INTERPRETIVE GUIDELINES - RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITALS IN EMERGENCY CASES. Rev V-13

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1 A400 A Basic Sectin 1866 cmmitments relevant t Sectin 1867 respnsibilities. The prvider agrees-- (l) In the case f a hspital as defined in (b), t cmply with (m) In the case f a hspital as defined in (b), t reprt t HCFA r the State survey agency any time it has reasn t believe it may have received an individual wh has been transferred in an unstable emergency medical cnditin frm anther hspital in vilatin f the requirements f (d). INTERPRETIVE GUIDELINES: (l) (l) requires the prvider t cmply with Hwever 1866(a)(1)(I)(i) f the Act requires prviders t adpt and enfrce a plicy t ensure cmpliance with the requirements f 1867 ( ). Nn-cmpliance is a vilatin f the prvider's agreement with the Health Care Financing Administratin (HCFA). Therefre, if the prvider vilates , cite a crrespnding vilatin f (l); but if the prvider des nt adpt and enfrce prcedures and plicies t ensure cmpliance with , cite a vilatin f 1866(a)(1)(I)(i). Check the bylaws/rules and regulatins f the medical staff t determine if they reflect the requirements f and the related requirements at Review the emergency department plicies and prcedure manuals fr prcedures related t the requirements f and the related requirements at The term "hspital" is defined in (b) as including a rural primary care hspital as defined in 1861(mm)(1) f the Act. INTERPRETIVE GUIDELINES: (m) Lk fr evidence that the receiving (recipient) hspital knew r suspected the individual had been t a hspital prir t the receiving (recipient) hspital and had nt been transferred in accrdance with (d). (Evidence may be btained in the medical recrd r thrugh interviews with the patient, family members r staff.) Hwever, terminatin f the receiving (recipient) hspital shuld be suspended pending cnfirmatin f the suspected ffense. Review the emergency department lg and medical recrds f patients received as transfers. Lk fr evidence that: The hspital had agreed in advance t accept the transfers; The hspital had received apprpriate medical recrds; All transfers had been effected thrugh qualified persnnel, transprtatin equipment and medically apprpriate life supprt measures; and The hspital had available space and qualified persnnel t treat the patients. Rev V-13

2 A402 A403 (q) In the case f a hspital as defined in (b)-- (1) T pst cnspicuusly in any emergency department r in a place r places likely t be nticed by all individuals entering the emergency department, as well as thse individuals waiting fr examinatin and treatment in areas ther than traditinal emergency departments (that is, entrance, admitting area, waiting rm, treatment area) a sign (in a frm specified by the Secretary) specifying the rights f individuals under sectin 1867 f the Act with respect t examinatin and treatment fr emergency medical cnditins and wmen in labr; and (2) T pst cnspicuusly (in a frm specified by the Secretary) infrmatin indicating whether r nt the hspital r rural primary care hspital participates in the Medicaid prgram under a State plan apprved under Title XIX; (r) In the case f a hspital as defined in (b) (including bth the transferring and receiving hspitals), t maintain-- (1) Medical and ther recrds related t individuals transferred t r frm the hspital fr a perid f 5 years frm the date f the transfer; INTERPRETIVE GUIDELINES: (q) At a minimum: The sign(s) must specify the rights f individuals with emergency cnditins and wmen in labr wh cme t the emergency department fr health care services; It must indicate whether the facility participates in the Medicaid prgram; The wrding f the sign(s) must be clear and in simple terms and language that are understandable by the ppulatin served by the hspital; and The sign(s) must be psted in a place r places likely t be nticed by all individuals entering the emergency department, as well as thse individuals waiting fr examinatin and treatment (e.g., entrance, admitting area, waiting rm, treatment area). INTERPRETIVE GUIDELINES: (r)(1) The medical recrds f individuals transferred t r frm the hspital must be retained in their riginal r legally-reprduced frm in hard cpy, micrfilm, micrfiche, ptical disks, cmputer disks, r cmputer memry. Rev V-14

3 A404 (2) A list f physicians wh are n call fr duty after the initial examinatin t prvide further evaluatin and/r treatment necessary t stabilize an individual with an emergency medical cnditin; and INTERPRETIVE GUIDELINES: (r)(2) The purpse f the n-call list is t ensure that the emergency department is prspectively aware f which physicians, including specialists and subspecialists, are available t prvide treatment necessary t stabilize individuals with emergency medical cnditins. If a hspital ffers a service t the public, the service shuld be available thrugh n-call cverage f the emergency department. The medical staff by-laws r plicies and prcedures must define the respnsibility f n-call physicians t respnd, examine and treat patients with emergency medical cnditins. Physicians, including specialists and subspecialists (e.g., neurlgists) are nt required t be n call at all times. The hspital must have plicies and prcedures t be fllwed when a particular specialty is nt available r the n-call physician cannt respnd because f situatins beynd his r her cntrl. Each hspital has the discretin t maintain the n-call list in a manner t best meet the needs f its patients. Physicians are nt required t be n call in their specialty r subspecialty fr emergencies whenever they are visiting their wn patients in a hspital. Review the hspital's plicy with respect t respnse time f the n-call physician. Hspitals are respnsible fr ensuring that n-call physicians respnd within a reasnable perid f time. Nte the time f ntificatin and the respnse (r transfer) time. If a staff physician is n-call t prvide emergency services r t cnsult with an emergency rm physician is in the area f his r her expertise, that physician wuld be cnsidered t be available at the hspital. Where a physician is n-call in an ffice it is nt acceptable t refer emergency cases t their ffices fr examinatin and treatment. The physician must cme t the hspital t examine the patient unless the physician is a hspital-wned facility n cntiguus land r n the hspital campus.. If a physician demnstrates a pattern f nt arriving at the hspital while n-call, but directs the patient t be transferred t anther hspital where that physician can treat the patient, this may be a vilatin.

