommendations for the Health Care
Financing Administration (HCFA) or any other discrete party.







COMMENTS ON THE DRAFT REPORT

We received written comments on the draft report from the Office of General
Counsel (OGC), the Public Health Service (PHS), and the Health Care Financing
Administration (HCFA), and verbal comments from the Office of the Assistant
Secretary for Planning and Evaluation (ASPE) within the Department of Health and
Human Services. We also received written comments from Public Citizen Health
Research Group (PCHRG), the American Hospital Association (AHA), the American
College of Emergency Physicians (ACEP), the American College of Obstetricians and
Gynecologists (ACOG), the American Academy of Orthopaedic Surgeons (AAOS),
and the Joint Council of State Neurosurgical Societies (JCSNS), and verbal comments
from the American Medical Association (AMA).

We respond here to the major themes contained in the comments. We first provide a
summary of the comments, and then provide our response in italics. We include the
complete text of the written comments in Appendix B.°

Federal Patient Transfer Law

The HCFA and the OGC believe that the report could aid in dispelling
misconceptions about this law by clarifying the language that appeared in the draft
text. Comments from several of the other organizations suggested that such a
clarification would be beneficial.

We have clarified our description of the Federal Patient Transfer Law in response to these
comments. We specify that an on-call physician who refuses or fails to appear at a
hospital may be subject to penalties, depending on the facts and circumstances of the
refusal or failure to appear. We also indicate that Medicare-participating hospitals must
provide for their ordinarily available services to be available for emergency patients.

Local Collaboration

Most of the organizations directly supported our call to develop collaborative
approaches for resolving problems associated with specialty coverage in hospital
emergency departments. Several of these organizations asked us to define more
precisely how hospitals, physicians, and other groups could work together to ensure
specialty coverage. For example, they requested that we specify how often physicians
should take call, discuss how hospital by-laws can be enforced, assess the practicality of
sharing on-call lists, determine how to foster urban-rural collaboration, define the
appropriate distribution of specialty physicians, and address the capacity of different
hospitals to provide sophisticated specialty services.

We intentionally do not define the elements of a collaborative system for emergency

coverage. We believe that these systems will be developed most appropriately at the
community and State levels, rather than through a mandate of the Federal government.

14



hairman

onald Sheffel, MD

31 North 35th Avenue
ollywood, FL 33021
05) 985-1490

ecording Secretary
‘elvin L. Cheatham, MD
ON. Brent Street

uite 202

“entura, CA 93003

305) 643-2179

‘orresponding Secretary
. ‘hwetachenau, MD
nigomery Road

Nilliam L. Pritchard, MD
309 Medical Drive

Suite 101

Fayetteville, NC 28304
919) 484-0014

Pegs ns Chairmen

awe & Oestreich, MD
(XL Region)

david A. Herz, MD
(N.W. Region)

\uguet W. Geise, MD
(S.E. Region)

<obert H. Saxton, MD
(S.W. Region)

JOINT COUNCIL OF STATE NEUROSURGICAL SOCIETIES

of the
AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS
and the .
CONGRESS OF NEUROLOGICAL SURGEONS

May 12, 1992

Richard P. Kusserow

Inspector General

Dept. of Health and Human Services
Washington, D.C. 20201

Dear Inspector General Kusserow:

We thank you for forwarding the draft copy of
Specialty Coverage in Hospital Emergency Departments
to the American Association of Neurological Surgeons
for comment.

It is our opinion that the committee
preparing the paper has identified almost all of the
root-causes of the difficulties in providing
neurotrauma care in the United States. Their
response is that of a governmental body looking at
the financial, political, social, ana legal
parameters of this problen. The response of the
practicing neurosurgeon is of necessity tempered by
the demands that society makes on his physical and
economic resources. The high incidence of
neurotrauma associated with trauma in general, the
limited number of neurosurgeons as compared to other
surgical specialists who are involved in trauma, the
occurrence of injuries at inopportune times whether
this be late at night or in the midst of a demanding
elective neurosurgical schedule, make many neuro-
surgeons unwilling to commit to a = mandated
responsibility for trauma care. This is especially
so as they become more senior in their discipline.

Yet, there are compatible solutions to these
problems both from the standpoint of the public and
the neurosurgeon. Their interests coincide in
developing trauma systems that make it easier for the
neurosurgeon to participate while still delivering
state-of-the-art care. :



Page eight

Iv. Promulgating clear COBRA regulations that do not
put the neurosurgeon in a “catch 22" situation.

Vv. Hold hospital boards, administrators, and medical
staffs responsible for adequate bylaw enforcement.

vI. Increasing the absolute number of neurosurgeons
only compounds the problem. Better allocation of the resources
available is the solution.

VII. Reasonable ways exist to draw the practicing
neurosurgeon into the "on call" system.

VIII. There has as yet been no overall commitment or
allocation of sufficient resources by either the Federal or State
Governments to improve neurotrauma care. A commitment from
public agencies is going to have to compliment a commitment from
hospitals and surgeons if we are going to solve the problem of
trauma care delivery.

If such methods are rationally explored so that it
becomes less burdensome for the neurosurgeon to deliver state-of-
the-art trauma care it is very likely that American neurosurgery
will respond to such developments.

Certainly, we in neurosurgery realize that there is a
less than optimal delivery system for trauma care. That the
great advances in technology which have occurred in the last few
decades are not being applied equally across our country. That
there is a great variance in trauma care depending not only on
residence location or insurance status but simply as to which
hospital facility the trauma victim is transported. Whether one
is among the wealthiest or poorest of our citizenry it is the
commitment, facilities, and expertise of the hospital to which he
is brought that may determine his survival.

