[Code of Federal Regulations]
[Title 42, Volume 3]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR489.24]

[Page 930-936]
 
                         TITLE 42--PUBLIC HEALTH
 
  CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF 
                 HEALTH AND HUMAN SERVICES--(Continued)
 
PART 489--PROVIDER AGREEMENTS AND SUPPLIER APPROVAL--Table of Contents
 
              Subpart B--Essentials of Provider Agreements
 
Sec. 489.24  Special responsibilities of Medicare hospitals in emergency cases.

    (a) General. In the case of a hospital that has an emergency 
department, if any individual (whether or not eligible for Medicare 
benefits and regardless of ability to pay) comes by him or herself or 
with another person to the emergency department and a request is made on 
the individual's behalf for examination or treatment of a medical 
condition by qualified medical personnel (as determined by the hospital 
in its rules and regulations), the hospital must provide for an 
appropriate medical screening examination within the capability of the 
hospital's emergency department, including ancillary services routinely 
available to the emergency department, to determine whether or not an 
emergency medical condition exists. The examinations must be conducted 
by individuals determined qualified by hospital by-laws or rules and 
regulations and who meet the requirements of Sec. 482.55 concerning

[[Page 931]]

emergency services personnel and direction.
    (b) Definitions. As used in this subpart--
    Capacity means the ability of the hospital to accommodate the 
individual requesting examination or treatment of the transferred 
individual. Capacity encompasses such things as numbers and availability 
of qualified staff, beds and equipment and the hospital's past practices 
of accommodating additional patients in excess of its occupancy limits.
    Comes to the emergency department means, with respect to an 
individual requesting examination or treatment, that the individual is 
on the hospital property. For purposes of this section, ``property'' 
means the entire main hospital campus as defined in Sec. 413.65(b) of 
this chapter, including the parking lot, sidewalk, and driveway, as well 
as any facility or organization that is located off the main hospital 
campus but has been determined under Sec. 413.65 of this chapter to be a 
department of the hospital. The responsibilities of hospitals with 
respect to these off-campus facilities or organizations are described in 
paragraph (i) of this section. Property also includes ambulances owned 
and operated by the hospital even if the ambulance is not on hospital 
grounds. An individual in a nonhospital-owned ambulance on hospital 
property is considered to have come to the hospital's emergency 
department. An individual in a nonhospital-owned ambulance off hospital 
property is not considered to have come to the hospital's emergency 
department even if a member of the ambulance staff contacts the hospital 
by telephone or telemetry communications and informs the hospital that 
they want to transport the individual to the hospital for examination 
and treatment. In these situations, the hospital may deny access if it 
is in ``diversionary status,'' that is, it does not have the staff or 
facilities to accept any additional emergency patients. If, however, the 
ambulance staff disregards the hospital's instructions and transports 
the individual on to hospital property, the individual is considered to 
have come to the emergency department.
    Emergency medical condition means--
    (i) A medical condition manifesting itself by acute symptoms of 
sufficient severity (including severe pain, psychiatric disturbances 
and/or symptoms of substance abuse) such that the absence of immediate 
medical attention could reasonably be expected to result in--
    (A) Placing the health of the individual (or, with respect to a 
pregnant woman, the health of the woman or her unborn child) in serious 
jeopardy;
    (B) Serious impairment to bodily functions; or
    (C) Serious dysfunction of any bodily organ or part; or
    (ii) With respect to a pregnant woman who is having contractions--
    (A) That there is inadequate time to effect a safe transfer to 
another hospital before delivery; or
    (B) That transfer may pose a threat to the health or safety of the 
woman or the unborn child.
    Hospital includes a critical access hospital as defined in section 
1861(mm)(1) of the Act.
    Hospital with an emergency department means a hospital that offers 
services for emergency medical conditions (as defined in this paragraph) 
within its capability to do so.
    Labor means the process of childbirth beginning with the latent or 
early phase of labor and continuing through the delivery of the 
placenta. A woman experiencing contractions is in true labor unless a 
physician certifies that, after a reasonable time of observation, the 
woman is in false labor.
    Participating hospital means (i) a hospital or (ii) a critical 
access hospital as defined in section 1861(mm)(1) of the Act that has 
entered into a Medicare provider agreement under section 1866 of the 
Act.
    Stabilized means, with respect to an ``emergency medical condition'' 
as defined in this section under paragraph (i) of that definition, that 
no material deterioration of the condition is likely, within reasonable 
medical probability, to result from or occur during the transfer of the 
individual from a facility or, with respect to an ``emergency medical 
condition'' as defined in this section under paragraph (ii) of that 
definition, that the woman has delivered the child and the placenta.

