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MedLaw E-Bulletin May 4, 2007
Stephen A. Frew JD, Publisher
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1. CMS Guidance -- Hospitals without Emergency Departments
2. CMS Guidance -- Bans Requiring Specific Transport Service
3. CMS Guidance -- Clarifies "No Parking" Rule
4. San Diego Policies and Procedures Bootcamp Update

CMS Guidance -- Hospitals without Emergency Departments

Hospitals that don't have emergency departments must still nurses trained in emergency assessment and treatment, on-call or on-duty physicians capable of providing care or supervision in the case of an emergency presentation or accident on site, and may not rely on EMS to provide that function. These hospitals are also required to make proper EMTALA transfer of patients even if EMS is the transfer agency.

The guidance was issued April 26 as S&C-07-19 based upon EMTALA TAG recommendations.

Although it is not stated in the guidance, it appears likely that the majority of hospitals that may be the object of this memo are specialty hospitals that simply call 9-1-1 if an emergency patient presents or an emergency occurs on premises. The only other noteable group of hospitals without emergency departments are those states -- particularly CA -- that allow general hospitals to operate without emergency departments.

CMS Guidance -- Bans Requiring Specific Transport Service

Following TAG recommendations, CMS issued a guidance (S&C-07-20 which will be on the website following this weekend) that emphasizes that receiving hospitals that attempt to require use of a specific transport service as a condition of acceptance are in violation of EMTALA.

Coincidentally, we covered this same topic in the E-Bulletin recently.

CMS Guidance -- Clarifies "No Parking" Rule

Following a prior guidance from CMS banning the practice of ignoring ambulance patients and leaving EMS to care for them until the hospital "accepts" the patient, the EMTALA TAG requested CMS issue a further clarification.

S&C-07-20 which will be on the website following this weekend clarifies that when an extra-ordinary circumstance renders a hospital temporarily unable to promptly assume care, it is not an automatic violation of EMTALA to ask EMS to maintain the patient. The example cites a circumstance where an ED faced with a sudden influx of multiple trauma patients, the staff might ask for help in maintaining other patients from the EMS crews bringing them in.

The CMS memo indicates that the ED must still provide triage "immediately upon arrival" to determine the patient's condition and the reasonableness of asking EMS to monitor the patient's condition.

So who decides whether it is "parking" or reasonable care, and who decides whether the circumstances justify asking for EMS assistance?

As in all EMTALA cases, the CMS regional office will evaluate the incident on a case-by-case basis and decide whether to cite or not.

The clarification does make it pretty clear, however, that hospitals still are the ones at risk for tying up EMS units with monitoring patients -- and it seems that it is a flat out violation if the request or defacto demand (ignoring the patient and EMS crew) comes before a prompt triage.

Most complaints from EMS, however, are not extra-ordinary event cases -- they are systematic flow management by refusing to take new patients until the ED is "ready". These cases remain violations.

In true major event situations, EMS are the first to offer their help in managing the situation, but the issue with most parking cases is intentional failures of the hospital to staff for foreseeable load and to manage patient flow on the in-house side.

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San Diego Policies and Procedures Bootcamp Update

We are still in the process of finalizing the hotel and date for the San Diego Policies and Procedures Bootcamp in July. We will announce the details sometime next week.

I appologize for the delay, but I was out of the office for a week dealing with the death of my father.

Best Wishes,

Stephen A. Frew JD