Organized neurosrgery has been looking at this problem
of neurotrauma care for a number of years. It has several
resources which can be made available to the Federal Government
in considering the aforementioned problems. We have a Section on
Neurotrauma and Critical Care which houses a separate committee
dedicated to the organization of trauma systems on a local,
regional, and national basis. We would be most happy to make
these consultants available to any State or Federal agency to
improve the level of neurotrauma care in the United States.



We suggest that the O1G include in the “key areas" section
the need for better data, and more "targeted" health
services research to give health administrators and policy
makers more conclusive information upon which to make
policy decisions.

Other key areas for action might include training of
personnel, transportation, consumer information and
education, legislative and administrative actions,
financial arrangements, and system development efforts
beyond collaboration concerning specialty coverage.

V bs
Anthony L. Icte leg





American Academy of Orthopaedic Surgeons

222 South Prospect Avenue, Park Ridge, Illinois 60068-4058
Phone 708/823-7186 * 800/346-AAOS * Fax 708/823-8125

June 22, 1992

Richard P. Kusserow

Inspector General

Department of Health and Human Services
330 Independence Ave., SW

Washington, DC 20201

Dear Mr. Kusserow:

Thank you very much for sending us a copy of the draft report,
"Specialty Coverage in Hospital Emergency Departments.”

The ability of hospitals to provide sufficient specialty coverage in
their emergency departments is of critical importance. We at the
Academy, therefore, applaud and appreciate the efforts of your
office to examine this issue.

We support the report's conclusions regarding the need to define the
essential elements of an effective, community wide emergency
system and the need to determine how hospitals can best collaborate
to provide emergency specialty coverage. .

In addition, the Academy believes steps must be taken to eliminate
the financial disincentives now faced by physicians and other health
care professionals who provide trauma care. These steps include
providing equitable payment for surgeons performing multiple
independent procedures under the same anesthetic. They also
include creating payment differentials for services delivered during
nights, weekends, holidays and other “after hours”, which is when
most trauma care occurs.





it is prepared to join with other medical organizations, civic groups, business and
. Sovernment to examine all options and to create a forum in which this issue can be
addressed.

July 1990



Page nine

These comments on "Specialty Coverage in. Hospital

Emergency Departments" were coordinated by Donald Sheffel, M.D.
Florida, Chairman, Joint Council of State Neurosurgical Societies
in conjunction with:

DS:mt

James Bean, M.D., Kentucky, Chairman Medial Practices
Committee

John Kusske, M.D., California, Chairman Committee for the
Organization of Neurotrauma Care

R. K. Narayan, M.D., Texas, Chairman Section on Neurotrauma
and Critical Care

Lawrence Pitts, M.D., California, Former Chairman Section on

Neurotrauma and Critical Care

Donald Sheffel, M.D.



percent of urban hospitals, cite a shortage of specialty physicians as hindering
their ability to ensure specialty coverage.

e — Thirty-six percent of hospital administrators report that ensuring specialty
coverage in their emergency departments has become more difficult over the
past two years.

Hospitals are likely to continue to experience difficulty obtaining specialty coverage in their
emergency departments.

e — Sixty-six percent of specialty physicians responding to our survey fear increased
malpractice liability as a result of covering hospital emergency departments.

e Forty-four percent of these specialty physicians believe that reimbursement for
emergency services is inadequate.

e Forty-seven percent of these specialty physicians consider the Federal patient
transfer law to be a serious drawback to participating in emergency care.

Current hospital strategies to ensure emergency specialty coverage appear to be inadequate
Solutions to the problem.

¢ Seventy-six percent of hospitals require that members of their medical staff
provide emergency services. These requirements, however, do not alleviate
their difficulty ensuring emergency specialty coverage.

© Twenty-six percent of hospitals report that they offer incentives for specialty
physicians to participate in emergency care, but the effectiveness of these
incentives is unclear.

KEY AREAS FOR ACTION

The issues addressed in this report reflect broad problems of cost and access that exist
throughout the health care system. The challenges facing our nation’s emergency care
system can only be resolved through the joint efforts of physicians, hospital
administrators and boards, consumers and advocacy groups, health insurers, and
government officials at the Federal, State, and local levels. We urge these groups to
take action to:

Define the essential elements of an effective community-wide emergency care system.

Parameters must be established to define what constitutes an adequate number of
specialty physicians available for emergency care. Recent increases in the overall
number of specialty physicians suggest that simply increasing the supply is not a
solution. Rather, emphasis needs to be placed on how to ensure that specialty



Richard P. Kusserow
June 15, 1992 - page 3

Thank you again for inviting the American Hospital Association
to share its perspective on the important issue of specialty
coverage in emergency departments,

Sincerely,

Lori :

ames D, Bentley, Ph.D.
Senior Vice President for Policy

B-17



American Hospital Atvoclation

in

Capitol Place, Building #3
50 P Street, NW.

Suite 1100

Washington, D.C. 20001
Telephone 202.638-1190
FAX NO. 202.626-2343

June 15, 1992

Richard P. Kusserow

Inspector General

Department of Health and Human Services
330 Independence Avenue, S.W.
Washington, DC 20201

Dear Mr. Kusserow:

We appreciate the opportunity to preview and comment on the
office of the Inspector General’s (OIG) draft report on
"Specialty Coverage in Hospital Emergency Departments." ‘he
American Hoapital Association (AHA) represents over 5000
hospitals nationwide and is committed to assisting hospitals in
providing quality care to residents of their communities,

Many hospital communities continue to struggle with how to
effectively assure adequate physician specialty coverage in
emergency departments, a critical issue with important
implications for patients’ access. We applaud the OIG for
devoting resources to help address it.