4 A405 (3) A central lg n each individual wh cmes t the emergency department, as defined in (b), seeking assistance and whether he r she refused treatment, was refused treatment, r whether he r she was transferred, admitted and treated, stabilized and transferred, r discharged. INTERPRETIVE GUIDELINES: (r)(3) The purpse f the central lg is t track the care prvided t each individual wh cmes t the hspital seeking care fr an emergency medical cnditin. Each hspital has the discretin t maintain the central lg in a frm that best meets the needs f its patients. The central lg includes, directly r by reference, patient lgs frm ther areas f the hspital, such as pediatrics and labr and delivery where a patient might present fr emergency services r receive a medical screening examinatin instead f in the emergency department. These additinal lgs must be available in a timely manner fr surveyr review. Review the emergency department lg cvering at least a six mnth perid that cntains infrmatin n all patients cming t the emergency department and check fr cmpleteness, gaps in entries r missing infrmatin. Rev V-15

5 A405 A Special respnsibilities f Medicare hspitals in emergency cases. (a) General. In the case f a hspital that has an emergency department, Select a sample f recrds frm the past six mnths frm the lg fr review t determine cmpliance with the requirements, accrding t the sample size methdlgy in Task 2. Select an lder sample if the case t be investigated ccurred lnger than six mnths ag, r if yu are cncerned abut a pssible lng-term pattern f dumping. THE PROVISIONS OF THIS REGULATION APPLY TO ALL HOSPITALS THAT PARTICIPATE IN MEDICARE AND PROVIDE EMERGENCY SERVICES Hspitals prviding emergency services are required t prvide fr an apprpriate medical screening examinatin; prvide necessary stabilizing treatment fr emergency medical cnditins and labr; prvide fr an apprpriate transfer f the patient if the hspital des nt have the capability r capacity t prvide the treatment necessary t stabilize the emergency medical cnditin;, nt delay examinatin and/r treatment in rder t inquire abut the patient s insurance r payment status; accept apprpriate transfers f patients with emergency medical cnditins if the hspital has the specialized capabilities nt available at the transferring hspital and has the capacity t treat thse individuals; if the patient refuses examinatin, treatment, r transfer t btain r attempt t btain written and infrmed refusal f examinatin, treatment r apprpriate transfer; and nt take adverse actin against a physician r qualified medical persnnel wh refuses t transfer a patient with an emergency medical cnditin, r against an emplyee wh reprts a vilatin f these requirements. INTERPRETIVE GUIDELINES: (a) A "hspital with an emergency department" is defined in paragraph (b) f this sectin as ne which ffers services fr emergency medical cnditins within its capability t d s. Lack f an established emergency department is nt an indicatin that emergency services are nt prvided. If a hspital ffers emergency services fr medical, psychiatric r substance abuse emergency cnditins, it is required, within its capability and capacity, t cmply with all the anti-dumping statutry requirements. If a psychiatric hspital ffers services fr medical, psychiatric, r substance abuse emergency cnditins, it is bligated t cmply with all f the anti-dumping requirements f and Mst psychiatric hspitals are accredited by the Jint Cmmissin and have an emergency department which prvides reasnable care in determining whether an emergency exists, renders life saving first aid, and makes apprpriate referrals t the nearest rganizatins that are capable f prviding needed services. The emergency department must have a mechanism fr prviding physician cverage at all times. Rev V-16