[[Page 932]]

    To stabilize means, with respect to an ``emergency medical 
condition'' as defined in this section under paragraph (i) of that 
definition, to provide such medical treatment of the condition necessary 
to assure, within reasonable medical probability, that no material 
deterioration of the condition is likely to result from or occur during 
the transfer of the individual from a facility or that, with respect to 
an ``emergency medical condition'' as defined in this section under 
paragraph (ii) of that definition, the woman has delivered the child and 
the placenta.
    Transfer means the movement (including the discharge) of an 
individual outside a hospital's facilities at the direction of any 
person employed by (or affiliated or associated, directly or indirectly, 
with) the hospital, but does not include such a movement of an 
individual who (i) has been declared dead, or (ii) leaves the facility 
without the permission of any such person.
    (c) Necessary stabilizing treatment for emergency medical 
conditions--(1) General. If any individual (whether or not eligible for 
Medicare benefits) comes to a hospital and the hospital determines that 
the individual has an emergency medical condition, the hospital must 
provide either--
    (i) Within the capabilities of the staff and facilities available at 
the hospital, for further medical examination and treatment as required 
to stabilize the medical condition; or
    (ii) For transfer of the individual to another medical facility in 
accordance with paragraph (d) of this section.
    (2) Refusal to consent to treatment. A hospital meets the 
requirements of paragraph (c)(1)(i) of this section with respect to an 
individual if the hospital offers the individual the further medical 
examination and treatment described in that paragraph and informs the 
individual (or a person acting on the individual's behalf) of the risks 
and benefits to the individual of the examination and treatment, but the 
individual (or a person acting on the individual's behalf) refuses to 
consent to the examination and treatment. The medical record must 
contain a description of the examination, treatment, or both if 
applicable, that was refused by or on behalf of the individual. The 
hospital must take all reasonable steps to secure the individual's 
written informed refusal (or that of the person acting on his or her 
behalf). The written document should indicate that the person has been 
informed of the risks and benefits of the examination or treatment, or 
both.
    (3) Delay in examination or treatment. A participating hospital may 
not delay providing an appropriate medical screening examination 
required under paragraph (a) of this section or further medical 
examination and treatment required under paragraph (c) in order to 
inquire about the individual's method of payment or insurance status.
    (4) Refusal to consent to transfer. A hospital meets the 
requirements of paragraph (c)(1)(ii) of this section with respect to an 
individual if the hospital offers to transfer the individual to another 
medical facility in accordance with paragraph (d) of this section and 
informs the individual (or a person acting on his or her behalf) of the 
risks and benefits to the individual of the transfer, but the individual 
(or a person acting on the individual's behalf) refuses to consent to 
the transfer. The hospital must take all reasonable steps to secure the 
individual's written informed refusal (or that of a person acting on his 
or her behalf). The written document must indicate the person has been 
informed of the risks and benefits of the transfer and state the reasons 
for the individual's refusal. The medical record must contain a 
description of the proposed transfer that was refused by or on behalf of 
the individual.
    (d) Restricting transfer until the individual is stabilized--(1) 
General. If an individual at a hospital has an emergency medical 
condition that has not been stabilized (as defined in paragraph (b) of 
this section), the hospital may not transfer the individual unless--
    (i) The transfer is an appropriate transfer (within the meaning of 
paragraph (d)(2) of this section); and
    (ii)(A) The individual (or a legally responsible person acting on 
the individual's behalf) requests the transfer, after being informed of 
the hospital's obligations under this section and of the risk of 
transfer. The request must be in writing and indicate the reasons for 
the request as well as indicate that

