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American College of Emergency Physicians
November 16, 2023

Physician Staff Requirement in Emergency Departments

Model Legislation and Toolkit

Purpose

The American College of Emergency Physicians (ACEP) is a staunch supporter of physician-led team-based care that ensures that every patient has access to high quality medical care from an educated and trained physician.

In 2023, Indiana ACEP secured passage of legislation that requires a physician be on-site, on-duty, and responsible for the emergency department. This new legislation compliments state regulations in place in the states of California1, New Jersey2 that also require a physician on-site in a hospital emergency department. Additionally, California has a law that is very similar to EMTALA the defines who is allowed/required to do emergency service medical screening and stabilizing treatment.

The following toolkit model legislative language based on the Indiana law as well as key considerations when crafting and lobbying for a bill or regulation.

Why It Is Important

Emergency medical care is a unique form of medicine that requires immediate, lifesaving decision-making to determine a diagnosis and the appropriate treatment without the benefit of a prior relationship with the patient and often without any knowledge of the patient’s medical history.

Physicians are uniquely trained for this fast-acting, high-risk decision-making required in the emergency department. Nurse practitioners and physician assistants do not have the extensive education and training necessary to provide the same level of quality emergency medical care. As such, ACEP believes that non-physician practitioners should not staff emergency departments without an on-duty physician to coordinate emergency care teams.

Key Points on Developing and Lobbying the ED Staffing Legislation

Draft Language

  • ACEP believes the gold standard should be board-certified emergency physicians present at all times. However, a state’s political environment could make it difficult to pass a bill that includes language requiring board certified emergency physicians. For example, in Indiana, many groups and hospitals still use grandfathered physicians who are family medicine (FM) trained, especially critical access and rural sites, who do not have sufficient staff board-certified in emergency medicine. This would immediately limit their ability to practice at a single coverage site.
  • Additionally, Indiana encountered an issue with adding the term "emergency" in front of physician, because it is not technically a defined term within state law. Doing so would have required defining what an emergency physician is and adding that into the legislation. “We would have to do so without the board-certified aspect due to above, unless we planned to alienate the grandfathered FM physicians or restrict rural hospitals using their current physicians who may just be FM. We felt that this would potentially overcomplicate the language and created more enemies against the bill that would prevent its ability to pass,” Dr. Dan Elliot, Indiana Chapter Past-President.
  • The language describing the physician as "who is primarily responsible" was a way to make sure small hospitals that only have an EM physician overnight who responds to codes, rapid responses, etc. wouldn't be affected by this. However, the intent is to make sure hospitals don't use the hospitalist as the physician and only have a nurse practitioner (NP) or physician assistant in the ED. Including “on-site” is to prevent EDs from being staffed by a tele-doc with only a NP or PA present in the department.

Mitigating Opposition

  • Critical access hospitals attempted to exclude themselves from the requirements of the bill, which would have defeated the purpose. This was later removed. The counterpoints from some hospital association members is that if they can't get physician staffing, then they will have to close the ED. Indiana ACEP leaned on the ACEP taskforce study on the likely increase in EM physicians as well as the Rand study (Indiana specific study) that showed that overall physician compensation was 4th lowest amongst states as a whole (not specifically Emergency) arguing that reimbursement rates could be raised to better attract physicians to staff the departments if needed.
  • Indiana ACEP made a point to reach out to Coalition of Advanced Practice Registered Nurses of Indiana (CAPNI), which is the lead state NP coalition pushing for independent practice, to discuss the language prior to introducing the bill to explain that it was trying to prevent hospitals and corporate staffing organizations from putting their members in a position to fail at these sites without any back-up just to save money on staffing. CAPNI never publicly opposed the legislation, despite pushing for independent practice with other bills.

Emphasize That the ED Is Different

Model Provisions

*Note: To be implemented, your state’s citations affected by the change in the model provisions below must be consulted (e.g., in Indiana this is IC 16-21-2-14.5.). The following provision is the digest of the introduced version by Indiana ACEP (HOUSE BILL No. 1199).
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Synopsis: Emergency departments. Requires a hospital with an emergency department to have a physician onsite and on duty who is primarily responsible for the emergency department at all times the department is open.