6 A406 If any individual (whether r nt eligible fr Medicare benefits and regardless f ability t pay) cmes by him r herself r with anther persn t the emergency department and a request is made n the individual s behalf fr examinatin r treatment f a medical cnditin by qualified medical persnnel (as determined by the hspital in its rules and regulatins), the hspital must prvide fr an apprpriate MEDICAL SCREENING EXAMINATION within the capability f the hspital s emergency department, including ancillary services rutinely available t the emergency department Emergency services need nt be prvided in a lcatin specifically identified as an emergency rm r an emergency department. If an individual arrives at a hspital and is nt technically in the emergency department, but is n the premises (including the parking lt, sidewalk and driveway) f the hspital and requests emergency care, he r she is entitled t a medical screening examinatin. Fr example, it may be the hspital s plicy t direct all pregnant wmen t the labr and delivery area f the hspital. Hspitals may use areas t deliver emergency services which are als used fr ther inpatient r utpatient services. Medical screening examinatins r stabilizatin may require ancillary services available nly in areas r facilities f the hspital utside f the emergency department. As lng as the patient is directed t a hspital-wned facility which is cntiguus (i.e., any area within the hspital r a hspital-wned facility n land that tuches land where a hspital s emergency department sits) r is part f the hspital campus and is wned by the hspital, and is perating under the hspital's prvider number, the hspital is cmplying with Physicians ffices may be defined as such a facility, prvided they are lcated in a hspitalwned building which is cntiguus r lcated in a hspital-wned building which is n campus. Fr example, a patient wh presents t the emergency department culd be sent t whatever hspital-wned cntiguus r n-campus facility that the hspital deemed apprpriate t cnduct r cmplete the medical screening examinatin as lng as (1)all persns with the same medical cnditin are mved t this lcatin, regardless f their ability t pay fr the treatment; (2)there is a bna fide medical reasn t mve the patient; and (3) qualified medical persnnel accmpany the patient. If the patient was initially screened in a facility utside f the emergency department, the patient culd be mved t anther hspital-wned cntiguus r hspital-wned n-campus facility t receive additinal screening r fr stabilizatin withut such mvement being regarded as a transfer, as lng as (1) all persns with the same medical cnditin are mved in such circumstances, regardless f their ability t pay fr treatment; (2) there is a bna fide medical reasn t mve the patient; and (3) qualified medical persnnel accmpany the patient. If a patient cmes t any cntiguus r n-campus facility f a hspital that has ne r mre hspital-wned nn-cntiguus r ff-campus facilities (such as an urgent care center r satellite clinic), the medical screening examinatin must be perfrmed within the cntiguus r n-campus facilities f the hspital. The hspital shuld nt mve the patient t a nncntiguus r ff-campus facility fr the medical screening examinatin. Rev V-17

7 A406 ( Cnt.) If a patient cmes t a hspital-wned facility which is nn-cntiguus r ff-campus and perates under the hspital s Medicare prvider number, 1867 applies t that facility. The facility must therefre screen and stabilize the patient t the best f its ability r execute an apprpriate transfer accrding t 1867 guidelines if necessary. If an individual is nt n hspital prperty, this regulatin is nt applicable. Hspital prperty includes ambulances wned and perated by the hspital, even if the ambulance is nt n hspital grunds. An individual in a nnhspital-wned ambulance which is n hspital prperty is cnsidered t have cme t the hspital's emergency department. An individual in a nnhspital-wned ambulance nt n "Hspital A's" prperty is nt cnsidered t have cme t "Hspital A's" emergency department when the ambulance persnnel cntact "Hspital A" by telephne r telemetry cmmunicatins. A hspital may deny access t patients when it is in "diversinary" status because it des nt have the staff r facilities t accept any additinal emergency patients at that time. Hwever, if the ambulance disregards the hspital's instructins and brings the individual n t hspital grunds, the individual has cme t the hspital and the hspital cannt deny the individual access t hspital services. Shuld a hspital which is nt in diversinary status fail t accept a telephne r radi request fr transfer r admissin, the refusal culd represent a vilatin f ther Federal r State requirements (e.g., Hill-Burtn). If yu suspect a vilatin f related laws, refer the case t the respnsible agency fr investigatin. Rev V-18

8 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITAL IN EMERGENCY CASES A406 (Cnt) Hspitals are bligated t screen patients t determine if an emergency medical cnditin exists. It is nt apprpriate t merely lg in a patient and nt prvide a medical screening examinatin. Medicare participating hspitals that prvide emergency services must prvide a medical screening examinatin t any individual regardless f diagnsis (e.g., labr, AIDS), financial status (e.g., uninsured Medicaid), race, clr, natinal rigin (e.g., Hispanic r Native American surnames), handicap, etc. Individuals cming t the emergency department must be prvided a medical screening examinatin beynd initial triaging. Triage is nt equivalent t a medical screening examinatin. Triage merely determines the rder in which patients will be seen, nt the presence r absence f an emergency medical cnditin. A hspital, regardless f size r patient mix, must prvide screening and stabilizing treatment within the scpe f its abilities, as needed, t the individuals with emergency medical cnditins wh cme t the hspital fr examinatin and treatment. The medical screening examinatin must be the same medical screening examinatin that the hspital wuld perfrm n any individual cming t the hspital s emergency department with thse signs and symptms, regardless f the individual s ability t pay fr medical care. If the medical screening examinatin is apprpriate and des nt reveal an emergency medical cnditin, the hspital has n further bligatins under 42 CFR Regardless f a psitive r negative patient utcme, a hspital wuld be in vilatin f the antidumping statute if it fails t meet any f the medical screening requirements under 42 CFR A medical screening examinatin is the prcess required t reach with reasnable clinical cnfidence, the pint at which it can be determined whether a medical emergency des r des nt exist. If a hspital applies in a nndiscriminatry manner (i.e., a different level f care must nt exist based n payment status, race, natinal rigin) a screening prcess that is reasnably calculated t determine whether an emergency medical cnditin exists, it has met its bligatins under the Emergency Medical Treatment and Labr Act (EMTALA). Depending n the patient s presenting symptms, the medical screening examinatin represents a spectrum ranging frm a simple prcess invlving nly a brief histry and physical examinatin t a cmplex prcess that als invlves perfrming ancillary studies and prcedures such as (but nt limited t) lumbar punctures, clinical labratry tests, CT scans, and/r diagnstic tests and prcedures. A medical screening examinatin is nt an islated event. It is an nging prcess. The recrd must reflect cntinued mnitring accrding t the patient s needs and must cntinue until he/she is stabilized r apprpriately transferred. There shuld be evidence f this evaluatin prir t discharge r transfer. Rev V-19

