As the overall healthcare delivery system places a greater emphasis on quality measurement, quality-based reimbursement, and regionalized networks such as accountable care organizations, the importance of carefully developed inter-provider patient transfer and discharge arrangements will increase. 

There will be a heightened need for agreements that apportion legal and financial responsibility for a transferred or discharged patient’s medical condition and quality outcome, address seamless access to patient records, and ensure appropriate follow-up and coordination of care.  

Providers should ensure their systems appropriately address:

  • Transfer or discharge of the incompetent patient, the mentally ill patient, the indigent/charity care patient, the out-of-state patient, the undocumented patient, the patient with limited English proficiency, the patient in late-stage pregnancy, and the newborn or pediatric patient
  • Transfer or discharge that implicates the hospital’s participation in regional EMS or trauma systems
  • Transfer among members of a health system or provider network
Federal regulation

EMTALA provisions directly impact the manner in which hospitals transfer or discharge patients presenting in the ED. Among other requirements, EMTALA mandates the hospital provide a prompt and appropriate medical screening to anyone presenting at the ED (or anywhere at the hospital in what a reasonably prudent person would understand to be an emergency medical condition). 

In the case of patients with emergency medical conditions or in active labor, the hospital must provide necessary stabilization treatment; provide appropriate transfer to another facility upon patient request (or if the hospital does not have the ability to provide treatment necessary to stabilize the patient’s condition); accept appropriate transfers of patients if the hospital has a specialized capacity that is not available at the transferring hospital and has the capacity to treat the patient; and obtain or attempt to obtain appropriate patient documentation in connection with examination, treatment, refusal of treatment, and/or transfer. 

EMTALA obligations generally apply to the patient in the ED. For a patient admitted to the hospital, federal Medicare conditions of participation govern hospital transfer and discharge procedures. Hospitals that participate in Medicare as “deemed status” institutions must also adhere to detailed Joint Commission accreditation standards for patient transfer and discharge policies and procedures. 

CMS requires that hospitals provide Medicare beneficiaries with certain written discharge and appeal rights notices. 

Generally, a patient must be given the document twice during his or her hospital stay. If a patient appeals the discharge decision, he or she ordinarily is not discharged during an expedited appeal process. The burden of proof is on the hospital to show the correctness of the discharge. 

When implementing standing inter-provider transfer agreements (for example, between a nursing home and a hospital or between a secondary hospital and tertiary hospital), it is important to ensure compliance with federal HIPAA requirements regarding the sharing of patient records and health information. Any such agreements should be developed in a manner that mitigates possible concerns under federal anti-kickback or anti-fraud principles—for example, by explicitly documenting the lack of agreement to cross-refer patients.

State regulation

Under state hospital licensure regulations, hospitals must develop and adhere to specific admission, discharge, and transfer policies and procedures. As is the case with the federal law that applies to Medicare beneficiaries, state hospital licensure laws typically require development of discharge plans of care and advance notice of discharge. Specialized transfer and discharge licensure requirements may apply for certain patient populations (such as mentally ill individuals, newborns, and pediatric patients). 

Protocols for the transfer and discharge of incompetent patients should be developed in compliance with state law regarding surrogate decisionmaking, advance directives, and guardianship. 

Some states also have enacted patient-bill-of-rights laws, which may contain provisions impacting hospital transfer and discharge procedures. Similarly, both federal and some states laws require that language translation services be offered patients with limited English proficiency. Finally, state privacy and confidentiality laws may impose specific requirements for the sharing of personal health information between a discharging and receiving facility.

Although frequently overlooked, hospital transfer and discharge policies must be customized to state emergency medical systems and trauma center/network regulations. Hospitals that participate in a state-administered EMS system may be subject to regulations dictating which hospitals will receive patients who are in certain designated emergency medical conditions, may have committed to following certain procedures with respect to the hospital going on bypass status, and may have committed to accepting certain types of patient transfers. Similarly, hospitals participating in a state-administered trauma center network will be subject to detailed regulation regarding the acceptance and transfer of trauma patients. 

Risk management

Improper or poorly documented patient transfers or discharges, or the refusal to allow discharges, can create significant liability exposure for providers. A competent patient who is not allowed to leave the hospital may have an action for the tort of false imprisonment, and continued application of medical care under these circumstances may trigger added legal exposure. 

Should a competent patient wish to be discharged against medical advice, the patient’s competence should be determined and documented. The patient should be fully informed of the clinical risk of leaving, and the details of that informed consent should be documented. 

Should a patient not be competent, the consent of his or her legally authorized representative to transfer or discharge is required. In the event a patient’s competence is in question and discharge could result in harm to the patient, steps should be taken to protect the patient through a documented competence assessment.

A hospital must exercise special care when discharging or transferring patients who pose a serious threat of danger to others. Depending on the circumstances and applicable state law, this may involve initiating involuntary hospitalization proceedings, issuing warnings to the patients and to third parties who may be at risk, or notifying law enforcement and other government authorities. 

Documentation and compliance

Healthcare institutions must have detailed policies and procedures in place to address patient transfers and discharges, including competence determinations, transfer and discharge evaluations, patient discharge notices, and minimally necessary transfer and discharge documentation. These policies should be reviewed for compliance with federal and state law and adherence to sound risk management principles. 

As the broader healthcare system becomes more focused on patient-centered care, bundling of services, and quality-based reimbursement, transfer agreements should become more detailed regarding apportionment of legal and financial risk for transferred patients, seamless access to patient health information, and ongoing follow up and coordination of care. 

Finally, administrators should make ongoing refinements to the organization’s patient transfer and discharge practices. Involvement of the governing board, administration, and clinical leadership in this compliance program oversight is beneficial. 

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