The draft OIG report indicates over two-thirds of hospitals
nationwide report difficulty in ensuring physician coverage for
at least one specialty service they offer in their emergency
department, and suggests even more earenerest for hospitals in
the future. Two strategies available to individual hospitals
to provide specialty coverage -- i.e, requiring the members of
their medical staff to be on call and offering physicians
financial and administrative incentives to participate --
appear to be inadequate, according to the draft OIG report. To
the extent that individual hospital strategies to assure
Physician coverage are found inadequate, community-wide
remedies may well be in order.

We would like to commend the OIG for its accurate
characterization of the issue of specialty coverage as a
community responsibility. As the draft report points out,
Problems in specialty coverage can only be resolved through
Joint efforts of physicians, hospital administrators and
beards, consumers, and government officials at the Federal,

B-15



10. The State of Hospital Emergency Departments in Massachusetts, Massachusetts
Medical Society and Massachusetts Chapter, American College of Emergency
Physicians, in cooperation with Massachusetts Hospital Association, January 8, 1991, p.
61.

11. Study of Medical Specialist Emergency On-Call Practices of Hospitals in Los Angeles
County, op. cit.

12. The Trauma Care Systems Planning and Development Act of 1990 (P.L. 101-590)
is a Federal initiative designed to promote public access to trauma and emergency
care. In 1991, Congress appropriated 5 million dollars to help States to develop,
implement, and improve regional trauma care systems through a competitive grant
program. This legislation does not specifically address hospitals’ capacity to provide
emergency specialty coverage, but is aimed at the larger issues dealing with
cooperative arrangements among hospitals to deliver comprehensive regional
emergency services.

13. U.S. General Accounting Office, Trauma Care: Lifesaving System Threatened by
Unreimbursed Costs and Other Factors, Report No. GAO/HRD-91-57, May 1991, p. 36.

14. M. McNulty, "Are Poor Patients Likely to Sue for Malpractice?" Journal of the
American Medical Association, 262, no. 10 (September 8, 1989), p. 1391.

15. American College of Obstetricians and Gynecologists, Hospital Survey on Obstetric
Claim Frequency by Patient Payor Category, February 1988.

16. Mary G. Musman et al., "Medical Malpractice Claims Filed by Medicaid and Non-
Medicaid Recipients in Maryland," Journal of the American Medical Association, 265,
no. 22 (June 12, 1991), p. 2992.

17. American College of Emergency Physicians, "Access to Emergency Medical Care:
Emergency Physicians and Uncompensated Care," Annals of Emergency Medicine, 16
(November 11, 1987), p. 1302.

18. Laurie Anderson, "What’s Up, Doc? Primary Care Salary," Healthweek,
December 1991.

19. Roger A. Rosenblatt, "Specialists or Generalists: On Whom Should We Base the
American Health Care System," Journal of the American Medical Association, 267, no.
12 (March 25, 1992), p. 1665.

20. The text of the comments from ASPE and the AMA are not included since they
were conveyed verbally.

21. Study of Medical Specialist Emergency On-Call Practices of Hospitals in Los Angeles
County, op. cit; The State of Hospital Emergency Departments in Massachusetts, op. cit.



Specialty physicians also fear that participation in emergency care will increase the
cost and decrease the availability of malpractice insurance. They are concerned that
insurance companies will be reluctant to underwrite policies for physicians who
participate in emergency care. We learned about a case in California in which a
physician-owned insurance company threatened to withhold coverage for physicians
who served in emergency departments. Under pressure from the medical community
and the State attorney general, this company eventually withdrew its threat. But
contrary to physicians’ perceptions, a representative from a large association of
insurance companies told us that physician participation in emergency service affects
neither the price nor the availability of malpractice insurance.

Empirical studies on the incidence of malpractice claims call into question the
accuracy of the perception that indigent patients are more likely to sue. A 1989 study
published in the Journal of the American Medical Association shows no difference in
the frequency of malpractice claims filed by indigent patients compared to privately
insured patients.’ A study by the American College of Obstetricians and
Gynecologists (ACOG) concluded that Medicaid patients are no more likely than
other patients to be litigants in malpractice suits arising from obstetrical care.!> In
Maryland, researchers found that "the proportion of claims filed by persons enrolled in
Medicaid before and/or during the alleged malpractice incident was lower than the
proportion of state residents enrolled in Medicaid.""® However, none of these

studies is specific to suits arising solely from the emergency department.

Forty-four percent of specialty physicians responding to our survey believe that
reimbursement for emergency services is inadequate.

Economically, emergency department coverage has little appeal for specialty
physicians. Specialty physicians say that low reimbursement rates for Medicaid
patients and the possibility of no payment from uninsured patients deter them from
providing emergency care. The American College of Emergency Physicians found that
an average of 31 percent of emergency physicians’ charges go uncollected. Many
reported uncompensated care levels as high as 50 or 60 percent of gross patient
charges.!”

Specialty physicians’ frustrations over low income from emergency services are
compounded by the disruption in their private practices caused by being summoned to
the emergency department. Specialty physicians contend that a call to the emergency
department in the middle of the night may force them to cancel their scheduled
appointments for the next day, thus resulting in a loss of income from their regular
practices.

While specialty physicians’ concerns about low payment should not be ignored, since
they could affect the availability of emergency care, these concerns should be put in
context. Obviously, a large uncompensated care clientele would be a burden on these
physicians. At the same time, however, the medical specialties surveyed for this study
include some of the most highly paid physicians. A recent survey of physician



American Academy of Orthopaedic Surgeons

A Position Statement”

222 South Prospect Avenue * Park Ridge. Ib 60068-4058
708/823-7186

800/346-2267

Contact; AMn Nagelberg

Improving America’s Trauma Care System

The National Academy of Sciences has declared injury the nation’s leading pub-
lic health problem. It is the leading cause of death among people under age 45 and
the fourth leading cause of death for all ages, with more than 140,000 fatalities
annually. It is also the most expensive health problem, with an estimated 4 million
years of productive work lost each year through death and disability. In 1988 alone,
$180 billion in direct and indirect costs were incurred as a result of injury.