9 NUMBER A406 REGULATION GUIDANCE TO SURVEYORS The clinical utcme f an individual s cnditin is nt a prper basis fr determing whether an apprpriate screening was prvided r whether a persn transferred was stabilized. Hwever, it may be a "red flag" indicating a mre thrugh investigatin is needed. D nt make decisins base n clinical infrmatin that was nt available at the time f stabilizatin r transfer. If a misdiagnsis ccurred, but the hspital utilized all f its resurces, a vilatin f the screening requirement did nt ccur. A hspital may nt refuse t screen an enrllee f a managed care plan because the plan refuses t authrize treatment r t pay fr such screening and treatment. Likewise, the managed care plan cannt refuse t screen and treat r apprpriately transfer individuals nt enrlled in the plan wh cme t a plan hspital that participates in the Medicare prgram. It is nt apprpriate fr a hspital t request r a health plan t require prir authrizatin befre the patient has received a medical screening exam t determine the presence r absence f an emergency medical cnditin r until an existing emergency medical cnditin has been stabilized. Once an emergency medical cnditin has been determined nt t exist r the emergency medical cnditin has been stabilized, 1867 f the Act n lnger applies and prir authrizatin fr further services can be sught. (NOTE: Backgrund issue n Payment: Once a patient has presented t the hspital seeking emergency care, the determinatin f whether an emergency medical cnditin exists is made by the examining physician(s) r ther qualified medical persn actually caring fr the patient at the treating facility, nt the managed care plan. Beneficiaries have a right t emergency services if they have symptms f sufficient severity (which may include severe pain) and sudden nset, and they are acting reasnably, given their knwledge, experiences, and state f mind.) Rev V-20

10 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITALS IN EMERGENCY CASES A406 Prearranged cmmunity r State plans which identify certain hspitals that will care fr selected individuals (e.g., Medicaid patients, psychiatric patients, pregnant wmen; (see tag A407)) d nt relieve ther hspitals f the bligatin t cmply with the screening and treatment requirements f befre apprpriately transferring the individual. If a screening examinatin reveals an emergency medical cnditin and the individual is tld t wait fr treatment, but the individual leaves the hspital, the hspital did nt dump the patient unless: The individual left the emergency department based n a suggestin by the hspital, and/r The individual s cnditin was emergent, but the hspital was perating beynd its capacity and did nt attempt t transfer the individual t anther facility. Hspital resurces and staff available t inpatients at the hspital fr emergency services must likewise be available t individuals cming t the hspital fr examinatin and treatment f emergency medical cnditins because these resurces are within the capability f the hspital. Fr example, a wman in labr wh presents at a hspital prviding bstetrical services must be treated with the resurces available, whether r nt the hspital nrmally prvides unassigned emergency bstetrical services. If a hspital chses t meet its respnsibility t prvide adequate medical persnnel t meet its anticipated emergency needs by using n-call physicians either t staff r t augment its emergency department, then the capability f its emergency department includes the services f its n-call physicians. Rev V-21

11 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITALS IN EMERGENCY CASES A406 A406 t determine whether r nt an emergency medical cnditin exists. The examinatins must be cnducted by individuals determined qualified by hspital bylaws r rules and regulatins and wh meet the requirements f cncerning emergency services persnnel and directin. "Emergency medical cnditin" means a medical cnditin manifesting itself by acute symptms f sufficient severity (including severe pain, psychiatric disturbances, and/r symptms f substance abuse) such that the absence f immediate medical attentin culd reasnably be expected t result in: Placing the health f the individual (r, with respect t a pregnant wman, the health f a wman r her unbrn child) in serius jepardy; Serius impairment t any bdily functins; Serius dysfunctin f any bdily rgan r part; r With respect t a pregnant wman wh is having cntractins: -- That there is inadequate time t effect a safe transfer t anther hspital befre delivery, r -- That the transfer may pse a threat t the health r safety f the wman r the unbrn child. Psychiatric hspitals that prvide emergency services are bligated under these regulatins t respnd within the limits f their capabilities. Sme intxicated individuals may meet the definitin f "emergency medical cnditin" because the absence f medical treatment may place their health in serius jepardy, result in serius impairment f bdily functins, r serius dysfunctin f a bdily rgan. Further, it is nt unusual fr intxicated individuals t have unrecgnized trauma. Likewise, an individual expressing suicidal r hmicidal thughts r gestures, if determined dangerus t self r thers, wuld be cnsidered t have an emergency medical cnditin. This delegatin shuld be set frth in a dcument apprved by the gverning bdy f the hspital. If the rules and regulatins f the hspital are apprved by the bard f trustees r ther gverning bdy, thse persnnel qualified t perfrm these examinatins may be set frth in the rules and regulatins, instead f placing this infrmatin in the hspital by-laws. It is nt acceptable fr the hspital t allw infrmal persnnel appintments that culd frequently change. Rev V-22

