In back-to-back memoranda issued April 26 and April 27, the Centers for Medicare and Medicaid Services issued important guidance affecting the relationship between ambulance services and hospitals. In the April 26 memorandum, CMS clarifies that hospitals, including those without their own emergency departments, may not rely on 9-1-1 ambulance services as a substitute for their own capability to provide the patient assessment and initial treatment services required by Medicare regulations.
In the April 27 memorandum, CMS addresses two issues: First, it states that hospitals may not condition their acceptance of emergency transfers from other hospitals on the sending hospitals agreement to use a specific transport service designated by the receiving hospitals. Second, CMS clarifies its previous guidance on patient parking, or hospitals refusals to accept prompt responsibility for EMS patients brought to their EDs.
Hospitals Responsible, Not EMS
In the April 26 memorandum, CMS was apparently responding to one or more recent incidents in which a hospital lacking an ED relied on EMS personnel to provide care for a patient requiring emergency care because the hospital lacked the ability to do so.
The memo clarifies that Medicare conditions of participation (CoPs) require all hospitals including those without EDs to nonetheless have appropriate policies and procedures in place for addressing individuals emergency care needs 24 hours per day and seven days per week . These policies must include procedures to address situations in which a person s emergency needs may exceed the hospital s capabilities.
These required policies and procedures must address the hospital s capabilities to provide initial patient assessment and treatment and, when necessary, an appropriate transfer to another facility. CMS states that hospitals may arrange transportation of the referred patient by several methods, including the hospital s own ambulance service, the receiving hospital s ambulance service, a contracted ambulance service, or, in extraordinary circumstances, alerting EMS via calling 9-1-1.
CMS notes, There is no specific Medicare prohibition on a hospital with or without an emergency department calling 9-1-1 in order to obtain transport of a patient to another hospital. However, CMS cautions that a hospital policy or practice that relies on calling 9-1-1 in order for EMS to substitute its emergency response capabilities for those the hospital is required to maintain is not consistent with the Medicare CoPs. More specifically, CMS said, A hospital may not rely upon 9-1-1 to provide appraisal and initial treatment of medical emergencies that occur at the hospital. This issue may arise, for example, in specialty hospitals that primarily provide cardiac, orthopedic or other limited services.
Use of a Specific Transport Provider
The first issue in the April 27 memo arose from reports received by CMS regarding instances when a hospital refused to accept an appropriate transfer of a patient with an emergency medical condition unless the sending hospital used an air medical service owned by the receiving hospital for the transfer. (The same issues would arise if a receiving hospital attempted to condition acceptance of a patient on the use of sending the hospital s ground ambulance service.) In the new guidance, CMS points out that this practice violates the Emergency Medical Treatment and Active Labor Act.
EMTALA is best known for its requirement that a hospital provide a medical screening examination and necessary stabilizing treatment to any patient who arrives seeking care. In the event the hospital lacks the capabilities to provide the care required by the patient, it may arrange for an appropriate transport to another facility that has such capabilities.
A lesser-known provision of EMTALA addresses the responsibilities of receiving hospitals. Specifically, EMTALA regulations state, A participating hospital that has specialized capabilities may not refuse to accept from a referring hospital an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capability to treat the patient.
In the memo, CMS states that any receiving hospital that has the capabilities to treat a patient for whom a transport is requested should be cited for an EMTALA violation if it conditioned, or attempted to condition, its acceptance of [the transfer] on the use by the sending hospital of a particular transport service instead of the transport arrangements made by the attending physician at the sending hospital . This guidance recognizes that the sending physician is responsible for determining the appropriate mode of transfer.
Clarification on Patient Parking
The second issue addressed in the April 27 memo is the practice in which a hospital refuses to accept responsibility for extended periods of time for patients brought in by ambulance crews and requires the crew to keep the patient on the ambulance gurney. In a prior memorandum issued July 13, 2006, CMS stated, This practice may result in a violation of EMTALA as well as a violation of a Medicare CoP governing hospital emergency services.
In the new memorandum, CMS responded to reports from hospital representatives that some EMS organizations have cited [the prior] memorandum as requiring hospitals to take instant custody of all individuals presenting via EMS transport at the hospital s delegated emergency department. CMS clarifies that the 2006 memo was intended to reinforce that a hospital s EMTALA responsibility begins when an individual arrives on hospital property and not when the hospital accepts the individual from the gurney. On the other hand, CMS states, this does not mean that a hospital will necessarily have violated EMTALA if it does not, in every instance, immediately assume from the EMS provider all responsibility for the individual, regardless of any other circumstances in the ED.
CMS recognizes that there may be times when a hospital does not have the capacity to provide an immediate medical screening examination and, if needed, stabilizing treatment. For example, CMS states that if ED staff is occupied dealing with multiple serious trauma cases, it could, under those circumstances, be reasonable for the hospital to ask the EMS provider to stay with the individual until such time as there were ED staff available to provide care to that individual.
However, CMS stresses that even if a hospital cannot immediately provide a medical screening examination, it must still triage the individual immediately on ED arrival to ensure that immediate intervention isn t required and that EMS staff can appropriately monitor the patient s condition.
Finally, the memo stipulates that cases of this kind will be reviewed on a case-by-case basis to determine whether a hospital has violated EMTALA by failing to act reasonably in accepting 9-1-1 patients. This suggests that CMS will not view all patient parking cases as black and white, but will instead look at the facts and circumstances to determine whether there was a reasonable basis for the hospital to delay acceptance of an ambulance patient from the EMS crew. Thus, it s wise for ambulance services to document the circumstances surrounding a hospital s unreasonable refusal to accept their patients.
Take-home Messages
These memoranda deal with several complex issues. In summary, CMS said hospitals:
may not shirk their responsibility to provide initial assessment and treatment for patients by
handing that responsibility off to EMS;
cannot condition acceptance of a transfer patient on use of a specific transport provider;
may not routinely delay accepting patients from EMS crews, although they may do so when
necessary due to unusual circumstances; and
must, in cases when EMS personnel are asked to stay with the patient, immediately assess each
incoming patient to ensure that EMTs or paramedics may appropriately monitor that patient until
ED staff can take over.
For copies of these memoranda, e-mail Scarano at mscarano@foley.com.
