QUESTION: Our hospital owns and operates our local EMS service. We sometimes get calls at the far edge of the county where it is closer to cross the county line and go to our neighboring hospital than to bring the patient all the way back to our home hospital, and then perhaps have to transfer them to the neighboring hospital for services we don’t have. Our hospital requires us to bring patients to our facility and says it’s required by EMTALA. What gives?
ANSWER: Unless the situation involves one of the exceptions to the rule, EMTALA requires the patient to be brought to the owner-hospital.
EXPLANATION: The EMTALA hospital-owned ambulance rule arose from the practice of “cherry picking” where a hospital would predict a patient’s financial desirability based on the location or type of ambulance call. They would divert potentially “undesirable” patients to other hospitals. A Chicago civil lawsuit over the practice resulted in a bizarre federal appeals court decision where the court reversed itself on its own motion twice and then in a confusing opinion ruled that EMTALA did not apply to ambulances. CMS responded to the decision with the “hospital-owned ambulance rule” because CMS could regulate the ambulance practice through the hospitals that owned them.
Under this rule, hospital-owned and operated ambulances must transport the patient to the owner-hospital. There are, however, exceptions.
- CMS recognizes state, regional, and community laws or regulations that dictate destinations, such as trauma rules or STEMI rules on the basis that the owner-hospital is taken out of the destination decision.
- CMS recognizes EMS protocols if the system is created by entities or organizations that are broader than the owner-hospital, such as a community or regional EMS council made up of various organizations and EMS destination protocols are developed by a medical director and not by the owner –hospital.
- CMS regulations seem to indicate that the hospital could follow destination protocols developed by the system medical director if that director is not employed by or affiliated with the owner-hospital, but I have not encountered that situation.
- A federal court has ruled in a case that when the patient or someone acting on behalf of the patient designates a destination other than the owner-hospital, patient choice over-rides the rule. CMS representatives have subsequently acknowledged that exception but have not modified the rule. (COMMENT: The burden of establishing patient choice rests on the EMS crew, so I recommend a signed refusal of care form be utilized in the field to document refusal of the owner-hospital destination. This situation also raises potential issues of how far “out of district” EMS units are permitted to transport.)
The interesting thing is that subsequent to all of the developments to this rule, another federal court ruled that hospitals may not make a radio diversion of ANY ambulance requesting to come to their facility unless they are on formal diversion. CMS has incorporated that view into their site review guidelines, which theoretically obviates the need for the hospital-owned ambulance rule, but they have not repealed that rule.
[CAUTION NOTES:
- Once ANY TYPE of ambulance has crossed onto hospital property, that patient has PRESENTED for EMTALA purposes and that hospital must provide care consistent with EMTALA.
- Even if a hospital is on formal diversion, a hospital-owned ambulance may not be diverted unless the diversion is based on “community wide” protocols .
- Even if a hospital is on formal diversion and diverts an ambulance or patient, if the ambulance or patient presents anyway, the hospital must provide care consistent with EMTALA.
- CMS is unlikely to accept the rationale of PATIENT CHOICE, regardless of a signed refusal form, if it appears the crew or online medical control suggested or attempted to influence patient choice of a different destination, much as their position on patient-requested transfers.
- The authority of EMS systems to limit their response zones and transport destinations varies by state and local laws.
- For CMS site review guidelines see TAG A-2406/C-2406 or pages 93 et. seq. EMTALA Field Guide 3rd Edition ]