Testimony before the Ways and Means Committee, U.S. Congress

By Larry A. Bedard

The lack of availability and access to on-call physicians backing up our ERs is a chronic and worsening problem. The ultimate solution to the on-call crisis is to develop a universal basic health care system.

Statement of Larry Bedard, M.D., Senior Partner, California Emergency Physicians, Emeryville, California

Testimony Before the Subcommittee on Health of the House Committee on Ways and Means

July 27, 2006

Chair Nancy Johnson and members of the House Ways and Means Subcommittee on Health. I want to thank for the opportunity to share my perspective and views about the worsening crisis in the emergency care system of the United States.

In particular, I want to thank, Congressman Pete Stark who invited me to testify. In 1985 Congressman Stark introduced legislation, the "Emergency Medical Treatment and Active Labor Act" (EMTALA). When President Ronald Regan signed EMTALA into law on April 6, 1986 it answered the question for once and for all: "Is medical care a right or privilege?" EMTALA made emergency care a legal right.. Before April 1986 the only people who had a legal right to health care were prisoners. . After April 1985 all people had a right to go a hospital emergency facility and be evaluated and treated for an emergency medical condition. It is difficult to underestimate the impact that the passage of EMTALA had on the development and practice of emergency medicine in the United States. We needed EMTALA in 1986 and we need a strengthened EMTALA in 2006.

However, from the perspective of Emergency Physicians, the 1986 law was fatally flawed. EMTALA defined a responsible physician as one who "was employed by or contracted with a hospital." Since the vast majority of emergency physicians contract with hospitals, we were clearly responsible physicians. The California Medical Association's position however, was that EMTALA did not apply to on-call physicians. California law prohibits hospitals from employing physicians so clearly on-call physicians were not employees. The CMA did not consider medical staff privileges a contract.. In 1987 the California Chapter of the American College of Emergency Physicians (CAL/ACEP) working with a broad coalition of health care organizations passed SB12 which defined on-call physicians as responsible physicians under California transfer law.

In 1988, as an individual, I met with Congressman Stark and two aides. I explained to the congressman how EMTALA was fatally flawed. Emergency physicians can not stand alone! We and our patients need the availability and access to many on-call specialists if we are to provide high quality emergency care. In 1989, much to his credit, Congressman Stark successfully amended EMTALA to define on-call physicians as responsible physicians.

EMTALA, however, did not solve the access and availability of on-call physicians to back up hospital emergency departments. Indeed, many physicians refuse to take call, sighting the EMTALA unfunded mandates and threats of significant fines.

In 2005, nearly three quarters of emergency department medical directors indicate they had a problem with on-call back up.

The issue in 1985 was availability and access to on-call specialists.

The issue in 1989 was defining the role and responsibility of on-call physicians.

The issue in 2006 is the availability and access to on-call physicians.

I view the Institute of Medicine's Committee on the Future of Emergency Care in the United States Health System report "Hospital-Based Emergency Care At the Braking Point" from two perspectives. First, from the perspective of someone who has been involved in medical politics for more then 25 years. I have engaged in policy discussions as a Delegate to the American Medical Association and a Trustee of the California Medical Association As President of ACEP, my national professional association and CAL/ACEP , my state professional association, I represented the views and interests of emergency physicians in Washington DC. and Sacramento. Locally, I was an elected public official, serving on the Marin Hospital District Board. I just completed my tenure as President of the county medical society. Today, I'm glad to say I represent none of theses organizations!

Today, I speak from the perspective of an individual emergency physician. A pit doctor! A patient advocate. And believe me, when you present to the ER with a significant illness or injury you need your emergency physician to be your advocate. Your ER doc needs to help you navigate the chaotic and difficult world of emergency medicine. You're my patient, I'm your doctor.

