48 States & The Feds Don't Require a Doctor in the ER

Emergency medicine and family practice leaders agree that it is unsafe to have an ED without a physician. Indiana and Virginia legislatures recently passed on-site physician requirements.

An emergency department should have a physician on-site. Seems obvious, right?

According to a Virginia College of Emergency Physicians poll, “97% of respondents in Virginia believe that patients presenting to an emergency department deserve physician-led care.”

However, 48 states do not require a physician to be present in licensed emergency departments (EDs). Many of those states defer to federal Critical Access Hospital regulations, which stipulate that EDs must staff “a doctor of medicine or osteopathy, a physician assistant, a nurse practitioner, or a clinical nurse specialist, with training or experience in emergency care.”

In 2022, the presidents of the American College of Emergency Physicians and American Academy of Family Physicians wrote a joint letter to the US Department of Health and Human Services strongly advocating for the requirement for a physician to be present in every Rural Emergency Hospital (REH). From the letter:

Emergency and family physicians currently provide emergency care in rural communities across the country and will continue to do so once the REH designation takes effect. The proposed rule recognizes that an REH that is “overseen by a highly qualified physician with a high level of expertise in emergency medicine” would benefit patients. While CMS encourages REHs to have a physician with emergency medicine experience serve as their medical director, CMS only proposes to require REHs have one doctor of medicine or osteopathy on the professional health care staff but does not specify when physician supervision or involvement is required. 

ACEP and AAFP understand the workforce challenges that exist in rural areas. However, to ensure quality emergency care, it is critical that a physician with training and/or experience in emergency medicine provide the care or oversee the care delivered by non-physician practitioners. Emergency patients represent some of the most complex and critically ill patients in medicine, and effective management of these patients requires years of specialized training…

CMS should clarify that REHs must comply with existing Medicare supervision requirements, which require direct supervision of outpatient services furnished in hospitals and critical access hospitals. Rural patients should not be subjected to a lower quality of care solely because of their location. (Note: the text is bolded in the original document.)

Chart from the ACEP & AAFP letter:

The Department of Health and Human Services rejected this plea for ED patient safety. Per Jeff Davis, ACEP’s Director of Regulatory Affairs: 

CMS responded to our comments in the OPPS final reg by stating that the agency “believe(s) that the intent of the legislation is to ensure that REHs have the flexibility to determine who best meets the needs of their community while ensuring the provision of safe, quality patient care” and “expect(s) REHs to determine who is best to fill this role based on the scope of services provided by the REH and the population served.” Thus, despite our objections, CMS finalized a requirement that the REH be staffed at all times “by an individual who is competent in the skills needed to address emergency medical care” and “must be able to receive patients and activate the appropriate medical resources to meet the care needed by the patient.”

In other words, under the final policy, there is no guarantee at all that there be a physician on-site at all times, nor another non-physician practitioner with a certain standard or level of training necessary to handle all types of medical emergencies. All that is required is that there be a person who the REH deems “competent” to address emergency medical care. ACEP continues to believe that such a standard is unacceptable and could put patients at risk. (Note: bold and italics were present in the original post.)

In 2023, the Indiana College of Emergency Physicians took the fight for physician presence in every ED to the states. After concerted efforts and powerful testimony by INACEP’s leaders, the Indiana state legislature passed and the governor signed SB 400. The comprehensive healthcare bill included the following provision: “Requires a hospital with an emergency department to have at least one physician on site and on duty who is responsible for the emergency department.”

Reflecting on the passage of SB 400, INACEP President Lindsay Zimmerman, MD, FACEP said, "We are gratified to see that the Hoosier state recognizes the importance of physician-led care and look forward to continuing this very important work of advocating for our specialty."

Next came Virginia. After persistent lobbying from the Virginia College of Emergency Physicians, the Commonwealth’s legislature passed a bill requiring “any hospital with an emergency department to have at least one licensed physician on duty and physically present at all times.” 

"Virginia ACEP is proud that we will be one of the first states to require a physician onsite, on duty, and dedicated to the ED 24/7,” said Todd Parker, MD, FACEP, past president of VACEP. 

Two down, 48 to go. 

An insightful and lively 58-post discussion among rural emergency medicine leaders on ACEP’s engagED platform sheds light on the next steps. The thread, titled “EM needs to address rural ED staffing” was initiated by Wray Anthony “Tony” Gerard, MD, FACEP, a fierce advocate for improving rural emergency care. Per Dr. Gerard,

The dream of an "all [residency trained] EM workforce" is nearly complete, but we have ignored thousands of tiny rural ED's by allowing APPs to staff them.  The legislation from Virginia needs to be a model for "righting this wrong", and this will require a new paradigm that includes the many career EP's who trained in family medicine. Let's continue the collaboration with family medicine that we started when we worked with CMS on the new REH programs!

50 years ago EM committed itself to having a qualified emergency physician in every ED. And then we gradually abandoned this commitment by allowing APPs to work solo. We've tried to address rural ED staffing with 3 rural ED taskforces over 25 years (Moorhead et al, then 2020) but we always neglected one obvious solution to this - collaborate with family medicine. https://www.jabfm.org/content/jabfp/32/3/292.full.pdf

Commenters agreed with the following core tenets:

• In an ideal world, every US emergency department would be staffed at all times with residency-trained, board-certified emergency physicians. 