[[Page 933]]

he or she is aware of the risks and benefits of the transfer;
    (B) A physician (within the meaning of section 1861(r)(1) of the 
Act) has signed a certification that, based upon the information 
available at the time of transfer, the medical benefits reasonably 
expected from the provision of appropriate medical treatment at another 
medical facility outweigh the increased risks to the individual or, in 
the case of a woman in labor, to the woman or the unborn child, from 
being transferred. The certification must contain a summary of the risks 
and benefits upon which it is based; or
    (C) If a physician is not physically present in the emergency 
department at the time an individual is transferred, a qualified medical 
person (as determined by the hospital in its by-laws or rules and 
regulations) has signed a certification described in paragraph 
(d)(1)(ii)(B) of this section after a physician (as defined in section 
1861(r)(1) of the Act) in consultation with the qualified medical 
person, agrees with the certification and subsequently countersigns the 
certification. The certification must contain a summary of the risks and 
benefits upon which it is based.
    (2) A transfer to another medical facility will be appropriate only 
in those cases in which--
    (i) The transferring hospital provides medical treatment within its 
capacity that minimizes the risks to the individual's health and, in the 
case of a woman in labor, the health of the unborn child;
    (ii) The receiving facility--
    (A) Has available space and qualified personnel for the treatment of 
the individual; and
    (B) Has agreed to accept transfer of the individual and to provide 
appropriate medical treatment;
    (iii) The transferring hospital sends to the receiving facility all 
medical records (or copies thereof) related to the emergency condition 
which the individual has presented that are available at the time of the 
transfer, including available history, records related to the 
individual's emergency medical condition, observations of signs or 
symptoms, preliminary diagnosis, results of diagnostic studies or 
telephone reports of the studies, treatment provided, results of any 
tests and the informed written consent or certification (or copy 
thereof) required under paragraph (d)(1)(ii) of this section, and the 
name and address of any on-call physician (described in paragraph (f) of 
this section) who has refused or failed to appear within a reasonable 
time to provide necessary stabilizing treatment. Other records (e.g., 
test results not yet available or historical records not readily 
available from the hospital's files) must be sent as soon as practicable 
after transfer; and
    (iv) The transfer is effected through qualified personnel and 
transportation equipment, as required, including the use of necessary 
and medically appropriate life support measures during the transfer.
    (3) A participating hospital may not penalize or take adverse action 
against a physician or a qualified medical person described in paragraph 
(d)(1)(ii)(C) of this section because the physician or qualified medical 
person refuses to authorize the transfer of an individual with an 
emergency medical condition that has not been stabilized, or against any 
hospital employee because the employee reports a violation of a 
requirement of this section.
    (e) Recipient hospital responsibilities. A participating hospital 
that has specialized capabilities or facilities (including, but not 
limited to, facilities such as burn units, shock-trauma units, neonatal 
intensive care units, or (with respect to rural areas) regional referral 
centers) may not refuse to accept from a referring hospital within the 
boundaries of the United States an appropriate transfer of an individual 
who requires such specialized capabilities or facilities if the 
receiving hospital has the capacity to treat the individual.
    (f) Termination of provider agreement. If a hospital fails to meet 
the requirements of paragraph (a) through (e) of this section, CMS may 
terminate the provider agreement in accordance with Sec. 489.53.
    (g) Consultation with Quality Improvement Organizations (QIOs)--(1) 
General. Except as provided in paragraph (g)(3) of this section, in 
cases where a medical opinion is necessary to determine a physician's or 
hospital's liability

[[Page 934]]