12 A407 (c) Necessary stabilizing treatment fr emergency medical cnditins and labr - - (1) General. If any individual (whether r nt eligible fr Medicare benefits) cmes t a hspital and the hspital determines that the individual has an emergency medical cnditin, "Labr", as defined in paragraph (b) f this sectin, means the prcess f childbirth beginning with the latent r early phase f labr and cntinuing thrugh the delivery f the placenta. A wman is in true labr unless a physician r qualified individual certifies that, after a reasnable time f bservatin, the wman is in false labr. INTERPRETIVE GUIDELINES : (c)(I) A managed health care plan (e.g., HMO, PPO) cannt deny a hspital permissin t treat its enrllees. It may nly state what it will r will nt pay fr. Regardless f whether a hspital will be paid, it is bligated t prvide the services specified in the statute and this regulatin. the hspital must prvide either-- (I) Within the capabilities f the staff and facilities available at the hspital, Capabilities f a medical facility means that there is physical space, equipment, supplies, and services that the hspital prvides (e.g., surgery, psychiatry, bstetrics, intensive care, pediatrics, trauma care). Capabilities f the staff f a facility means the level f care that the persnnel f the hspital can prvide within the training and scpe f their prfessinal licenses. The capacity t render care is nt reflected simply by the number f persns ccupying a specialized unit, the number f staff n duty, r the amunt f equipment n the hspital's premises. Capacity includes whatever a hspital custmarily des t accmmdate patients in excess f its ccupancy limits (b). If a hspital has custmarily accmmdated patients in excess f its ccupancy limits by whatever means (e.g., mving patients t ther units, calling in additinal staff, brrwing equipment frm ther facilities) it has, in fact, demnstrated the ability t prvide services t patients in excess f its ccupancy limits. The by-laws, prtcls and medical staff appintments apprved by the gverning bdy shuld require that all individuals are screened and stabilized within the capability f the hspital and shuld specify which staff members (by psitin) are authrized t perfrm the treatment. A hspital may apprpriately transfer an individual befre the sending hspital has used and exhausted all f its resurces available if the individual requests the transfer t anther hspital fr his r her treatment, and refuses treatment at the sending hspital. (See Tag A409.) If a cmmunity-wide plan exists fr certain hspitals t treat certain emergency medical cnditins, then the individual shuld be screened, stabilized, r apprpriately transferred t the cmmunity-plan hspital. Rev V-23

13 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITALS IN EMERGENCY CASES A407 fr Further Medical Examinatin and Treatment as required t stabilize the medical cnditin; r Cmpliance with the medical screening examinatin and stabilizatin requirements under 1867 mandate that all patients with similar medical cnditins be treated cnsistently. In sme cases, lcal, State, r reginally-apprved emergency medical systems (EMS), pintf-entry, and/r system prtcls are in place. Cmpliance with EMS prtcls with respect t the transprt f emergent patients is usally deemed t indicate cmpliance with 1867; hwever a cpy f the prtcl shuld be btained and reviewed at the time f the survey. If a hspital cmplies with ther reginal authrity r State r lcally apprved pint-f-entry prtcls fr emergency care (e.g., fr psychiatric emergencies r physicial r sexual abuse) then the hspital is usually in cmpliance with 1867f the Act, as lng as the hspital ensures that the patient is stable fr transfer. If the individual seeking care is a member an HMO r CMP, the hspital s bligatin t cmply with the requirements f is nt affected. T stabilize, as defined in paragraph (b) f this sectin means, with respect t an emergency medical cnditin, t either prvide such medical treatment f the cnditin necessary t assure, within reasnable medical prbability, that n material deteriratin f the cnditin is likely t result frm, r ccur during, the transfer f the individual frm a facility, r that the wman has delivered the child and the placenta. A patient will be deemed stabilized if the treating physician attending t the patient in the emergency department/hspital has determined, within reasnable clinical cnfidence, that the emergency medical cnditin has been reslved. Fr patients whse emergency medical cnditin has nt been reslved, the determinatin f whether they are stable "medically" may ccur in ne f the fllwing tw circumstances: Fr purpses f transferring a patient frm ne facility t a secnd facility "stable fr transfer"; and Fr purpses f discharging a patient ther than fr the purpse f transfer frm ne facility t anther facility "stable fr discharge". Fr transfer between facilities: a patient is stable fr transfer if the patient is transferred frm ne facility t a secnd facility and the treating physician attending t the patient has determined, within reasnable clinical cnfidence, that the patient is expected t leave the hspital and be received at the secnd facility, with n material deteriratin in his/her medical cnditin; and the treating physician reasnably believes the receiving facility has the capability t manage the patient s medical cnditin and any reasnably freseeable cmplicatin f that cnditin. If there is a disagreement between the treating physician and an ff-site physician (e.g., a physician at the receiving facility r the patient s primary care physician if nt physically present at the first facility)abut whether a patient is stable fr transfer, the medical judgment f the treating physician usually takes precedence ver that f the ff-site physician. Rev V-24