• However, a large share of rural EDs are staffed by family physicians.

• Family physicians are significantly better trained to staff EDs than independent PAs and nurse practitioners. 

• States should require a physician to be present at all times in every licensed ED.

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A few of the most impactful comments from the ACEP engagED Rural Section discussion:

Ashley Kochanek Weisman, MD

1) More collaboration with FM Physicians in frontier ERs is ESSENTIAL. I have worked in northwest arctic Alaska as part of a stellar FM/EM team. In these frontier settings, family medicine has as much to teach us about inpatient care, OB, and chronic disease management as we have to teach them about resuscitation and procedures. Those sites truly need a generalist who can help cover a clinic, medical floor, and assist with a delivery. We NEED FM and EM docs who are flexible, lifelong learners to optimize patient care.  

2) Shared FTE models that combine rural sites with larger sites are the way to happy physician staffing. In less remote settings, my current group at the University of Vermont Health Network has had tremendous success with shared FTE models between rural solo coverage sites and large community or academic sites. EM docs are never going to line up to practice exclusively in a solo coverage rural site, but we have 50+ ABEM docs that are thrilled to have a combined practice with anywhere from 25-80% rural shifts and the rest of their time in an academic or busy community site. This has been a great way for folks to have some variety, maintain all of their skills, and enjoy a little more time with patients in our rural places. Our most rural shop is 2.5 hours away from our academic site, and folks are happy to absorb the commute to have that variety and rural component. We should strongly advocate for and incentivize shared FTE staffing models for CAHs to ensure a qualified PHYSICIAN is available 24/7.   

Viktoria Laurin Koskenoja, MD

We may disagree about the exact workforce needed in each type of ED but my hope is that we could rally around a resolution that all rural EDs be staffed by a physician (FM or EM). 

There has been endless debate about what additional training would qualify an NP or PA to practice independently in an ED but I firmly believe the answer to that is medical school and residency. We do a disservice to rural patients by pretending that some non-standardized extra training brings non-physicians up to physician standard.

Heather Anne Marshall Vaskas, MD, FACEP

I'd like to second the comments made by Dr. Koskenoja regarding the importance of all EDs being staffed by a physician rather than an advanced practice clinician (PA, NP, CNS or other designation).  I am a member of the Board of Governors for ACEP's ED Accreditation Program, which is launching this spring.   There is a rural ED designation and the standard for staffing for this level of distinction is a physician on-site 24 hours/day.  I believe Dr. Koskenoja's resolution is most consistent with national policy and I would like to see all states replicate the legislation from Virginia.

Michelle Whitford, MD

It is absolutely essential to have an ER physician on at these facilities. Those are often my sickest and most complex patients, often more than one of them at once are in the department. I not infrequently run a mixed ICU in the ER bc we can't get patients out. As everyone in this group knows, they often appear via POV too. Terrible traumas, including farm and industrial injuries happen in these communities. I work where there is a foundry and people's limbs (or even bodies) get sucked into some of the machinery; it's grizzly. Sick peds patients. 

That is not the role NPs and PAs are supposed to play. We need to push to make admins and our larger center counterparts (who do not work in rural areas) understand that rural ERs are not bandaid stations and that our often poor, minimally insured patients who have the least access to care, deserve to have qualified physicians staffing those ERs. We aren't money makers, so those more concerned with money are first to take away resources from our patients. Anyone pushing to make it so only an APP is present in the ER needs to spend a week in a busy rural ED.

Joseph Minardi, MD, FACEP

Independent ED coverage by APPs is completely substandard and unacceptable.

Codifying similar legal standards to those in Indiana are a great step that I support at a national level.

From our group's experience, some of the sickest, most complex patients are initially seen in our rural emergency departments where resources are the least and timely transport to higher levels of care is far from a certainty. 

Gianluca Cerri, MD, FACEP

As we consider the future of healthcare in our rural communities, we must deliberate on the level of care we aspire to provide. The question we might ask ourselves is, in an emergency, who would we want by our loved one's bedside?

Wray Anthony Gerard, MD, FACEP

In my opinion, any model for staffing ED's that allows APP's to work solo, even with phone support or telemedicine, puts EM back 6 or 7 decades to when ED's were staffed by nurses, who would then call in the doctors they needed. 

Having a PHYSICIAN in every ED was one of the founding principles of EM.

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Passing state legislation like the Indiana and Virginia bills will not be a slam dunk. Gary Gaddis, MD, PhD, FACEP, explained what happened when the Missouri College of Emergency Physicians attempted to require physician staffing of every ED. “In MO in 2024 session, our Missouri State Medical Association (MSMA) introduced a resolution to try to obtain a law like that of VA and IN. The hospital association gutted it, now the proposed law would require those hospitals without a doctor in the ED to have a sign in 72 point type saying no doctor is on duty. We jokingly call it the "sign of shame". Backstory: Many chief executives of smaller MO hospitals began healthcare careers as nurses. They falsely claimed to have doctor on duty would break their budgets.”

As Todd Parker of the Virginia College of Emergency Physicians said, “Our patients deserve physician-led care at all times.” Physicians are uniquely trained for the high-risk decision-making demanded in the emergency department.

If you are interested in bringing Indiana’s and Virginia’s patient safety legislation to your state, check out ACEP’s resources at the following link: https://www.acep.org/federal-advocacy/scope-of-practice-efforts.

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