under section 1867(d)(1) of the Act, CMS requests the appropriate QIO 
(with a contract under Part B of title XI of the Act) to review the 
alleged section 1867(d) violation and provide a report on its findings 
in accordance with paragraph (g)(2)(iv) and (v) of this section. CMS 
provides to the QIO all information relevant to the case and within its 
possession or control. CMS, in consultation with the OIG, also provides 
to the QIO a list of relevant questions to which the QIO must respond in 
its report.
    (2) Notice of review and opportunity for discussion and additional 
information. The QIO shall provide the physician and hospital reasonable 
notice of its review, a reasonable opportunity for discussion, and an 
opportunity for the physician and hospital to submit additional 
information before issuing its report. When a QIO receives a request for 
consultation under paragraph (g)(1) of this section, the following 
provisions apply--
    (i) The QIO reviews the case before the 15th calendar day and makes 
its tentative findings.
    (ii) Within 15 calendar days of receiving the case, the QIO gives 
written notice, sent by certified mail, return receipt requested, to the 
physician or the hospital (or both if applicable).
    (iii)(A) The written notice must contain the following information:
    (1) The name of each individual who may have been the subject of the 
alleged violation.
    (2) The date on which each alleged violation occurred.
    (3) An invitation to meet, either by telephone or in person, to 
discuss the case with the QIO, and to submit additional information to 
the QIO within 30 calendar days of receipt of the notice, and a 
statement that these rights will be waived if the invitation is not 
accepted. The QIO must receive the information and hold the meeting 
within the 30-day period.
    (4) A copy of the regulations at 42 CFR 489.24.
    (B) For purposes of paragraph (g)(2)(iii)(A) of this section, the 
date of receipt is presumed to be 5 days after the certified mail date 
on the notice, unless there is a reasonable showing to the contrary.
    (iv) The physician or hospital (or both where applicable) may 
request a meeting with the QIO. This meeting is not designed to be a 
formal adversarial hearing or a mechanism for discovery by the physician 
or hospital. The meeting is intended to afford the physician and/or the 
hospital a full and fair opportunity to present the views of the 
physician and/or hospital regarding the case. The following provisions 
apply to that meeting:
    (A) The physician and/or hospital has the right to have legal 
counsel present during that meeting. However, the QIO may control the 
scope, extent, and manner of any questioning or any other presentation 
by the attorney. The QIO may also have legal counsel present.
    (B) The QIO makes arrangements so that, if requested by CMS or the 
OIG, a verbatim transcript of the meeting may be generated. If CMS or 
OIG requests a transcript, the affected physician and/or the affected 
hospital may request that CMS provide a copy of the transcript.
    (C) The QIO affords the physician and/or the hospital an opportunity 
to present, with the assistance of counsel, expert testimony in either 
oral or written form on the medical issues presented. However, the QIO 
may reasonably limit the number of witnesses and length of such 
testimony if such testimony is irrelevant or repetitive. The physician 
and/or hospital, directly or through counsel, may disclose patient 
records to potential expert witnesses without violating any non-
disclosure requirements set forth in part 476 of this chapter.
    (D) The QIO is not obligated to consider any additional information 
provided by the physician and/or the hospital after the meeting, unless, 
before the end of the meeting, the QIO requests that the physician and/
or hospital submit additional information to support the claims. The QIO 
then allows the physician and/or the hospital an additional period of 
time, not to exceed 5 calendar days from the meeting, to submit the 
relevant information to the QIO.
    (v) Within 60 calendar days of receiving the case, the QIO must 
submit to CMS a report on the QIO's findings.

[[Page 935]]

CMS provides copies to the OIG and to the affected physician and/or the 
affected hospital. The report must contain the name of the physician 
and/or the hospital, the name of the individual, and the dates and times 
the individual arrived at and was transferred (or discharged) from the 
hospital. The report provides expert medical opinion regarding whether 
the individual involved had an emergency medical condition, whether the 
individual's emergency medical condition was stabilized, whether the 
individual was transferred appropriately, and whether there were any 
medical utilization or quality of care issues involved in the case.
    (vi) The report required under paragraph (g)(2)(v) of this section 
should not state an opinion or conclusion as to whether section 1867 of 
the Act or Sec. 489.24 has been violated.
    (3) If a delay would jeopardize the health or safety of individuals 
or when there was no screening examination, the QIO review described in 
this section is not required before the OIG may impose civil monetary 
penalties or an exclusion in accordance with section 1867(d)(1) of the 
Act and 42 CFR part 1003 of this title.
    (4) If the QIO determines after a preliminary review that there was 
an appropriate medical screening examination and the individual did not 
have an emergency medical condition, as defined by paragraph (b) of this 
section, then the QIO may, at its discretion, return the case to CMS and 
not meet the requirements of paragraph (g) except for those in paragraph 
(g)(2)(v).
    (h) Release of QIO assessments. Upon request, CMS may release a QIO 
assessment to the physician and/or hospital, or the affected individual, 
or his or her representative. The QIO physician's identity is 
confidential unless he or she consents to its release. (See 
Secs. 476.132 and 476.133 of this chapter.)
    (i) Off-campus departments. If an individual comes to a facility or 
organization that is located off the main hospital campus but has been 
determined under Sec. 413.65 of this chapter to be a department of the 
hospital and a request is made on the individual's behalf for 
examination or treatment of a potential emergency medical condition as 
otherwise described in paragraph (a) of this section, the hospital is 
obligated in accordance with the rules in this paragraph to provide the 
individual with an appropriate medical screening examination and any 
necessary stabilizing treatment or an appropriate transfer.
    (1) Capability of the hospital. The capability of the hospital 
includes that of the hospital as a whole, not just the capability of the 
off-campus department. Except for cases described in paragraph 
(i)(3)(ii) of this section, the obligation of a hospital under this 
section must be discharged within the hospital as a whole. However, the 
hospital is not required to locate additional personnel or staff to off-
campus departments to be on standby for possible emergencies.
    (2) Protocols for off-campus departments. The hospital must 
establish protocols for the handling of individuals with potential 
emergency conditions at off-campus departments. These protocols must 
provide for direct contact between personnel at the off-campus 
department and emergency personnel at the main hospital campus and may 
provide for dispatch of practitioners, when appropriate, from the main 
hospital campus to the off-campus department to provide screening or 
stabilization services. Any contact with emergency personnel at the main 
hospital campus should either be made after or concurrently with the 
actions needed to arrange an appropriate transfer under paragraph 
(i)(3)(ii) of this section if contacting the main hospital campus prior 
to transfer would significantly jeopardize the life or health of the 
individual.
    (i) If the off-campus department is an urgent care center, primary 
care center, or other facility that is routinely staffed by physicians, 
RNs, or LPNs, these department personnel must be trained, and given 
appropriate protocols, for the handling of emergency cases. At least one 
individual on duty at the off-campus department during its regular hours 
of operation must be designated as a qualified medical person as 
described in paragraph (d) of this section. The qualified medical person 
must initiate screening of individuals who come to the off-campus 
department with a potential emergency medical condition, and may be able 
to

