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Physicians in Hospitals The Office of the General Counsel often receives questions from physicians regarding whether Florida law requires that specialty physicians be available 24 hours a day, seven days a week to provide emergency services and care in a hospital emergency room. 42 U.S.C. §1395dd (EMTALA), Section 395.1041, Florida Statutes, the “Access to Emergency Services and Care Act,” and Rule 59A-3.255, Florida Administrative Code, which implements the provisions of Section 395.1041, F.S., govern this area. These authorities do not provide that the only way that hospitals can ensure a service is provided in an emergency room 24 hours a day, seven days a week is by requiring physicians to be on-call 24 hours a day, seven days a week. Florida law also provides that hospitals can comply with their statutory obligation by entering into arrangements with other hospitals or physicians, or by requesting a service exemption from the Agency for Health Care Administration (“AHCA”). Section 395.1041(3)(d), F.S., requires that all hospitals must ensure the provision of emergency services within the service capability of the hospital “at all times, either directly or indirectly.” “Service capability” is defined by Section 395.002(26), F.S., to mean “all services offered by the facility where identification of services offered is evidenced by the appearance of the service in a patient’s medical record or itemized bill.” In addition, Rule 59A-3.207, F.A.C., requires that every hospital offering emergency services and care must provide emergency care within the hospital’s service capability 24 hours a day, seven days a week.” As such, as long as a service falls under the definition of “service capability,” a hospital is required to ensure that the service is available “either directly or indirectly” 24 hours a day, seven days a week. Neither Section 395.1041(3)(d), F.S., nor Rule 59A-3.255, F.A.C., require that a hospital must provide emergency services and care for all services within its service capability at all times by requiring physicians to be available 24 hours a day, seven days a week. The statute and rule provide that a hospital must comply with Section 395.1041(3)(d), F.S., either directly or indirectly, through: 1. An agreement with another hospital made prior to receipt of a patient in need of the services; or 2. An agreement with one or more physicians made prior to receipt of a patient in need of the services; or 3. Any other arrangement made prior to receipt of a patient in need of the service. In addition both the governing statute and the rule provide that, if a hospital determines that it cannot provide a service 24 hours a day, seven days a week, or that it cannot continue to provide a service 24 hours a day, seven days a week because of a significant change in circumstances, either through an arrangement with another hospital or with other physicians, it must request a service exemption from AHCA. Before 2003, CMS reportedly used an undocumented informal 3-physician "rule of thumb" which requires a hospital to ensure that it has 24 hour on-call coverage for any specialty for which it has three or more physicians. If fewer than three were on staff, then full-time coverage was not required. Under this rule, a hospital which has only one or two specialists in a given area could have less than full coverage for that specialty without being considered to be in violation of EMTALA requirements. The 2003 regulations expressly decline to follow a numerical approach, instead stating that CMS will consider "all relevant factors" in determining whether a hospital is in compliance with EMTALA requirements in maintaining its call list. The new regulations do not require 24-hour coverage for under-represented specialties when that is not feasible, they permit physicians to serve on call at more than one hospital simultaneously, and they permit the ER to direct the patient to the specialist, such as to his office or another hospital where he is working, to see and examine the patient. The regulations require that hospitals develop protocols for handling specialty needs when its specialists are not available on call. Section 395.1041(3)(d)3., F.S., and Rule 59A-3.255(4), F.A.C., govern the process for requesting a service exemption from AHCA. Section 395.1041(3)(d)3., F.S., provides, in pertinent part, that: A hospital shall not be required to ensure service capability at all times as required in subparagraph 1. if, prior to the receiving of any patient needing such service capability, such hospital has demonstrated to the agency that it lacks the ability to ensure such capability and it has exhausted all reasonable efforts to ensure such capability through backup arrangements. In reviewing a hospital's demonstration of lack of ability to ensure service capability, the agency shall consider factors relevant to the particular case, including the following: a. Number and proximity of hospitals with the same service capability. b. Number, type, credentials, and privileges of specialists. c. Frequency of procedures. d. Size of hospital. Rule 59A-3.255(4), F.A.C., provides that if a hospital submits a request for exemption, it must submit an application to AHCA identifying the service for which the hospital is requesting the exemption. AHCA has prescribed a form for submission of the exemption request, which is available form AHCA. AHCA is required to make a determination of exemption status and notify the hospital of the determination within 45 days of receipt of the request. Accordingly, Florida law does not provide that the only way that hospitals can ensure that a service is provided 24 hours a day, seven days a week is by requiring physicians who practice that service to be on-call 24 hours a day, seven days a week. Florida law also provides that hospitals can comply with their statutory obligation by entering into arrangements with other hospitals or physicians, or by requesting a service exemption from AHCA. More importantly, if a hospital has been providing 24 hour a day, seven day a week coverage for a service through an arrangement with physicians, and the circumstances at the hospital significantly change such that the hospital cannot provide coverage 24 hours a day, seven days a week for the service, the hospital is required to request a service exemption through the process described above. As a result, if the number of physicians available to cover a specific service change such that it is no longer practicable for the remaining physicians to provide coverage 24 hours a day, seven days a week, the hospital must either enter into a transfer arrangement with another hospital or request a service exemption from AHCA.This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: December 2009 END OF LIFE CARE MBelow is a summary of the Florida Statutes relating to end of life care. I. Do not resuscitate orders (Section 401.45) A. Health care providers may withdraw or withhold resuscitation from a patient if DNR order is presented B. Must be on State form C. Must be signed by patient, surrogate, proxy, court ordered healthcare guardian or person holding durable power of attorney with authority to make health care decisions D. Immunity from criminal prosecution or civil liability for complying with DNRO II. Advance Directives in general (Sections 765.101-.113) A. Stated legislative intent is that adults have the right to make decisions regarding their care including the right to refuse care B. Decisions of a surrogate can be challenged on an expedited basis by a family member or the attending physician C. Existence of an advance directive cannot affect a person’s life insurance or ability to get life insurance and cannot be a condition for receiving life or health insurance or health care services D. Immunity
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