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On April 26, 2007, the Centers for Medicare & Medicaid Services ("CMS") issued guidance to state survey agency directors clarifying the regulatory requirements for hospital's emergency capabilities. The guidance requires nearly all hospitals (with the exception of critical access hospitals) &ndash including specialty hospitals and those without emergency departments &ndash to appraise medical emergencies and provide initial treatment and referral when appropriate.

CMS sets forth three key requirements that must be met by hospitals regarding the provision of emergency services: Hospitals must: (1) have the capability to appraise the emergency situation; (2) provide initial treatment; and (3) refer to another provider if appropriate. Importantly, CMS stated that calling 911 is not a substitute for the hospital's ability to meet the three key requirements. This means, for example, that although a hospital may use 911 services to provide emergency transportation, it may not rely on 911 services to provide appraisal or initial treatment of medical emergencies.

Requirements Applicable to All Hospitals

The guidance identified nine emergency services that now apply to every Medicare participating hospital (except critical access hospitals), whether or not a hospital has an emergency department.

• Physician On Duty or On Call. Hospitals must have a physician either on duty (onsite) or on call at all times
• A Responsible Physician for Each Patient. A M.D. or D.O. is responsible for the care of each Medicare patient with respect to any medical or psychiatric problem that is present on admission or that develops during the hospitalization
• Registered Nurse Supervision & Availability 24/7. Hospitals must provide 24-hour nursing services furnished by or supervised by an Registered Nurse, who must supervise and evaluate the care of each patient, and must be immediately available, when needed, to provide bedside care to any patient
• Right to Care in a Safe Setting. Patients in a hospital have the right to receive care in a safe setting
• Governing Body Ensures Accountability. Each hospital's governing body must ensure that its medical staff is accountable to the governing body for the quality of care provided to patients
• Medical Staff - Organized & Accountable. The hospital's medical staff must be well organized and accountable to the governing body for the quality of care provided to patients
• Quality Assessment and Performance Improvement. The hospital's governing body, medical staff, and administrative officials are responsible and accountable for ensuring that clear procedures for safety are established and that adequate resources are allocated for reducing risk to patients
• Appraisal, Initial Treatment, Referral. The hospital's governing body must assure that the medical staff has written policies and procedures for appraisal of emergencies, initial treatment, and referral when appropriate
• Off-Campus Locations. For each off-campus hospital location, the governing body must assure that the medical staff has written policies and procedures for the appraisal of emergencies and referral when appropriate

Requirements Applicable Only to Hospitals With Emergency Departments

Although hospitals are not required to have an emergency department, a hospital that has an emergency department must comply with additional measures, including the following:

• Meeting Emergency Needs of Patients. The hospital must meet the emergency needs of patients in accordance with acceptable standards of medical practice
• Direction by Qualified Medical Staff. The services must be organized under the direction of a qualified member of the medical staff
• Integration with Other Departments. The services must be integrated with other departments of the hospital
• Supervision. Emergency services must be supervised by a qualified member of the medical staff
• Adequate Personnel Qualified in Emergency Care. There must be adequate medical and nursing personnel qualified in emergency care to meet the written emergency procedures and needs anticipated by the facility

Requirements Applicable to Hospitals Without Emergency Departments

The guidance stressed that hospitals without emergency departments must nonetheless have appropriate policies and procedures in place to address individuals' emergency care needs at all times. These policies and procedures must address:

• Appraisal of Persons with Emergencies. A hospital must have medical staff policies and procedures for conducting appraisals of persons with emergencies, and ensure that a registered nurse is immediately available at all times and a physician is on-site or on-call
• Initial Treatment. A hospital must have medical staff policies and procedures for providing the initial treatment needed by persons with emergency conditions, including the presence of a registered nurse qualified to provide initial treatment to a person experiencing a medical emergency under the oversight and direction of the on-site or on-call physician
• Referral When Appropriate. A hospital must have medical staff policies and procedures to address situations in which a person's emergency needs may exceed the hospital's capabilities

Because the Conditions of Participation for hospitals do not define "medical emergency," CMS suggested that the definition found in the Emergency Medical Treatment and Labor Act ("EMTALA") statute and its regulations be utilized when considering a hospital's compliance with the requirements for emergency services.

Conclusion

Medicare surveyors have been instructed to consider this new guidance when determining hospital compliance. Hospitals that do not demonstrate full compliance risk being cited with deficiencies and adverse action, including termination of the hospital's Medicare provider agreement.

Hospitals should review their policies and procedures to be certain that they comply with CMS's interpretation of the applicable Conditions of Participation as reflected in the recent guidance. Hospitals without emergency rooms and others which have previously considered themselves outside EMTALA's reach will need to review their policies and procedures for responding to individuals presenting with possible emergency conditions. Whether or not policy revisions are necessary, hospital staff and physicians should be trained for compliance with this new guidance.

Our firm has assisted numerous hospitals and physicians with compliance with EMTALA and hospital emergency care requirements. We can assist you in developing policies and procedures or responding to enforcement actions related to the expanded CMS mandates for hospital emergency care. If you require our assistance or have any questions please contact Michael Dowell at mdowell@tocounsel.com or the lawyer in the firm who generally handles your health care law legal matters.