12VAC5-412-290.C Emergency Services. (Transfer Agreement)

The rationale given by Commissioner Levine and VDH for eliminating the written agreement was, “The written agreement is not necessary due to the Emergency Medical Treatment and Labor Act (EMTALA). Some facilities may not be able to obtain such written agreements as the closest hospital may refuse to enter into such an agreement for a variety of reasons. Likely impact: Less burdensome regulations.”

EMTALA is not a replacement for a written agreement. EMTALA is an “anti-dumping” law, designed to prevent hospitals from transferring uninsured or Medicaid patients without at least providing a basic medical screening examination. 

As the Commissioner noted during discussion from the September 2015 BOH meeting, this requirement is already in the Board of Medicine Office-based Anesthesia regulations, so how can it be too burdensome? If it is too burdensome, does the Department of Health still expect abortion facilities to come into compliance with the Office-based Anesthesia transfer agreement requirement?

Does the federal government think that a written transfer agreement is too burdensome for all providers of Medicaid/Medicare patients? Federal regulations for CMS services require a written agreement between hospitals and outpatient facilities. If a written agreement is not currently in place, every physician performing surgery must have admitting privileges at a nearby hospital. Fifteen states require facilities to have hospital transfer agreements in place, including our neighbor to the South, North Carolina. Another 15 require either a transfer agreement or hospital admitting privileges, including our neighbor to the North, Maryland. Written transfer agreements are appropriate and serve a purpose in the rest of the medical community.

All of VA’s abortion facilities currently have a written agreement. As far as we know, there has never been a deficiency cited at any abortion facility regarding a written agreement. To remove written agreements from the regulations would not serve the purpose of amending the abortion facility regulations as stated in the regulatory action documents…“Upon review, the Department of Health found areas of the regulations which could be improved, therefore protecting the health and safety of patients of these facilities to a higher degree.” Removal of this requirement will lead to less patient care and safety. The health of patients would not be protected nor improved. I recommend keeping the written transfer agreements in the abortion facility regulations.

At the very least, the Commissioner and VDH should not remove the requirement that facilities should be adequately prepared if and when emergencies arise. Even if one believes abortion facilities are unable to secure transfer agreements, the provisions for the transfer agreement should still be made a part of Emergency Services. An effective emergency transfer depends upon the existence of an established procedure, which is why this is just good medical practice, whether mandated by accrediting agencies or government regulations, or not.

In the absence of a written agreement, more information regarding emergency situations needs to be included in this section. I suggest using language from Maryland’s abortion regulations, as follows:

“The abortion facility shall have an effective procedure for the transfer of patients to a nearby hospital when care beyond the capabilities of the facility is required. Procedures for emergency transfer to a hospital shall include, at a minimum:

(1) Written protocols and procedures related to emergency transfer procedures;

(2) A mechanism for authorization and notification of the hospital of a pending emergency case;

(3) A mechanism for arranging appropriate transportation to the hospital;

(4) Protocols for transmitting a copy of the patient’s medical record to the hospital; and

(5) Appropriate training for staff in the facility’s written protocols and procedures

When emergency transfer is necessary, the responsible physician at the abortion facility must provide direct communication to appropriate receiving facility staff regarding the status of the patient, the procedure details, and the suspected complication. All patients must be provided with contact information for a representative of the abortion facility, so that an emergency department physician or treating provider may make contact with a provider of the facility if late complications arise.”