14 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE HOSPITALS IN EMERGENCY CASES A407 fr FURTHER MEDICAL EXAMINATION AND TREATMENT as required t stabilize the medical cnditin; r (ii)fr transfer f the individual t anther medical facility in accrdance with paragraph (d) f this sectin. If a physician is nt physically present at the time f transfer, then qualified persnnel (as determined by hspital bylaws r ther bard-apprved dcuments) in cnsultatin with a physician can determine if a patient is stable fr transfer. The failure f a receiving facility t prvide the care it maintained it culd prvide t the patient when the transfer was arranged, shuld nt be cnstrued t mean the patient's cnditin wrsened as a result f the transfer. A patient is cnsidered stable fr discharge (vs. fr transfer frm ne facility t a secnd facility) when, within reasnable clinical cnfidence, it is determined that the patient has reached the pint where his/her cntinued care, including diagnstic wrk-up and/r treatment, culd be reasnable perfrmed as an utpatient r later as an inpatient, prvided the patient is given a plan fr apprpriate fllw-up care with the discharge instructins. Fr purpses f transferring a patient frm ne facility t a secnd facility, fr psychiatric cnditins, the patient is cnsidered t be stable when he/she is prtected and prevented frm injuring himself/herself r thers. Fr purpses f discharging a patient (ther than fr the purpse f transfer frm ne facility t a secnd facility), fr psychiatric cnditins, the patient is cnsidered t be stable when he/she is n lnger cnsidered t be a threat t him/herself r t thers. "Stable fr transfer" r "Stable fr discharge" des nt require the final reslutin f the emergency medical cnditin. Hspitals may nt circurnvent the requirements in by admitting individuals with emergency medical cnditins t ther departments f the hspital and then discharging them prir t stabilizatin. These requirements apply t all areas f the hspital. "Transfer" as defined in paragraph (b) f this sectin, means the mvement (including the discharge) f an individual utside a hspital's facilities at the directin f any persn emplyed by (r affiliated r assciated, directly r indirectly, with) the hspital, but des nt include such a mvement f an individual wh has been declared dead r leaves the facility withut the permissin f any such persn. If discharge wuld result in the reasnable medical prbability f material deteriratin f the patient, the emergency medical cnditin shuld nt be cnsidered t have been stabilized. When a hspital has exhausted all f its capabilities in attempting t remve the emergency medical cnditin, it must effect an apprpriate transfer f the individual. (See Tag A409) Rev V-25

15 INTERPRETIVE GUIDELINES-RESPONSIBILITIES OF MEDICARE PARTICIPATING HOSPITALS IN EMERGENCY CASES Emergency medical cnditins must be stabilized. If a wman is in labr, the hspital must deliver the baby r transfer apprpriately. She may nt be transferred unless she, r a legally respnsible persn acting n her behalf, requests a transfer r if a physician r ther qualified medical persnnel, in cnsultatin with a physician, certifies that the benefits t the cnditin f the wman and/r the unbrn child utweigh the risks assciated with the transfer. A407 (2) Refusal t cnsent t treatment. A hspital meets the requirements f paragraph (c)(1)(i) f this sectin with respect t an individual if the hspital ffers the individual the further medical examinatin and treatment described in that paragraph and infrms the individual (r a persn acting n the individual's behalf) f the risks and benefits t the individual f the examinatin and treatment, but the individual (r a persn acting n the individual's behalf) refuses t cnsent t the examinatin and treatment. The medical recrd must cntain a descriptin f the examinatin, treatment, r bth if applicable, that was refused by r n behalf f the individual. The hspital must take all reasnable steps t secure the individual's written infrmed refusal (r that f a persn acting in his r her behalf). The written dcument shuld indicate that the persn has been infrmed f the risks and benefits f the examinatin r treatment, r bth. If the individual's cnditin requires immediate medical stablizing treatment and the hspital is nt able t attend t that individual because the emergency department is perating beynd its capacity, then the hspital shuld transfer the individual t a facility that has the capability and capacity t treat the individual's emergency medical cnditin, it pssible. INTERPRETIVE GUIDELINES: (c)(2) The medical recrd shuld reflect that screening, further examinatin, and/r treatment was ffered by the hspital prir t the individual's refusal. In the event an individual refuses t cnsent t further examinatin r treatment, the hspital must indicate in writing the risks/benefits f the examinatin and/r treatment; the reasns fr refusal; a descriptin f the examinatin r treatment that was refused; and the steps taken t try t secure the written, infrmed refusal if it was nt secured. Hspitals may nt attempt t cerce individuals int making judgments against their best interest by infrming them that they will have t pay fr their care if they remain, but that their care will be free r at lw cst if they transfer t anther hspital. A hspital cannt be left withut recurse if an individual refuses treatment, refuses t sign a statement t that effect, and leaves against medical advice. Hspitals may dcument such refusals as they see fit. An individual may nly refuse examinatin, treatment, r transfer n behalf f the patient if the patient is incapable f making an infrmed chice fr him/herself. Rev V-26

