Many hospitals around the country are encountering problems with specialist on-call coverage for their emergency departments. The reasons are varied and largely involve problems with obtaining specialty care for un-funded patients. Many hospitals are attempting to address this problem by paying physicians to take emergency department call. Due to the Stark prohibition on self-referral, some hospital-physician “on call” arrangements may be problematic. One hospital asked the Office of Inspector General ("OIG") for an opinion on their program and while that advisory opinion was favorable to that hospital’s program, it may call into question the legality of other less rigorous plans.
            Sonnenshein Nath and Rosenthal, LLP, who helped design the hospital’s “on call” program and drafted an opinion request from the OIG, report the following information concerning OIG Advisory Opinion 07-10. This was the first advisory opinion addressing a hospital's payment to physicians for providing on-call and indigent care services.  In the opinion, the OIG declined to impose sanctions on the applying hospital for paying most physician specialists on the hospital's medical staff in return for their on-call and indigent care services.  

Program Description
             The hospital that made the request for the opinion had in recent years experienced significant difficulty in obtaining physicians' agreement to provide on-call coverage to the hospital's emergency department ("ED"). They had difficulty getting physicians to agree to provide follow-up care to uninsured/under-insured ED patients. The hospital established a program that involved the hospital paying physicians on the medical staff in exchange for their agreeing to:

1. Participating in “on call” ED schedule rotation.
2. Responding to time frames for ED calls.
3. Providing follow-up inpatient care to admitted ED patients that they treated regardless of the patient’s ability to pay
4. Providing consulting services, while “on-call” to patients of other physicians
5. Completing medical records in a timely manner.

            The hospital's program covers nearly all surgical and medical specialties. The specific specialties covered under the program are General Surgery, Obstetrics/Gynecology, Neurosurgery, Orthopedics, Urology, Pulmonary, Infectious Disease, Cardiology, Anesthesiology, Hospitalists, Gastroenterology, Renal/Nephrology, Otolaryngology, Neurology, Oral/Maxillofacial Surgery, Endocrinology, Ophthalmology, and Hematology/Oncology.
            Each physician participating in the program receives a per diem payment for each day he/she is on-call.  Payment for the various specialties varies depending on the typical severity of illness, likelihood of having to respond to the ED, likelihood of having to respond to uninsured patient consults, and the degree of follow-up care normally required for inpatients from the ED. Weekends/holidays are paid at a higher rate for all specialties.
            The call schedule developed for all physicians in each specialty is distributed as equally as possible with each physician being required to provide 1.5 days of uncompensated call coverage. This 1.5 days is subtracted from the total dates and only the difference is paid at the per diem amount.The hospital sought an opinion from a nationally recognized consulting firm regarding the reasonableness of the per diem plan. It was the consulting firm’s opinion that both the method and the amounts of the payments were consistent with fair market value.
            The hospital also designed some safeguards into the system that included monitoring response times and collaboration with the hospital’s care management staff and Medical Staff Performance Improvement Committee. Physicians not in compliance with these requirements will have payments suspended until they comply or are terminated from the program. 

OIG Opinion
            The OIG wants to "scrutinize closely”, on a case-by-case basis, each on-call pay program. They are concerned that there is the potential for a program to pay for no services (since most medical staff bylaws require that physicians participate in call coverage) and "double pay" physicians.  They are concerned that some physicians will respond to call and receive payment from a third party payor as well as the on-call subsidy. Therefore, they believe it is important for the probability of physicians being called in be factored into any program design. All programs must be designed to address an actual need and obligate the physicians to provide actual, needed services and be compensated in relation to the likelihood of compensation from third parties.
             The OIG specifically noted the fact that the lack of call coverage prior to the implementation of the current program had resulted in the hospital having to transfer patients to other facilities with appropriate on-call specialists.  This problem lowered the probability that the hospital had implemented this program to garner referrals. The OIG also noted that the most likely reason physicians did not want to take call was the high number of uninsured and under-insured patients.
            It was also important to the OIG that the hospital required, in addition to taking call, the obligation to assume inpatient follow-up care. They stated that the plan covered "substantial, quantifiable services, a large portion of which are furnished to uninsured patients in the ED and afterwards."
              The OIG noted that the payment methodology put "the burden on a physician and the likelihood that a physician in a particular specialty will actually be required to respond while on-call, as well as the likelihood that he or she will have to provide uncompensated treatment, and the likely extent of that treatment."  The OIG also noted that some other hospitals’ on-call plans were "less plainly tied to tangible physician responsibilities, and which may represent little more than illicit payments for referrals."
             The OIG recognized that other safeguards had been implemented to reduce fraud such as: being open to all physicians, equal distribution of the call schedule, requirements to provide follow-up care, and documentation requirements. They also noted that the program was implemented with no cost to the government.
            Since the hospital had already implemented the plan they were able to provide data that patient satisfaction had improved significantly. This was due to increased efficiency and physician responsiveness as well as increased consultations and follow-up care.
            It would appear from this advisory opinion that only a well-designed plan for payment of on-call specialists will be acceptable to the OIG. It would be important for any facility to consult with an attorney prior to implementing such a program. 

OIG Advisory Opinion 07-10 can be found at:
http://oig.hhs.gov/fraud/docs/advisoryopinions/2007/AdvOpn07-10A.pdf