Discharge Planning Advisor

Specialty hospitals not exempt from transfer rules

Provision clarified in new regulations

Specialty hospitals that do not have emergency departments (EDs) are still subject to the Emergency Medical Treatment and Labor Act (EMTALA) rules on acceptance of patients for transfer, cautions Stephen A. Frew, JD, a risk management specialist and web site publisher (www.medlaw.com).

That provision is not a recent change in policy, but is made "absolutely clear" in proposed new regulations from the Centers for Medicare & Medicaid Services (CMS), Frew recently noted.

"CMS has always taken this position, and has cited specialty hospitals for failure to take transfers," he says. The new regulations follow a recommendation based on reports that specialty hospitals have turned down patients on the theory that because they do not have an ED, they are exempt from EMTALA.

The new language in 42 CFR 489.24(f) will be: "Any participating hospital with specialized capabilities or facilities, even if it does not have a dedicated emergency department, may not refuse to accept an appropriate transfer if it has the capacity to treat the individual."

The language does not mandate that specialty hospitals add an ED, Frew says, but emphasizes that private specialty hospitals of any type may not evade the obligation to accept transfers required by EMTALA.

He predicts that more psychiatric, obstetrics, orthopedic and cardiac hospitals will be cited by CMS as frustrated general hospitals begin reporting turn-downs of ED and inpatient transfers of unstable patients in need of a higher level of care.

"I am aware of many locations where this battle has been building toward explosion, and 'fair notice' has now been given," Frew adds. "Transfer requests and reports of denials are going to push this issue into open warfare if specialty hospitals don't heed the warning."

One concern likely will be that specialty hospitals will have to have some mechanism for achieving coverage for these transfer patients, he suggests.

"If [specialty hospitals] don't have an ED, they often don't have an on-call system," Frew notes, "but as a practical matter, they may have to put physicians on-call or have hospitalists to address this acceptance obligation."

Otherwise, he says, such hospitals could face charges of inadequate care.