16 A408 (3) Delay in examinatin r treatment. A participating hspital may nt delay prviding an apprpriate medical screening examinatin required under paragraph (a) f this sectin r further medical examinatin and treatment required under paragraph (c) in rder t inquire abut the individual's methd f payment r insurance status. INTERPRETIVE GUIDELINES: (c)(3) Hspitals shuld nt delay in prviding a medical screening examinatin r necessary stabilizing treatment by inquiring abut an individual's ability t pay fr care. All individuals wh have an emergency medical cnditin must be served, regardless f the answers the individual may give t the insurance questins asked during the registratin prcess. In additin, a hspital may nt delay screening r treatment t any individual while it verifies the infrmatin prvided. Hwever, hspitals may cntinue t fllw reasnable registratin prcesses fr individuals presenting with an emergency medical cnditin. Reasnable registratin prcesses may include requesting infrmatin abut insurance as lng as these prcedures d nt delay screening r treatment. If a delay in screening was due t an unusual internal crisis whereby it was simply nt within the capability f the hspital t prvide an apprpriate screening examinatin at the time the individual came t the hspital (e.g., mass casualty ccupying all the hspital's resurces fr a time perid), interviews with staff members shuld elicit this infrmatin. This requirement applies equally t bth the referring and the receiving (recipient) hspital. A409 (d) Restricting transfer until the individual is stabilized.-- (1) General. If an individual at a hspital has an emergency medical cnditin that has nt been stabilized (as defined in paragraph (b) f this sectin), the hspital may nt transfer the individual unless-- (i) The transfer is an apprpriate transfer (within the meaning f paragraph (d)(2) f this sectin); and INTERPRETIVE GUIDELINES: (d)(1) (See the definitin f Stable fr transfer at Tag A407) INTERPRETIVE GUIDELINES: (d)(1)(i) There are 4 requirements f an "apprpriate" transfer. These requirements are fund in (d)(2)(i), (d)(2)(ii), (d)(2)(iii), and (d)(2)(iv). Rev V-27

17 A409 A409 (ii)(a) The individual (r a legally respnsible persn acting n the individual's behalf) requests the transfer after being infrmed f the hspital's bligatins under this sectin and f the risk f transfer. The request must be in writing and indicate the reasns fr the request as well as indicate that he r she is aware f the risks and benefits f the transfer; (ii)(b) A physician (within the meaning f 1861(r)(1) f the Act) has signed a certificatin that, based upn the infrmatin available at the time f transfer, the medical benefits reasnably expected frm the prvisin f apprpriate medical treatment at anther medical facility utweigh the increased risks t the individual r, in the case f a wman in labr, t the unbrn child, frm being transferred. The certificatin must cntain a summary f the risks and benefits upn which it is based; r INTERPRETIVE GUIDELINES: (d)(1)(ii)(A) The request must cntain a brief statement f the hspital's bligatins under the statute and the benefits and risks that were utlined t the persn signing the request. Any transfer f an individual with an emergency medical cnditin must be initiated by either a written request fr transfer r a physician's certificatin. If bth are prvided (as is ften the case), the individual must still be infrmed f the risks vs. benefits f the transfer. The request must be made a part f the individual's medical recrd, and a cpy f the request shuld be sent t the receiving (recipient) facility alng with the individual transferred. If an individual's request fr transfer is btained by cercin r by misrepresenting the hspital's bligatins t prvide a medical screening examinatin and treatment fr an emergency medical cnditin r labr, the request des nt meet the hspital's bligatins under these regulatins. INTERPRETIVE GUIDELINES: (d)(1)(ii)(B) Sectin 1861(r) f the Act defines physicians as: (i) A dctr f medicine r stepathy. (This prvisin is nt t be cnstrued t limit the authrity f a dctr f medicine r stepathy t delegate tasks t ther qualified health care persnnel t the extent recgnized under State law r a State's regulatry mechanism); (ii) A dctr f dental surgery r dental medicine wh is legally authrized t practice dentistry by the State and wh is acting within the scpe f his r her license; (iii) A dctr f pdiatric medicine, but nly with respect t functins which he r she is legally authrized by the State t perfrm; (iv) A dctr f ptmetry wh is legally authrized t practice ptmetry by the State, but nly with respect t services related t the cnditin f aphakia; r (v) A chirpractr wh is licensed by the State r legally authrized t perfrm the services f a chirpractr, but nly with respect t treatment by means f manual manipulatin f the spine t crrect a subluxatin demnstrated by X-ray t exist. Rev V-28