Despite these and other catastrophic effects, the nation’s commitment to treating
injury continues to wane. A lack of centralized planning, coupled with insufficient
financing, has rendered our trauma care system wholly inadequate for a nation
which prides itself on high quality health care.

The American Academy of Orthopaedic Surgeons believes our trauma care
must be elevated to a level which ensures that each injured person has the
greatest possible chance of survival and recovery.

To accomplish this, the Academy endorses efforts to establish statewide and
regional trauma care systems consisting of strategically located trauma centers
designed according to widely accepted national guidelines. Overwhelming evidence
indicates that these systems would save more lives and prevent more disabilities
than today’s haphazard distribution of state and local trauma centers, many of
which are overly concentrated in large urban areas. Statewide and regional trauma
care systems would assure that more injured patients have access to quality trauma
care and would reduce the number of patients brought to hospitals which lack the
resources to deal with injury.

The American Academy of Orthopaedic Surgeons believes that the financial
losses incurred by health care entities providing uncompensated trauma
care must be eliminated.

According to conservative estimates, hospitals provided approximately $1 billion
in uncompensated trauma care in 1988, representing 12 percent of all
uncompensated care provided that year. Many hospitals are being forced to either
withdraw from their area trauma care system or close altogether due to the finan-
cial difficulties of providing uncompensated trauma care.

Therefore, any concerted effort to improve our trauma care system must address
the issue of health care for the uninsured. To this end, the Academy reiterates that

(ovbry 25



Page five

Lacking health care reform the issue of reimbursement
and other factors delineated in the report has to be dealt with
in the current pluralistic, mixed public-private, multiple payor,
autonomous institutional health care system. This provides a
major disincentive to participation in emergency room work.
Given that the surgeon is paid several times more to perform
elective surgery than to treat seriously injured trauma patients
in the middle of the night it seems self evident why
neurosurgeons are not fighting to be placed on emergency room
call schedules.

The payment system requires modification to reward
those willing to take on this difficult burden.

Current hospital strategies to ensure emergency specialty
coverage appear to be inadequate solutions to the problem.

Seventy-six percent of hospitals require that members
of their medical staff provide emergency services. These
requirements, however, do not alleviate their difficulty ensuring
emergency specialty coverage.

Twenty-six percent of hospitals report that they offer
incentives for specialty physicians to participate in emergency
care, but the effectiveness of these incentives is unclear.

Failure to enforce medical staff bylaws is not a staff
members failure but is an administrative failing involving the
organized medical staff, the administration and the hospital
board. The insurance of hospital bylaw enforcement comes from
the JCAHO survey as an extra institutional oversight. If this
aspect of hospital function were included in routine survey and
hospital accreditation were dependent upon it, enforcement would
be much more carefully observed.

Hospital availability and privileges determines much
more of a specialists livelihood and success than any other
incentive. These complex, procedure-oriented specialties require
a work place in which to perform. Financial or administrative
incentives may assist in compensating the surgeon for
uncompensated and inconvenient care. These have nowhere near the
power of adequate medical staff bylaw enforcement. However, the
hospital does not always enforce its bylaws fearing the
practitioner will resign and relocate, causing severe financial
loss to the hospital. :

The responsibility is institutional and the mechanism
for responding to that responsibility is already established.



CURRENT HOSPITAL STRATEGIES TO ENSURE EMERGENCY SPECIALTY
COVERAGE APPEAR TO BE INADEQUATE SOLUTIONS TO THE PROBLEM.

Seventy-six percent of hospitals require that members of their medical staff provide
emergency services. These requirements, however, do not alleviate their difficulty ensuring
emergency specialty coverage.

Medical staff bylaws traditionally have required that physicians with admitting
privileges participate in their hospital’s emergency department on-call panel. But
hospitals that require on-call coverage report that they encounter difficulty in staffing
their on-call panels to the same degree as hospitals without this requirement. One
hospital administrator we interviewed noted that when his hospital faced difficulty
ensuring emergency coverage, medical staff added mandatory on-call panel
participation for physicians, but the addition of the bylaw requirement failed to
remedy the problem.

Enforcing bylaws governing emergency service participation rests with the hospital’s
medical staff. Administrators contend that they have little leverage to ensure that
physicians meet these requirements because physicians want administrators to exercise
as little control as possible over medical staff decisions. Moreover, many physicians
resent the principle behind mandatory on-call panel participation. In fact, ten percent
of hospitals responding to our survey reported that their medical staffs have made
efforts to remove the on-call requirement from the bylaws.

Despite resistance to emergency service from medical staffs, most hospital
administrators manage to put together on-call panels. Administrators work with their
medical staff and chiefs of services to persuade them to participate in emergency
department coverage. However, some administrators have resorted to other strategies
in an attempt to ensure emergency department coverage.

Twenty-six percent of hospitals report that they offer incentives for Specialty Physicians to
participate in emergency care, but the effectiveness of these incentives is unclear.

Hospitals offer two types of incentives to make emergency department coverage more
appealing: those with direct financial implications and those that are primarily
administrative in nature. Although about one-quarter of hospitals offer some type of
incentive, no single approach dominates.

Ten percent of hospitals encourage specialty physicians to provide emergency care by
offering them direct compensation for being on the on-call list. The costs of such
payments can be substantial. One administrator we interviewed from a community
hospital pays neurosurgeons a "nuisance fee" of $1,000 per night merely for carrying a
beeper to respond to potential emergency calls. Specialty physicians who actually
come to the emergency department to provide care receive payment for patient
services plus the basic on-call payment from the hospital.