I would like to share with the committee a recent experience I had in the ER. A mid 60ish Asian male got up from the dinner table, complained of a severe headache and collapsed. 911 was called and the patient was brought to the nearest hospital, our overcrowded ER. You do not need to a rocket scientist or a brain surgeon to know that an intracerebral bleed was the most likely diagnosis. The CAT obtained and read by the radiologist within 45 minutes did in fact reveal a large bleed. Since we had no neurosurgeon or neurologist on- call at our hospital, I contacted the neurosurgeon on call at the premier private hospital in San Francisco. When I asked for him to accept the patient in transfer, he informed me that he was not on call for my hospital and then hung up the phone. I next phoned San Francisco General Hospital, a nationally renowned trauma center. I was informed that they were holding their neurosurgeon in reserve for any trauma cases. At that time I thought maybe I should have told them the patient tripped and hit his head. I next called the University of San Francisco Medical Center, one of the premier academic centers in the country. The neurosurgery fellow indicated that he needed to talk with the neurosurgery attending and the hospital admissions staff. He promised to get back to me shortly. A half hour latter I received his call: "This is the kind of patient we would like to accept but we are boarding patients in the ED for 2 days. We will be happy to accept him in 2 days." At that time I called the patients personal physician, the ED Medical Director and the Chief of Staff of the Hospital to apprise them of the situation and seek their assistance in arranging an appropriate transfer. Hopefully, one of these physicians could call in a favor from a colleague. I next called Stanford University Hospital but their ICU was full and they were also boarding patients in their ER. Four physicians worked for more then 4 hours but we failed in our attempts to arrange a safe transfer for this patient. The emergency physicians guardian angel came to my and the patients rescue. The man's daughter, who worked for an internist, called her boss for help. This internist asked a neurosurgeon, who was not on call to accept the patient in transfer. After nearly 5 hours the patient was transferred to the premier private hospital for neurological care. . What is wrong with this picture? How ironic that the patients daughter could arrange for a transfer when four physicians could not. This situation occurred in San Francisco, everybody's favorite city. In San Francisco, a city with one of the highest physician to patient ratios in the country.

This single situation epitomizes many of the problems revealed in the IOM report. "Hospital Based Emergency Care At the Breaking Point." A fragmented system was unable to provide, coordinated effective emergency care. The ER was overcrowded, hospitals were on diversion, and boarders jammed up other ERs preventing transfer and the necessary on-call specialists were not available.

I want to congratulate the IOM's Committee on the Future of Emergency Care in the United States Health System for a comprehensive, thought provoking report on the current state of emergency care. I agree with virtually all their key findings. I believe they did an excellent job of evaluating and diagnosing the afflictions of the emergency care system. In my comments I will offer additional or alternative treatments or solutions to cure the problems identified in the IOM Report. Hopefully, my comments will help the committee to take appropriate actions in solving some of the problems that we face.

I applaud and share the committee's "vision for the future of emergency care that centers around three goals: coordination, regionalization, and accountability."

REGIONALIZATION : "The committee recommends that hospitals, physician organizations, and public health agencies collaborate to regionalize critical specialty care on-call services." I strongly support this recommendation.

Take the patient to the doctor, instead of taking the doctors to the patients. Take the patient to the right hospital with the right doctors the first time. If a hospital doesn't have a readily available on-call neurologist they should not receive stroke patients. Regionalization makes a lot of sense.

However, when such a regional system was proposed for the Sacramento area by the 1998-1999 CMA,CAL/ACEP,CHA "On-Call" Task Force, lawyers from Sutter, Kaiser and Catholic Health Care West (CHW) immediately cautioned their hospital systems that regionalizing emergency care may violate federal anti-trust law. They advised them against sitting down with competitors to allocate and divide market share. If we are to implement regionalized on-call services Congress needs to amend, federal anti-trust laws to expressly permit competing hospital and health care systems to regionalize emergency care.

