CMS Guidance Expands Emergency Services Requirements For Medicare Participating Hospitals

On April 26, 2007, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance clarifying the emergency services responsibilities for hospitals that participate in the Medicare program. The guidance, found in Survey and Certification letter No. 07-19, requires nearly all hospitals – including specialty hospitals and those without emergency departments – to appraise medical emergencies and provide initial treatment and referral when appropriate. CMS did not expand the requirement to critical access hospitals (“CAHs”) because those small, rural hospitals are subject to separate regulations. These responsibilities are effective immediately.

The guidance states that Medicare Conditions of Participation (“CoP”) do not permit a hospital to rely on 911 services as a substitute for the hospital’s own ability to provide these services. 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. CMS’ position is part of an overall strategy to ensure quality care by assuring a rapid response to emergencies, and reiterates the long-standing requirement that hospitals must have appropriate policies and procedures to address emergency services 24 hours per day, 7 days per week.

The guidance identified nine emergency services that now apply to every Medicare participating hospital (except CAHs), 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.
• RN Supervision & Availability 24/7: Hospitals must provide 24-hour nursing services furnished by or supervised by an RN, 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.

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.

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: (1) appraisal of persons with emergencies; (2) initial treatment; and (3) referral when appropriate. Because the CoP for hospitals does not define “medical emergency,” CMS suggested that the definition found in the Emergency Medical Treatment and Labor Act (“EMTALA”) statute and its regulations might be a helpful reference when considering a hospital’s compliance with the requirements for emergency services.

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 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.