EXECUTIVE SUMMARY

PURPOSE

This inspection examines hospitals’ capacity to provide specialty coverage in their
emergency departments.

BACKGROUND

Hospital emergency departments are the safety net of the American health care
system. They provide the public’s only access to around-the-clock care, 365 days per
year. Under the Federal patient transfer law, Medicare-participating hospitals must
meet a number of specific requirements regarding treatment of persons with
emergency medical conditions, including certain women in labor. Among these
Tequirements, hospitals must maintain a list of physicians who are on-call to provide
treatment necessary to stabilize a patient with an emergency medical condition.

This report grew out of a study requested by Congress on the impact on emergency
care of State laws prohibiting hospital employment of physicians. That research
showed that these laws are just one of many factors limiting some hospitals’ ability to
provide emergency specialty services. Consequently, we expanded that study to
include a separate analysis of these other factors and of hospitals’ efforts to address
them.

Our study uses data from (1) a mail survey of a stratified national random sample of
hospital administrators; (2) a mail survey of a stratified random sample of orthopaedic
surgeons, neurosurgeons, plastic surgeons, and obstetricians/gynecologists;

(3) interviews with hospital administrators, directors of hospital emergency
departments, medical and specialty societies, and hospital association officials; and

(4) a review of literature and legislation related to hospitals’ provision of emergency
medical services and trauma care.

FINDINGS

Sixty-seven percent of hospitals report that they encounter difficulty ensuring coverage for
at least one specialty service they offer in their emergency departments.

e Certain specialties pose particular difficulty. Forty-nine percent of hospitals
that offer neurosurgery in their emergency departments encounter difficulty
ensuring coverage. Forty-five percent encounter difficulty ensuring coverage for
plastic surgery.

¢ Hospitals in rural areas encounter particular difficulty staffing specialty
emergency services. Seventy-two percent of rural hospitals, in contrast to 47



hospital emergency departments provide the public’s only
access to around-the-clock care, 365 days per year, is not
quite accurate. Many community-based primary care
physicians, group practices and managed care organizations
provide 24-hceur service. We believe it would be more
accurate to state that there are certain services
requiring specific resources that can be obtained only in
emergency roogs.

The matters addressed in the "KEY AREAS FOR ACTION" section of
the OIG report are broad and non-specific. Our comments are as
follows:

°

The repert notes that "to some degree, these difficulties
{re: specialty coverage in hospital emergency
departments] reflect broader problems of cost and access -
- .", yet, to a large extent the focus is limited to
emergency service. A broader focus on systems of health
services delivery could suggest strategies for addressing
the problems. For instance, one illustration cites
obstetrician reluctance to provide emergency coverage that
could involve delivering ‘babies for women who have not
received prenaiai care. We believe a system which seeks
to expand such care would clearly address this factor.

The President’s health care reform proposals embody such a
system.

"DEFINE THE ESSENTIAL ELEMENTS ON AN EFFECTIVE COMMUNITY-
WIDE EMERGENCY CARE SYSTEM." Before defining “common
criteria by which to measure whether a region or community
has adequate emergency specialty services to meet its
needs," it would seem prudent to first determine where the
shortages actually exist, geographically, by specialty,
and rural versus urban. Then a comparison could be made
to determine whether or where State laws and physician
training programs had an effect.

“ADDRESS PHYSICIAN PERCEPTIONS ABOUT MALPRACTICE RISKS
ASSOCIATED WITH EMERGENCY CARE." We also believe that
better data collection would facilitate determining
whether the perceptions about malpractice risks are
realistic. There are aspects of the emergency situation
that might be relevant to this issue such as relative lack
of established physician-patient relationships and
disproportionately high usage by patients with vulnerable
health status. Research to determine actual risk may
affect malpractice risk perceptions should it show higher
risk in emergency situations.



For each carrier, an unduplicated count of the number of provider numbers (EINs)
found in each of the four specialty groups was produced from the Part B Medicare
Annual Data (BMAD) system one percent sample file. Using the total number of
EINs, across all specialties, we determined the size of the carriers in the second strata
as the proportion each carrier represented of the total number. We then chose six
carriers, with replacement, with probability proportional to size. Overall, the sampled
carriers contain approximately 25 percent of the neurological surgeons,
obstetricians/gynecologists, orthopaedic surgeons, and plastic surgeons contained in the
BMAD one percent sample. To achieve a sample size of 200 for each of the four
specialty, a sampling fraction was determined for each specialty group and applied
within each carrier. The actual size of the selected sample was 853, because of
rounding and variation in the number of specialties across each carrier. Names and
addresses for 837 of these physicians were obtained from the carriers.

On June 21, 1991, we mailed the surveys to this random sample of specialty physicians,
with a followup mailing to nonrespondents on July 5. We received usable responses
from 493 specialty physicians. Thirty-seven surveys (4.4 percent) were returned to us
because the physicians had retired, died, or moved. Sixteen responses were eliminated
from the analysis because the physicians indicated that they practice in specialties
other than the four we chose to survey. This yielded a data base of 477 specialty
physicians, an effective response rate of 57 percent--132 orthopaedic surgeons, 118
plastic surgeons, 119 neurosurgeons, and 108 obstetricians/gynecologists.

Interviews

Our interviews included telephone and in-person discussions with hospital
administrators from California and Massachusetts, States in which major studies of
emergency department issues had recently been conducted. (These studies are cited
in appendix C.) We also conducted telephone interviews with officials from state
hospital associations in Arizona, California, Colorado, Georgia, Illinois, lowa, Kansas,
Massachusetts, Mississippi, Montana, Ohio, Texas, and Washington, and regional
hospital councils in California. We also interviewed State medical society officials in
California, Iowa, Massachusetts, and Texas, and physicians from California, Texas,
Florida, and Massachusetts. These interviews were expansions of research on our
companion study, State Prohibitions on Hospital Employment of Physicians.