18 A409 The regulatin requires an express written certificatin. Physician certificatin cannt simply be implied frm the findings in the medical recrd and the fact that the patient was transferred. The certificatin must state the reasn(s) fr transfer. The narrative ratinale need nt be a lengthy discussin f the individual's medical cnditin reiterating facts already cntained in the medical recrd, but it shuld give a cmplete picture f the benefits t be expected frm apprpriate care at the receiving (recipient) facility and the risks assciated with the transfer, including the time away frm an acute care setting necessary t effect the transfer. This ratinale may be n the certificatin frm r in the medical recrd. In cases where the individual's medical recrd des nt include a certificatin, give the hspital the pprtunity t retrieve the certificatin. Certificatins may nt be backdated. Dcument the hspital's respnse. Regardless f practices within a State, a wman in labr may be transferred nly if she r her representative requests the transfer r if a physician r ther qualified medical persnnel signs a certificatin that the benefits utweigh the risks. If the hspital des nt prvide bstetrical services, the benefits f a transfer may utweigh the risks. A hspital cannt cite State law r practice as the basis fr the transfer. Hspitals that are nt capable f handling high-risk deliveries r high-risk infants ften have written transfer agreements with facilities capable f handling high-risk cases. The hspital must still meet the screening, treatment, and transfer requirements. The certificatin that the benefits reasnably expected frm the prvisin f apprpriate medical treatment at anther medical facility utweigh the risk f the transfer is nt required fr transfers f individuals wh n lnger have an emergency medical cnditin. The date and time f the physician certificatin shuld clsely match the date and time f the transfer. Rev V-29

19 A409 (c) If a physician is nt physically present in the emergency department at the time an individual is transferred, a qualified medical persn (as determined by the hspital in its by-laws r rules and regulatins) has signed a certificatin described in paragraph (d)(1)(ii)(b) f this sectin after a physician (as defined in sectin 1861(r)(1) f the Act), in cnsultatin with the qualified medical persn, agrees with the certificatin and subsequently cuntersigns the certificatin. The certificatin must cntain a summary f the risks and benefits upn which it is based. INTERPRETIVE GUIDELINES: (d)(1)(C) Individuals ther than physicians may sign the certificatin f benefits versus risks f a transfer. These individuals must be identified in hspital bylaws, rules and regulatins, r anther bard-apprved dcument. If a certificatin f benefits versus risks was signed by a qualified medical persn, a physician's cuntersignature must be present. Hspital by-laws r plicies and prcedures will describe the maximum amunt f time allwed t btain physician cuntersignatures n hspital dcuments. (d)(2) A TRANSFER t anther medical facility will be APPROPRIATE nly in thse cases in which-- (i) The transferring hspital prvides medical treatment within its capacity that minimizes the risks t the individual's health and, in the case f a wman in labr, the health f the unbrn child; INTERPRETIVE GUIDELINES: (d)(2)(i) This is the first requirement f an apprpriate transfer. The prvisin f treatment t minimize the risks f transfer is merely ne f the 4 requirements f an apprpriate transfer. If the patient requires treatment, it must be sufficient s that n material deteriratin is likely t ccur r result frm the transfer. NOTE: The 4 requirements f an "apprpriate" transfer are applied nly if the transfer is t anther medical facility. In ther wrds, the hspital has the alternative f either (1) prviding treatment t stabilize the emergency medical cnditin and subsequently discharging r transferring the individual, r (2) apprpriately transferring an unstabilized individual t anther medical facility if the emergency medical cnditin still exists. There is n "third" ptin f simply "referring" the individual away after perfrming step ne (treatment t minimize the risk f transfer) f the 4 transfer requirements f an apprpriate transfer. Rev V-30

20 A409 If a patient is mved t anther part f the hspital, the transfer requirements are nt applicable because technically the patient has nt been transferred. If an individual is mved t a diagnstic facility wned by anther hspital with the intentin f returning t the first hspital, an apprpriate transfer (within the meaning f paragraph (d)(2) f this subsectin) must still be effectuated. Fr example, when Hspital A shares a CT Scanner with Hspital B (Hspital B huses the CT Scanner), if Hspital A sends the individual t Hspital B fr a CT scan as part f the apprpriate medical screening examinatin t determine whether the individual has an emergency medical cnditin, the apprpriate transfer requirements must be met. After the investigatin f the transferring hspital, call r g t the receiving (recipient) facility and determine whether the receiving (recipient) facility verifies the transferring hspital's infrmatin. In cases f discrepancy, btain the medical recrd frm the transferring and receiving hspitals and the ambulance service fr review. Review each hspital's infrmatin. If yu determine that it is necessary t cnduct a cmplaint investigatin at the receiving (recipient) hspital, ntify the RO t request an extensin f the investigatin timeframe. Review the transfer lgs fr the entire hspital, nt merely the emergency department. Examine the fllwing fr apprpriate transfers: Transfers t ff-site testing facilities and return; Death r significant adverse utcmes; Refusals f examinatin, treatment, r transfer; Patients leaving against medical advise (AMA); Returns t the emergency department within 48 hurs; and Emergency department visits where the patient is lgged in fr an unreasnable amunt f time befre the time indicated fr cmmencement f the medical screening examinatin. Rev V-31

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