The progressive difficulty in obtaining neurosurgical coverage of hospital emergency patients, in the ED and in the hospital units such as the intensive care unit, is of increasing concern to neurosurgeons as well as the hospitals and the communities they serve. This problem has many causes. In some communities, enlarging groups of neurosurgeons attempt to provide coverage by themselves as a way of dominating the market, only to find they are limited by workforce shortages. Increasingly, neurosurgeons are sub-specializing, as in spine surgery, reducing their expertise in cranial work to include head trauma, thus limiting their availability. In other situations, age of the neurosurgeon and falling collection rates limit the interest of neurosurgeons in providing coverage. In most situations, the negative impact of the disruption of elective practice by on-call responsibilities is determinative [4].
This reluctance on the part of neurosurgeons to be available for call for any reason comes into conflict with a number of policies addressing the need for on-call service. Setting aside the ethical principles of the profession that require the neurosurgeon to place patient considerations first, the neurosurgeon has other requirements to provide on-call services as an obligation of his profession and practice. First, he has an obligation to be available to his patients as they need. This requires that he provide for coverage of those patients' needs when he is not available. He arranges this by having mutually agreeable coverage arrangements with other neurosurgeons from his group, if he is in group practice, or from his community, if he is in solo practice. He may have on-call requirements to the hospital where he has medical staff privileges, as a requirement of staff membership. In addition, most neurosurgeons are affected directly, or indirectly, by hospital responsibilities arising from the federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA) that requires hospitals that service Medicare patients maintain EDs, staffed by qualified medical personnel; qualified medical personnel must include physicians who can screen patients for the existence of emergency conditions and stabilize them [3]. However, the law applies whether the patient is covered by Medicare; thus, it applies whether the physicians take Medicare assignment.
Finally, neurosurgeons may have requirements to provide on-call services to a hospital because they have a contract that pays them, usually in the form of a per diem, to be available for such coverage. Such arrangements have been controversial when implemented. Some suggest these arrangements violate the Stark law prohibiting financial relationships between the referring physician and the facility to which the physician refers for a group of designated services [6]. Others suggest they violate the Medicare anti-kickback laws, which prohibit the payment to anyone for making referrals to a Medicare provider [1]. The Stark laws are per se laws meaning that intent to break the law is not a requirement for violation. However, the anti-kickback laws require intent or at least a willful disregard for the provisions of the law on the part of the provider.
A solution has appeared [2]. The Office of the Inspector General of the Federal Department of Health and Human Services (the OIG) has issued an advisory opinion that is in support of payment by hospitals for on-call services by physicians [5]. Individual health care providers, usually hospitals, often ask the OIG for opinions regarding planned activities, the correctness of which is uncertain regarding Medicare law. Although the opinion applies only to the requesting institution, the facts are so clearly laid out in the opinion as well as the basis for the opinion that this one opinion may form the blueprint for other institutions who want to engage in activity similar to that of the requesting institution. And sometimes, because the issues may be very similar, the opinion addresses concerns involving both Stark and the anti-kickback laws.
In the case of payment by hospitals to physicians for on-call services, the OIG, in its approval, listed several features that it felt such agreements should contain. The payment should reflect the fair market value for similar services in the community and should not accrue to the costs of federal health services such as the costs to the hospital of Medicare. The agreement should justify the need for payment for services and how it furthers the hospital's mission and commitment to the community. And appropriate documentation of the performance of the on-call physicians should be kept to prove they are providing the services. The major concern in all anti-kickback questions is whether the payment offered to the physician is for the services of the agreement or for inducing the physician, outside the agreement, to increase referrals to the hospital. The OIG opinion does not directly answer this question; it simply blesses the arrangement.
There are no indications that the issue of on-call requirements is going to abate in the near future. Neurosurgeons are going to continue to face the problems associated with disruption of their elective practices by mandated on-call responsibilities as they strive to fulfill their obligations to their established patients, while witnessing declining revenue. Negotiating on-call agreements with compensation for being available now seems more of an option, with the OIG opinion in place. Of course, there are state laws related to on-call responsibilities and referral regulations that must be reviewed. Wise legal counsel would be in order.
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