We also interviewed representatives of the following national organizations: American
Medical Association, American Hospital Association, American College of
Obstetricians and Gynecologists, American College of Emergency Physicians,
American Society of Orthopaedic Surgeons, American Society of Plastic and
Reconstructive Surgeons, and American Association of Neurological Surgeons.

Review of Literature and Legislation

We reviewed journal articles, studies conducted by professional associations, and
recent legislation on trauma and emergency care services.

A-2



OFFICE OF INSPECTOR GENERAL

The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, as
amended, is to protect the integrity of the Department of Health and Human Services’ (HHS)
programs as well as the health and welfare of beneficiaries served by those programs. This
statutory mission is carried out through a nationwide network of audits, investigations, and
inspections conducted by three OIG operating components: the Office of Audit Services, the
Office of Investigations, and the Office of Evaluation and Inspections. The OIG also informs
the Secretary of HHS of program, and management problems, and recommends courses to
correct them.

OFFICE OF AUDIT SERVICES

The OIG’s Office of Audit Services (OAS) provides all auditing services for HHS, either by
conducting audits with its own audit resources or by overseeing audit work done by others.
Audits examine the performance of HHS programs and/or its grantees and contractors in
carrying out their respective responsibilities and are intended to provide independent
assessments of HHS programs and operations in order to reduce waste, abuse, and
mismanagement and to promote economy and efficiency throughout the Department.

OFFICE OF INVESTIGATIONS

The OIG’s Office of Investigations (OI) conducts criminal, civil, and administrative
investigations of allegations of wrongdoing in HHS programs or to HHS beneficiaries and of
unjust enrichment by providers. The investigative efforts of OI lead to criminal convictions,
administrative sanctions, or civil money penalties. The OI also oversees State Medicaid fraud
control units which investigate and prosecute fraud and patient abuse in the Medicaid program.

OFFICE OF EVALUATION AND INSPECTIONS

The OIG’s Office of Evaluation and Inspections (OEI) conducts short-term management and
program evaluations (called inspections) that focus on issues of concern to the Department,
the Congress, and the public. The findings and recommendations contained in these inspection
reports generate rapid, accurate, and up-to-date information on the efficiency, vulnerability,
and effectiveness of departmental programs.

This report was prepared under the direction of Mark R. Yessian, Ph.D., Regional Inspector
General, Office of Evaluation and Inspections, and Martha B. Kvaal, Deputy Regional
Inspector General, Office of Evaluation and Inspections, Region I. Participating in this project
were the following people:

Boston Region Headquarters
Russell W. Hereford, Ph.D., Project Leader Alan S. Levine
Lori B. Rutter W. Mark Krushat

Barbara R. Tedesco

For additional copies of this report, please call the Boston Regional Office at (617) 565-1050.



First, the report mentions federal requirements that hospitals provide medical screening
examinations to all persons presenting to the emergency department. Emergency
physicians are responsible for providing these screening exams, and additional treatment,
if necessary. However, no payment to either the physician or hospital was mandated by
law. Often the physician and the hospital are not reimbursed for the screening exam,
even when palients have health insurance.

ACEP's ethical principfes state that all patients seeking care in the emergency department
should receive treatment, regardiess of their abllity to pay. However, we believe that
fallure to appropriately reimburse health care providers for screening examinations, when
public or private insurance coverage is available, only worsens the financial difficulties that
emergency departments across the nation are facing.

Second, ACEP believes that the growing number of uninsured Americans and the
increasing burden of uncompensated care in emergency departments Is exacerbating
the problem of obtaining specialty coverage. The report states that the types of cases
seen in urban emergency departments tend to differ from those at rural hospitals and
refiect the social problems of cities. The Coliege would like to add that many of the cases
related to the “urban" problems of crime, drug wars, and gang violence ultimately result
in expensive, uncompensated care. This growing burden of uncompensated care has
already forced many trauma centers to close, as has been documented by recent General
Accounting Office reports.

Third, the report states that hospitals need to collaborate to provide emergency specialty
coverage. The report cites the Trauma Care Systems Planning and Development Act as
@ program that will lead to this type of collaboration. ACEP supported thls legislation
and Is actively working for additional funding so that the goals of the program can be
achieved. However, the trauma program established by that Act cannot, alone,
accomplish the level of collaboration called for in the report.

Fourth, the College concurs with the finding that specialists perceive themselves to be
at increased risk for malpractice liability in the emergency department. ACEP believes
that this perception must be addressed as part of an overall reform of the liability system.

Last, ACEP strongly agrees with your recommendation that hospitals enforce their bylaws
that require specialty physicians to provide emergency care. Hospitals and physicians
must work together to continus to provide emergency coverage.

¥ you have any questions or wish to have our assistance in expanding upon any of these
comments, please do not hesitate to contact Roslyne Weiner of our Washington Office at
(202) 728-0610.

Sincerely,

Colin Cc. ser. Ph.D.
Executive Director

B-19



Page 2

The only data we are aware of that could be used for this research is the National
Practitioner Data Bank maintained by the Bureau of Health Professionals in the Health
Resources and Services Administration (HRSA). This database contains national data
‘rom 1990 to the present. We believe HRSA would be the logical sponsor of further

research on this topic.

Ongoing Research. HCFA has several ongoing demonstrations and programs that
address various problems in hospital emergency departments. Although these
demonstrations and programs do not specifically address the issue of physician specialty
coverage in emergency departments, they do have an indirect impact worthy of note
when considering this topic.