ACCOUNTABILITY: "Accountability is perhaps the most important of the three goals of the emergency care system envisioned by the committee because it is necessary to achieving the other two. Lack of accountability has contributed to the failure of the emergency care system to adopt needed changes in the past. Without accountability, participants in the system need not accept responsibility for failure, and can avoid making changes necessary to avoid the same outcomes in the future." IOM Pg 73

"We don't need new laws, we just need to enforce the ones already on the books." Is a well worn cliché in Washington In the case of the emergency care system this is probably true.

I believe that we could address and solve many of the problems confronting the emergency care system if we proactively audited and enforced the EMTALA rules and regulations and interpretative guidelines. Under current law, EMTALA is only reactively .enforced. The only times there is an investigation is when some one complains. Isn't it a little strange that when 73 % of ED medical directors have problems with on-call coverage there are only a handful of EMTALA investigations? "To get along, go along." Is often an essential requirement for a medical director.. Working on a contract that can be cancelled in 90 days is another inducement to go along. I believe that a proactive enforcement of EMTALA many years ago would have helped us address, mitigate and solve some of the problems facing us.

The IOM request that "The federal government should support the development of national standards for: emergency care performance measurement; categorization of all emergency care facilities; and protocols for the treatment, triage, and transport of prehospital patients"

The question arises: Who should do the certification, monitoring, and auditing of emergency care facilities and pre-hospital systems?

"The committee recommends that the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) reinstate strong standards that sharply reduce and ultimately eliminate ED crowding, boarding, and diversion. Pg 122

I disagree with this recommendation. I believe that JCAHO is not the appropriate organization to accredit and certify emergency care systems. I am disappointed but not surprised to learn that JCAHO "under pressure from the hospital industry" withdrew requirements for hospitals "to take serious steps to reduce crowding, boarding and diversion" IOM pg 122. . In some respects, having JCAHO regulate the emergency care system is like having the proverbial fox guarding the hen house.

In my career, I have participated in several JCAHO inspections both as the Medical Director of the Emergency Department and as an attending emergency physician. We passed a recent inspection with glowing colors. What a joke. We moved the gurneys and the patient boarders from the hallways the night before JCAHO came and immediately returned them the moment they left. JCAHO had no interest in looking at the on-call schedule. If they saw the numerous holes for specialty coverage, perhaps they would have to do something about it.

In a 2005, ACEP study, 73 percent of EDs reported problems with on-call coverage, in contrast to 67 percent the year before. How many of these EDs and hospitals did JCAHO refuse to certify? How does JCAHO address and resolve the "problems with on-call coverage."? I think the committee should have answers to these questions before deciding which agency should certify and regulate the emergency care system.

Lead agency. "The federal government should consolidate functions related to emergency care that are currently scattered among multiple agencies into a single agency in the Department of Health and Human Services (OHHS)". I believe that there should be such a lead agency. . I believe that the lead agency should monitor, audit, accredit and certify emergency care facilities The federal government should not outsource the regulation of the emergency care system, a vital national interest, to JCAHO..

TRANSPARENCY Make the system transparent to patients. Educate the public about the access and availability of on-call specialists and hospital capability. Require hospitals to post in the daily paper, on TV or on the internet which on-call specialists are available. This would save tourists in San Francisco from bringing their sick kid to a hospital that did not have a pediatric department or service.

Make the system transparent to EMS pre-hospital providers. Ambulance destination guidelines should take into consideration the availability of on-call specialist. Dispatchers and paramedics need to know in real time what on call physicians are available.

Boarding and diversion. . "Current CMS payment policies should be revised to reward hospitals that appropriately manage patient flow. Conversely, hospitals that fail to properly manage patient flow should be subject to penalties" IOM Pg 121

The IOM recommendation is both a carrot and stick. I recommend trying the carrot first. Have The Centers for Medicare and Medicaid Services (CMS) s develop Pay For Performance (P4P) (P$P) incentives to award hospitals for improving efficiency in admitting patients from the ED. It would be relatively easy to monitor, record and audit admission times.- the time from the moment the emergency or other admitting physician writes the admit order until the time the patient arrives in their hospital room or surgical suite..