A hospital with an emergency department must have a physician onsite and on duty who is primarily responsible for the emergency department at all times the emergency department is open.

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*Language was later included in a comprehensive health care bill, Senate Bill 400. The critical access hospital exemption language was part of the original version of SB 400 and subsequently removed at the first committee hearing.

Drafting Notes:

  • The statutes and regulations in each state vary significantly. For instance, some states do not have legal sections (law or regulation) specifically defining and regulating emergency departments nor even hospitals. It is advisable for chapters to consult with their lobbyists or ACEP State Government Relations staff to determine the best path, legislation or regulation, for the language.
  • It is not critical to know exactly where the language must fit within the state’s statutes. State legislatures have bill drafting offices that will determine how the policy fits into the current statutes. The sponsoring legislator will make this request when submitting the policy for a bill draft.
  • See Attachment – Sample Definitions

Current Regulatory Language

As mentioned in the opening paragraph, California and New Jersey have regulations on staffing requirements for emergency services and the emergency department.

1 - California state regulations (Cal. Code Regs. tit. 22 § 70415)

            Basic Emergency Medical Service, Physician on Duty, Staff

(a) A physician trained and experienced in emergency medical services shall have overall responsibility for the service. He or his designee shall be responsible for:

    1. Implementation of established policies and procedures.
    2. Providing physician staffing for the emergency services 24 hours a day who are experienced in emergency medical care.
    3. Development of a roster of specialty physicians available for consultation at all times.

(b) All physicians, dentists and podiatrists providing services in the emergency room shall be members of the organized medical staff.

(c) A registered nurse qualified by education and/or training shall be responsible for the nursing care within the service.

(d) A registered nurse trained and experienced in emergency nursing care shall be on duty at all times.

(e) There shall be sufficient other licensed nurses and skilled personnel as required to support the services offered.

2 - New Jersey state regulations (N.J. Admin. Code § 8:43G-12.5)

            Emergency department staff time and availability

(a) At all times at least one licensed physician who meets at least one of the qualifications in 8:43G-12.3(b) shall be present in the emergency department to attend to all emergencies.

(b) There shall be a physician specialist on call to the emergency department for each major clinical service provided by the hospital, including a physician who is credentialed by the hospital to care for children and who is either board certified in pediatrics or has attained provider status in Advanced Pediatric Life Support or Pediatric Advanced Life Support.

    1. The hospital emergency department shall comply with the requirements set forth in 8:43G-5.1(l)2 for all emergency department patients deemed by a hospital clinical provider to require emergent care, regardless of whether the patient lacks a primary care physician. In addition, the hospital clinical provider making that judgment shall make a determination as to whether the responding on-call physician may be a resident or, rather, the emergency requires a physician who has completed all residency requirements.
    2. A standing transfer agreement with a facility that can provide an appropriate level of care for pediatric patients may be substituted for the on-call physician credentialed and qualified to care for children if the hospital does not have the capability of providing such a physician for on-call duty.

(c) At least one registered professional nurse who has successfully completed the Emergency Nursing Pediatric Course, Advanced Pediatric Life Support or Pediatric Advanced Life Support shall be present at all times in the emergency department. The hospital shall have in place a protocol to increase nurse staffing based on volume and acuity.

ACEP Policy on Physician Assistants and Nurse Practitioners: https://www.acep.org/patient-care/policy-statements/guidelines-regarding-the-role-of-physician-assistants-and-nurse-practitioners-in-the-emergency-department

AMA Policy Adopted June 2023:

PROMOTING SUPERVISION OF EMERGENCY CARE SERVICES IN EMERGENCY DEPARTMENTS BY PHYSICIANS - The American Medical Association advocates for the establishment and enforcement of legislation and/or regulations that ensure only physicians supervise the provision of emergency care services in an emergency department.

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