. In January 1991, HCFA funded the first year of a 3-year
emergency room triage demonstration at Highland General
Hospital in Oakland, California. The explosive demand for the
services of Highland’s emergency department had severely strained
the resources of the hospital. The demonstration was mandated
by section 6217 of the Omnibus Reconciliation Act of 1989
(OBRA 89}, which provided up to $500,000 funding per year.
Most of the funds have been used for the hiring of mid-level
practitioners to treat patients needing only minimal services. This
frees up physicians to treat more seriously ill patients. In addition,
patient advocates were hired to ease stress among patients and
practitioners in this crisis-laden environment by helping with
scheduling and by answering non medical questions.

The Essential Access Community Hospital program, mandated by
OBRA 839, and the Montana Medical Assistance Facility
Demonstration, mandated by the Social Security Act Amendments
of 1983, take unique approaches to the provision of emergency
services in rural areas. Both programs established limited-service
hospitals and provide for emergency departmem staffing in these
facilities by mid-level practitioners. In addition, these programs
encourage the establishment of networks of facilities that together
provide the full range of medical services. Patients who require
services that are not available at the limited-service facilities can
be quickly transferred to better equipped full-service hospitals
where the range of highly specialized physicians referred to in this
audit may be found.



Comments on "Specialty Coverage in Hospital Emergency Departments"
Page Two

(4) Consequences to patients: We would particularly like to learn
more about the corisequences this problem has for patients. The
draft report touches on this on page 6, noting the "downgrading or
Closure of emergency departments, diversion of ambulances to other
facilities, or treatment of serious trauma cases by physicians
without the proper training." It would be valuable to take this
analysis a step further by examining what happens to patients in
each of these situations in terms of trauma, cost, and clinical
outcomes.

(5) Lack of specialty coverage as basis for patient transfers:
The draft report notes that the federal patient transfer law has
contributed to specialty physicians' reluctance to work in
emergency rooms. But there is also a question as to the
relationship between this problem and the incidence of "patient
dumping". The federal law only requires hospitals to screen
emergency patients "within the capability of the hospital's
emergency department," and to provide stabilizing treatment "within
the staff and facilities available at the hospital." 42 U.S.c. §
1395dd(a) and (b) (emphasis added). We are very interested in the
question of how often a lack of specialty coverage is used as the
basis for a "legitimate" transfer under this law.

(6) Direct employment of physicians as strategy to alleviate
problem: You note that this report is an offshoot of your earlier
study examining the effect of state laws that prohibit hospitals
from employing physicians. That study found that such prohibitions
make it harder to staff emergency services in general and specialty
emergency services in particular, although these laws were not
viewed as a major factor contributing to the specialty coverage
problen. Even in states that permit direct employment of
physicians, most hospitals rely on on-call contract staff for
emergency specialty coverage.

However, it seems like the relationship between these issues
has some implications for addressing the specialty coverage
problem. Why don't more hospitals choose to directly hire
specialty physicians to ensure emergency coverage? Given the
absence of legal prohibitions in most states, should hospitals be
encouraged to reconsider this option as one strategy in addressing
this problem? Alternatively, as part of regional collaborative
efforts, could several hospitals jointly hire such physicians who
could alternate shifts between different hospitals or be on-call to
more than one of them?



a

Ga DEPARTMENT OF HEALTH & HUMAN SERVICES Otfice of the Secretary

*

—e—
The General Counse!
Washington, D.C. 20201

NOTE TO RICHARD KUSSEROW

Re: OIG Draft Report: "Specialty Coverage in Hospital

Emergency Departments" OEI-01-91-00771

Both editorial and substantive comments are noted in the body
of the attached report. The following sets forth just the
substantive comments.

1.

The report never defines the term "specialty coverage"
except by implication. By sending the survey to
orthopedic surgeons, neurosurgeons, plastic surgeons, and
obstetricians/gynecologist, there is an implication that

these are the types of physicians who provide "specialty
coverage."

In the Executive Summary and on page one there isa
description of who is protected by the statute. The
report presently reads that the statute requires
treatment of persons with emergency medical conditions,
including women in labor. However, not all women in
labor are protected by the statute, only those women who
are having contractions and there is inadequate time to
effect safe transfer prior to delivery or the transfer
may pose a threat to the health and safety of the mother
or the unborn child. Therefore, we suggest the sentence
be amended to read: “Under the Federal patient transfer
law Medicare-participating hospitals must meet a number
of specific requirements regarding treatment of persons

with emergency medical condition, including certain women
in labor."

“on page four, the report states that specialty physicians

are located overwhelmingly in metropolitan areas because
many speciality pnysicians are attracted to the major
university and teaching hospitals in urban areas. Is
there support for this statement?

On page eight, there is a statement that an on-call
physician who refuses or fails to appear at the hospital
is subject to penalties under the law. This statement
should be modified to state that the physician may be
subject to penalties under the law, as it depends on the
facts and circumstances of the refusal or failure to
appear.



FIGURE 2

HOSPITALS ENCOUNTERING DIFFICULTY ENSURING
EMERGENCY SPECIALTY COVERAGE, BY COMMUNITY

100%
COMMUNITY
80% By wx
738 [| vie
0% 59%
48%
41%
40% 39% 39% 0%
26% 23%
20%] 19%
0%-

Neurosurgery Plastic SurgeryOrthopsedic Surgery OB/GYN Pediatrics

Source: OIG/OEI national mail survey of hospital administrators, May 1991. N=447

The types of emergency cases treated at urban hospitals tend to differ from those at
tural hospitals and reflect the social problems of cities. One California neurosurgeon
we spoke with said that many of the emergency patients he treats are victims of "the
very high level of continuing high-intensity violence that occurs" in the city where his
hospital is located. Inner-city emergency departments need specialty physicians to
provide trauma care for penetrating injuries, such as gunshot or stab wounds
associated with crime, drug wars, and gang violence.