Disaster Management: The IOM notes:" With many EDs at or over capacity, there is little surge capacity for a major event, whether it takes the form of a natural disaster, disease outbreak, or terrorist attack." The truth be told that in many metropolitan area in the U.S., the emergency care system is not equipped to handle a busy Saturday night this weekend. One of the scariest aspects of the IOM report was how poorly we are prepared for a major disaster.

ON-Call Specialist :"One of the most troubling aspects of the current emergency and trauma care system is the lack of available specialists to provide on-call services to hospital EDs and trauma centers. This is particularly true for highly skilled specialties such as neurosurgery, interventional cardiology, and orthopedic surgery. "IOM Pg 17

Critical specialists are often unavailable to provide emergency and trauma care. This is a chronic and increasing problem in emergency medicine. Nothing is more painful, frustrating and depressing for an emergency physician then to have a patient suffer or die because there is no on-call specialist to back you up. Solving the on-call crisis is a dilemma with no easy solutions. However, I don't believe that you can solve boarding or ambulance diversion without solving the on-call problem.

One promising solution is to regionalize the services of certain on-call specialties, so that every hospital need not maintain on-call services for every specialty." IOM 8

Another issue that needs to be addressed is the malpractice liability exposure and costs for being an emergency physicians and an on-call specialist. You can not expect a physician to pay a 25-50% premium on their malpractice insurance because they have volunteered to serve on-call. for the ER.HR 3875, the Access to Emergency Medical Services Act of 2006 is a vehicle to address the malpractice issue.

A common approach and request is to throw more money at the problem. Physicians are resentful of EMTALA's unfunded mandate. Personally, I would welcome this solution but I realize that this is unlikely. The projected Medicare shortfall in 2040 is $63 trillion dollars. Society security is a relatively easy fix at $8 trillion. dollars. Medicare and Medicaid are much, much bigger problems.

Another approach is to ask the federal government to provide tax credits or tax deductions for charitable or uncompensated care. This is the policy of the American College of Surgeons.

Increasingly, physicians have responded to the on-call issues by demanding and receiving stipends from hospitals for agreeing to serve on-call. In essence, we are witnessing a transformation from an "implicit social contract" whereby physicians voluntarily provided on call services to their communities and hospitals to an "explicit financial contract" whereby physicians demand and receive significant stipends from hospitals for providing on-call services to their communities. On-call stipends which vary from a few hundred dollars to several thousands of dollars a day can only be afforded by some hospitals. These hospitals tend to be located in more affluent areas with good payer demographics. Hospitals located in areas with poor payer demographics cannot afford such stipends and are in danger of losing their on-call panels.

Congress created an EMTALA Technical Advisory Group (TAG) to review the interpretation and implementation of EMTALA. The EMTALA tag is very limited in scope. It can only recommend regulations or interpretative guidelines to the Center on Medicare and Medicaid Services (CMS). At one of the TAG's earliest meeting the American Hospital Association proposed requiring physicians to serve on-call as a condition of Medicare participation. This proposal was quickly rejected when it was pointed out that physicians would stop participating in or possibly boycotting Medicare. I have very little optimism that the EMTALA TAG it will develop necessary and creative solutions to the on-call crisis.

I offer the following Play or Pay system as a possible solution.

"Play or Pay" is a policy whereby an organization or group is required to participate in activities or programs or pay into a fund to support such activities or programs. For example, a "Play or Pay" policy has been advocated by many national specialties to require small businesses to either "play" by providing health insurance for their employees or "pay" into a fund that would then be used to purchase health insurance for their employees.

The On-Call Play or Pay system would requires physicians to "play" by serving on a hospitals on-call panel or "pay" into a fund that would be used to compensate physicians for serving on-call.

Every physician who graduates from an American medical school or who trains in a specialty residency program is heavily subsidized by the taxpayers. The tuition paid to attend medical school pays only a small proportion of the total cost to educate that physician. The difference between the total educational costs and the student's tuition is the amount of the of the taxpayers subsidy.

