One of the major crises facing ER docs nationally is the lack of
specialists who are available and willing to take ER call. I understand
their reluctance, because it's a huge disruption to their personal
lives and their private practices, and it's often an unreimbursed and
risky activity. But it's also always pissed me off, since when they
shirk this responsibility, it leaves us in the ER holding the bag,
trying to figure out what the hell to do with a patient in need of
specialty care (usually surgical services) but without the specialists
to care for them.
In most hospitals I've encountered, there's
this sort of ritualized dance that the hospital and the specialists
engage in wherein some specialty group will threaten to stop taking
call, and the hospital will threaten to take away their privileges, and
the docs will threaten to send their patients somewhere else, the hospital will prevail on their sense of duty, the specialists demand
compensation, the hospitals claim it's prohibited, and after several
back and forth steps they come to a negotiated agreement to maintain
the integrity of the call schedule. The exact nature of the agreement
depends on the specialty and the leverage each party brings to bear --
hand surgeons can do most of their work in outpatient centers, so their
threat to go elsewhere is potent, but the orthopods can't do their hips
& spines without the hospital and thus are not able to exact as
many concessions. It used to be unthinkable for hospitals to actually
pay doctors to just be on the schedule, but this seems to be more and
more common these days. More disturbingly, the greed and raw
opportunism exhibited by some of the specialists is appalling. They
don't want to take call, so when they get the hospital over the barrel
they ask for exorbitant sums, cynically figuring that either the
hospital will back off and let them out of call, or if they have to
suck it up they'll be well-paid for the inconvenience. I'm talking sums
of $1,000-$5,000 per day of call! Fortunately, those are the extreme
examples, but you can see how it would become unsustainable pretty
rapidly if the hospitals had to pay $365,000 annually just for, say,
ENT back-up. Then the neurosurgeons, and hand surgeons, and urologists
etc etc would want to get in on that action, and pretty soon you're
talking real money.
It's a disconcerting trend, so I was not
entirely pleased to see that the Health and Human Services Office of
the Inspector General (OIG) had
to be on call. If it makes it less likely that I'll have a call
roster full of holes, then that's a good thing, but if it accelerates
the stampede to the feeding trough, it might be self-defeating in the
end.
Then I read the ,
and it was actually pretty reassuring. The background: there are these
regulations called the Stark Anti-kickback regulations which basically
prohibit hospitals from giving money to doctors to provide referrals to
the hospital, and they have been very broadly interpreted to prohibit
hospitals from giving any money or in-kind compensation to doctors
except for clearly defined and legitimate services provided. There are
a number of "" that do allow some payments to occur in defined circumstances. But
being on call doesn't fit into any of these safe harbors. So some
hospital in the town of [REDACTED], which I hear is a lovely place to
visit in the fall, came up with a scheme to pay their specialists and
asked the OIG for an advisory opinion. The details are interesting:
- Instead of paying docs to be on call, they get paid piecemeal for unreimbursed consults or procedures performed while on call.
- The payment rate seems to be in the low to moderate range ($100-350 per).
- The arrangement is open to all docs on call and not just to certain favored specialties.
There is a substantial risk that improperly structured payments for on-call coverage could be used to disguise unlawful remuneration. Covert kickbacks might take the form of payments that exceed fair market value for services rendered or payments for on-call coverage not actually provided. Moreover, depending on the circumstances, problematic compensation structures that might disguise kickback payments could include, by way of example:This is just an advisory opinion specific to this hospital, but it's released publically as a guide to other facilities in similar circumstances, and it seems pretty clear that the OIG is trying to send a message that payment to on-call docs must be reasonable and narrowly crafted to avoid running afoul of Stark. I rather doubt that we'll suddenly see a lot of enforcement actions on the part of the OIG, this not really being one of their major priorities. If nothing else it provides a fairly strong argument for the hospitals as they engage in their kabuki with the specialists that, if they are going to pay their on call docs, lavish compensation is not going to fly.
(i) “lost opportunity” or similarly designed payments that do not reflect bona fide lost income;
(ii) payment structures that compensate physicians when no identifiable services are provided;
(iii) aggregate on-call payments that are disproportionately high compared to the physician’s regular medical practice income; or
(iv) payment structures that compensate the on-call physician for professional services for which he or she receives separate reimbursement from insurers or patients, resulting in the physician essentially being paid twice for the same service.