Thirty-six percent of hospital administrators report that ensuring specialty coverage in their
emergency departments has become more difficult over the past two years.

There appear to be no parameters on how many specialty physicians are needed in an
area to ensure adequate emergency coverage. Neither the medical specialty societies
nor the American Hospital Association (AHA) was able to provide us with a definition
of medical specialty shortage areas. Nevertheless, a substantial but growing minority
of hospitals in both urban and rural areas report increasing difficulty in furnishing
emergency specialty coverage. We were told repeatedly by emergency department
directors and hospital administrators that staffing their on-call panels has become
steadily more challenging.



Page seven

commitment to further and more intensive involvement. There is
an inescapable psychological burden placed on the neurosurgeon
who must awaken at 3:00 A.M. after a long surgical day to treat
what may be a difficult and desperate case realizing at the same
time that due to the severity of the injuries and the frequent
youth of the patient a major claim for negligence can develop.

Further research into emergency room malpractice
incidence or risk management strategies is not going to encourage
surgeons to enthusiastically assume a further role in neurotrauma
care.

It is probably an unacceptable financial burden for a
hospital to take on the insurance risk for all of its staff
members involved in emergency care. The pricing of malpractice
insurance for hospitals and physicians depends on their being
more than one "deep pocket".

There has to be further incentive for involvement with
trauma by the Federal Government limiting or doing away with the
malpractice exposure in specialty trauma care.

Finally, one wonders if there would be any problem in
staffing emergency rooms if the following scenario existed:

In return for a hospital maintaining a trauma service
based on the “American College of Surgeons Hospital and Pre-
Hospital Resources for Optimal Care of the Injured Patient" that
institution and its trauma surgeons would be legally freed of
malpractice risk and that there be some rational level of
compensation for the neurosurgeons involved in delivering care.
A continuation of these benefits would depend on the institution
meeting site review and demonstrating a commitment to excellence
in trauma care.

Conclusions:
Ovr conclusions, very simply stated, are similar to
yours though we probably approach the solutions from a somewhat

different vantage point:

I. Development of trauma systems based at hospitals
with adequate facilities and neurosurgical manpower.

Il. Compensation for uncompensated care to both
hospitals and neurosurgeons.

Til. Statutory relief of malpractice exposure for
specialty physicians involved in emergency care.

B - 33



Th
American
College of
Obstetricians and

Gynecologists

May 29, 1992

Richard P. Kusserow

Inspector General

Department of Health & Human Services
330 Independence Avenue, SW, Room 5246
Washington, DC 20201

Dear Inspector General Kusserow:

The American College of Obstetricians and Gynecologists (ACOG), an organization
representing more than 31,000 physicians specializing in women's health care,
appreciates the opportunity to comment on your draft report “Specialty Coverage in
Hospital Emergency Departments." Emergency departments are a key part of our health
care delivery system and assuring adequate specialty coverage is critical. We believe this
report will encourage further review of the problem and could stimulate appropriate
actions.

Many factors make it difficult to assure adequate specialty coverage and accordingly,
multifaceted solutions are needed. !n our view, financing of emergency services is a
major problem, however, the report glosses over financing by Stating that physicians make
a lot of money. Incomes of physicians is not the issue. if the reimbursement for
emergency services doesn't compensate a physician adequately for his or her time, as
compared to oiher services, physicians may make an economic decision not to provide
emergency services. Furthermore, for many emergency rooms a large portion of care is
totally uncompensated. A problem for rural hospitals is the lack of adequate numbers of
soecialty physicians in the community. Thus, rural hospitals experience greater difficulty

obtaining specialty coverage. The report would be improved if these two factors were

‘amined in greater detail and recommendations were made for dealing with the problem
in these areas.

Turning to the specific recommendations for action, we do not have major problems with
what is included, but we believe they should be strengthened.

AR. Stree. SW! Washington. DC 20024-2188 (20216 38-5577
B- 20



inspector General Robert P. Kusserow
May 29, 1992
Page 3

Again, thank you for giving us the opportunity to comment on the draft report. If you
would like any additional information, please don't hesitate to contact us.

erely,

A.

Harold A. Kaminetzky,
Director - Practice A

HAK:B:drt



compensation reported a median income of $338,692 for neurosurgeons, $274,255 for
orthopaedic surgeons, and $197,745 for obstetricians/gynecologists.'°

Forty-seven percent of specialty physicians responding to our survey consider the Federal
patient transfer law to be a serious drawback to participating in emergency care.

The Federal patient transfer law (referred to as COBRA, because it was enacted in
the Consolidated Omnibus Budget Reconciliation Act of 1985) has heightened
specialty physicians’ anxiety about providing emergency department coverage. This
law is designed to guarantee patients medical treatment for emergency conditions
regardless of their ability to pay. Yet, many physicians resent it as an intrusion into
their clinical decisions. The law adds to specialty physicians’ concerns about
reimbursement and liability in the emergency department. COBRA does not require
specialty physicians to serve on-call panels. But if a physician agrees to be on-call for
emergency duty and fails or refuses to appear at the hospital within a reasonable
period of time after notification, the physician may be subject to penalties under the
law, depending on the facts and circumstances of the refusal or failure to appear.

Fifty-nine percent of the specialty physicians responding to our survey reported that
they provide emergency department coverage at two or more hospitals. Reflecting a
concern expressed by some of these specialists, one neurosurgeon stated, "There are
legitimate times when we are tied up in surgery and not available . . . [but] the
Federal patient transfer law does not address such a problem." Although a few
specialty physicians suggested that ambiguities in the Federal patient transfer law
might lead them to limit their participation in emergency care, to date no case has
been prosecuted against a physician who failed to appear at one emergency
department while caring for patients at another. We were unable to find any data
documenting how many physicians actually have withdrawn from emergency service
due to COBRA requirements.