Implementation of an On Call Play or Pay system requires that the following issues be addressed.

EDUCATION/TRAINING ACCOUNT: An actuarial study would determine the amount of tax subsidy provided for medical school and residency training. Such actuarial studies could be done for individual medical schools and training programs or the average cost for medical school and residency could be used to determine each physician's tax subsidy. The tax subsidy would vary by specialty. Some specialties such as neurosurgery or cardiovascular surgery which are longer then family practice probably receive a larger taxpayer subsidy. Upon completion of their education and residency training each physician would be assigned their individual education/training account. The physician could then payoff their taxpayers' subsidy by "playing" by serving the community by being on-call at a local hospital or the physician could "pay" into a fund which would be used to pay for physicians who serve on-call. Another possibility would be for a physician to have a colleague serve on-call on their behalf. Each physician could pay off their individual education/training account over a 20-30 year period. For physicians who do not have hospital privileges, a Domestic Peace Corp for Health Care or some other public service could be established

PAY RATES: A system needs to be developed to determine the monetary value of serving on-call. One process would be to use the AMA's Reimbursement Update Committee (RUC) to determine the relative value of being on-call. The RUC use a consensus process to develop recommendations for CMS to assign relative value to new or modified physician services. CMS, although not required to, usually accepts the RUC's recommendations for assigning relative values to the Common Procedural Terminology (CPT) codes.

CMS then uses the CPT codes to reimburse physicians for providing necessary services to Medicare patients. Since the Medicare system is a `zero sum game' if some codes increases in value all other codes decrease in value. This is a strong incentive for the RUC not to overvalue codes.

Currently on-call stipends are based upon the ability of physicians to negotiate such stipends. Specialties in short supply such as neurosurgeons have used the EMTALA mandate to leverage on-call stipends of large and in some cases exorbitant amounts. The use of the RUC to establish on-call fees would probably result in more fair, equitable and reasonable stipends.

Disproportionate Share Hospitals: Currently the federal government has a policy whereby some hospitals are classified as disproportionate share hospitals (DSH). DSH hospitals by definition provide excess amounts of uncompensated or charity care. Because of their poor payer demographics physicians may avoid seeking medical privileges at such hospitals. Physicians who serve on-call at such hospitals should have a significantly higher "On call Pay Rate" in order to attract physicians to serve on call at these DSH hospitals. In addition, the money paid by physicians to pay off their education/training debt could be used to pay physicians for serving on call at DSH hospitals.

The lack of availability and access to on-call physicians backing up our ERs is a chronic and worsening problem. The transformation from an implicit social contract whereby physicians voluntarily served on call for the benefit of hospital privileges to an explicit financial contract whereby physicians receive stipends for serving on call is a solution that can only used by some hospitals and communities. Community hospitals that cannot afford to provide such solutions as paying large stipends require new creative solutions. Taxpayers in all communities have paid both federal and state taxes to educate and train physicians in the United States. The "On-call Play or Pay" program whereby physicians either play by serving on-call or pay off their education/training debts is a solution to the on-call problem.

The ultimate solution to the on-call crisis is to develop a universal basic health care system. The vision of Dr. John Kitzhaber, the former two term governor of Oregon is to "maximize the health of the population by creating a sustainable system which reallocates the public resources spent on health on health care in a way that ensures universal access to a defined set of effective healthservices." Governor Kitzhaber is working on a legislative approach to bring such a system to Oregon. His policies and perspectives can be viewed on the Archimedesmovement.org web site. Perhaps the committee should study this as a possible solution for providing universal care for the country.

I hope I have given you some ideas and solutions to think about. Thank you listening to the voice of this emergency physician. I will conclude by where the IOM report begins.

"Knowing is not enough, we must apply.

Willing is not enough; we must do"

Goethe

I urge you; Do reform the emergency care system. It is desperately needed.

Larry A. Bedard, MD FACEP