10. Emergency Services (Sec. 482.50)

    We propose to delete the existing regulations at Sec. 482.2 
(Condition of participation: Provision of emergency services by 
nonparticipating hospitals), and to add a single new emergency services 
condition that would replace both current Sec. 482.12(f) (Condition of 
participation: Governing body; Standard: Emergency services) and 
current Sec. 482.55 (Condition of participation: Emergency services). 
We believe Sec. 482.2 need not be retained since the regulations at 42 
CFR 424.101 set forth a definition of ``hospital'' that is used for 
purposes of payment for services to Medicare patients that are 
furnished on an emergency basis by a hospital that does not participate 
in the program. By addressing the two latter areas under a single 
regulation, we hope to simplify the organization of the regulations and 
eliminate the need for the user of the regulations to refer to separate 
sections to review the rules on closely related services. For the 
reasons explained below, we also are proposing to add a separate 
standard for hospitals that offer emergency services on less than a 
full-time basis.

    In the standard on hospitals providing full-time emergency 
services, we have emphasized requirements that most directly affect the 
safety of patients. These are the requirements regarding the personnel 
who furnish the services, the appropriateness of the services to 
patient needs, and the integration of emergency services with those of 
other hospital departments. Regarding the proposed requirement for 
sufficient numbers of personnel, we note that some hospitals may choose 
to meet patient needs by using a comparatively smaller, but more highly 
trained and skilled staff. In assessing compliance with this 
requirement, our primary concern will be to determine whether emergency 
service staffing is adequate to produce good treatment outcomes.

    We are proposing the second standard, which is applicable only to 
hospitals providing part-time emergency services, in order to allow 
more flexibility to hospitals that find it necessary, because of 
staffing limitations, low emergency room volumes, or other factors, to 
limit the times during which emergency services can be offered. Because 
of the nature of emergency services, it clearly would be desirable to 
have them available on a 24-hour per day, 7-day per week basis. 
However, many hospitals, particularly those that are small and are 
located in remote rural areas, find it difficult to recruit and pay 
staff to furnish emergency services on this schedule. To avoid a 
situation in which these hospitals find it necessary to terminate 
emergency services altogether, we propose that hospitals that are 
located in rural areas and have fewer than 100 beds may offer emergency 
services on a part-time basis. We propose to use the definition of 
``rural area'' now set forth in our regulations at 42 CFR 
412.62(f)(1)(ii). Under that definition, an area is considered 
``rural'' if it is located outside any Metropolitan Statistical Area 
(MSA) or New England County Metropolitan Area (NECMA), and outside 
specified New England counties.

    We emphasize that this flexibility is not intended to foster 
development of dual standards of care--during its stated hours of 
operation, a hospital emergency department or service must meet exactly 
the same standards as full-time departments or services. However, at 
the times when it chooses not to offer emergency services, the hospital 
would be required to meet only the standard for hospitals that do not 
offer emergency care.

    Section 1867 of the Act (Examination and Treatment of Emergency 
Medical Conditions and Women in Labor) imposes certain obligations on 
Medicare-participating hospitals that have emergency departments. If an 
individual comes to the hospital's emergency department and a request 
is made on the individual's behalf for examination or treatment for a 
medical condition, the hospital must provide, within the capability of 
its emergency department, an appropriate medical screening examination 
and, if necessary, either stabilizing treatment or an appropriate 
transfer. Section 1867 of the Act does not deal explicitly with the 
situation of a hospital that opens its emergency department on only a 
part-time basis. However, it is our policy that a hospital that offers 
emergency services on a regular, part-time basis is not considered to 
have an emergency department under section 1867 at the scheduled times 
when emergency services are not available. At those times only, the hospital is not 
subject to the requirements of section 1867 of the Act. The hospital 
would remain obligated at those times to meet the requirements of 
proposed Sec. 482.50(c) for appraisals of emergency cases, initial 
treatment, and referral when appropriate. At all other times (that is, 
when emergency care is offered), the hospital is fully responsible for 
compliance with the statute (and with the implementing regulations at 
42 CFR 489.24) and also would be obligated to meet the emergency 
services requirements set forth in proposed Sec. 482.50(a) and (b).

    We expect that a hospital offering part-time emergency services 
will do so in good faith, and not ``open'' and ``close'' its emergency 
department selectively, in an attempt to avoid meeting its statutory 
obligations to some patients based on their perceived inability to pay. 
We will continue to investigate all allegations we receive of 
violations of section 1867 of the Act and will not hesitate to initiate 
termination proceedings, or to refer cases to the Office of Inspector 
General, if it is clear that a violation has occurred. We welcome 
comments on this proposal.

    The third proposed standard deals with hospitals not offering 
emergency services. We propose to continue to require such a hospital 
to provide for appraisal of emergencies, initial treatment, and 
referral of patients when appropriate. However, we propose to delete 
current process-oriented requirements having to do with the 
organization of the hospital's emergency services (Sec. 482.55(a)(1)) 
and with policies and procedures for the medical care provided in the 
emergency department (Sec. 482.55(a)(3)). We believe those requirements 
should be eliminated in favor of those that focus on activities more 
directly related to outcomes.