[[Page 936]]

complete the screening and provide any necessary stabilizing treatment 
at the off-campus department, or to arrange an appropriate transfer.
    (ii) If the off-campus department is a physical therapy, radiology, 
or other facility not routinely staffed with physicians, RNs, or LPNs, 
the department's personnel must be given protocols that direct them to 
contact emergency personnel at the main hospital campus for direction. 
Under this direction, and in accordance with protocols established in 
advance by the hospital, the personnel at the off-campus department must 
describe patient appearance and report symptoms and, if appropriate, 
either arrange transportation of the individual to the main hospital 
campus in accordance with paragraph (i)(3)(i) of this section or assist 
in an appropriate transfer as described in paragraphs (i)(3)(ii) and 
(d)(2) of this section.
    (3) Movement or appropriate transfer from off-campus departments--
(i) If the main hospital campus has the capability required by the 
individual and movement of the individual to the main campus would not 
significantly jeopardize the life or health of the individual, the 
personnel at the off-campus department must assist in arranging this 
movement. Movement of the individual to the main campus of the hospital 
is not considered a transfer under this section, since the individual is 
simply being moved from one department of a hospital to another 
department or facility of the same hospital.
    (ii) If transfer of an individual with a potential emergency 
condition to a medical facility other than the main hospital campus is 
warranted, either because the main hospital campus does not have the 
specialized capability or facilities required by the individual, or 
because the individual's condition is deteriorating so rapidly that 
taking the time needed to move the individual to the main hospital 
campus would significantly jeopardize the life or health of the 
individual, personnel at the off-campusdepartment must, in accordance 
with protocols established in advance by the hospital, assist in 
arranging an appropriate transfer of the individual to a medical 
facility other than the main hospital. The protocols must include 
procedures and agreements established in advance with other hospitals or 
medical facilities in the area of the off-campus department to 
facilitate these appropriate transfers. Such a transfer would require--
    (A) That there be either a request by or on behalf of the individual 
as described in paragraph (d)(1)(ii)(A) of this section or a 
certification by a physician or a qualified medical person as described 
in paragraph (d)(1)(ii)(B) or (d)(1)(ii)(C) of this section; and
    (B) That the transfer comply with the requirements described in 
paragraph (d)(2) of this section.
    (iii) If the individual is being appropriately transferred to 
another medical facility from the off-campus department, the requirement 
for the provision of medical treatment in paragraph (d)(2)(i) of this 
section would be met by provision of medical treatment within the 
capability of the transferring off-campus department.

[59 FR 32120, June 22, 1994, as amended at 62 FR 46037, Aug. 29, 1997; 
65 FR 18548, Apr. 7, 2000; 65 FR 59748, Oct. 6, 2000; 66 FR 1599, Jan. 
9, 2001; 66 FR 59923, Nov. 30, 2001]

    Effective Date Note: At 59 FR 32120, June 22, 1994, Sec. 489.24 was 
added. Paragraphs (d) and (g) contain information collection and 
recordkeeping requirements and will not become effective until approved 
by the Office of Management and Budget.