On April 26, 2007, the Centers for Medicare and Medicaid Services (“CMS”) issued important guidance clarifying the responsibility of most Medicare participating hospitals, including hospitals that do not have an emergency department, to provide certain emergency services. The guidance, issued in a letter to State Survey Agency Directors, stresses that hospitals that participate in Medicare (other than Critical Access Hospitals) are subject to multiple Medicare Hospital Conditions of Certification (“CoPs”) designed to “provide a foundation for safe care for all persons, including those with emergency care needs.” Included among the CoPs referenced by CMS are requirements that: (1) a hospital have physicians either on duty or on call at all times [42 C.F.R. § 482.12(c)(3)]; (2) a hospital provide 24-hour nursing services furnished or supervised by an RN [42 C.F.R. § 482.23(b)]; and (3) a hospital that does not have an emergency department have in place “written policies and procedures for appraisal of emergencies, initial treatment, and referral when appropriate” [42 C.F.R. § 482.12(f)(2)].

Thus, CMS interprets the various CoPs to require that hospitals have in place medical staff policies and procedures for addressing individuals’ emergency care needs 24 hours per day and 7 days per week. Such policies and procedures must address (1) the appraisal of persons with emergency conditions, (2) initial treatment of persons with emergency conditions, and (3) referral of persons with emergency conditions where appropriate. With regard to the practice of hospitals calling emergency medical services in the case of an emergency, CMS specifically notes that: "A hospital policy or practice that relies on calling 9-1-1 in order for EMS to substitute its emergency response capabilities for those the hospital is required to maintain, as described above, is not consistent with the Medicare CoPs. For example, a hospital may not rely upon 9-1-1 to provide appraisal and initial treatment that occur at the hospital. Such policy or practice should be considered as condition-level non-compliance with the applicable CoP, 42 C.F.R. 482.55 [the Emergency Services CoP for hospitals with an emergency department] or 42 C.F.R. 482.12(f) [the Governing Body CoP].

All hospitals, particularly those that do not have an emergency department, should review their policies and procedures to ensure that they conform to the requirements set forth in this new guidance. The full text of the guidance may be viewed by going to the website at:

http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter07-19.pdf.