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A bill to be entitled

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An act relating to access to emergency services and care;

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amending s. 395.002, F.S.; redefining the term

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"stabilized" to include patients awaiting further

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emergency services and care; amending s. 395.1041, F.S.;

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clarifying legislative intent regarding followup treatment

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after a patient is stabilized; deleting obsolete dates and

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requirements relating to inventories of hospital emergency

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services; authorizing the transmission of a patient's

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medical records to another emergency department prior to

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the transfer of a patient; authorizing the Agency for

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Health Care Administration to adopt rules to facilitate a

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hospital's compliance with its requirement to provide

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emergency care; deleting obsolete dates and requirements

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relating to exemptions from required services; providing

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an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Subsection (29) of section 395.002, Florida

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Statutes, is amended to read:

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     395.002  Definitions.--As used in this chapter:

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     (29)  "Stabilized" means, with respect to an emergency

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medical condition, that no material deterioration of the

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condition is likely, within reasonable medical probability, to

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result from the transfer of the patient from a hospital or while

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the patient is awaiting further emergency services and care.

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     Section 2.  Subsections (1), (2), and (3) of section

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395.1041, Florida Statutes, are amended to read:

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     395.1041  Access to emergency services and care.--

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     (1)  LEGISLATIVE INTENT.--The Legislature finds and declares

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it to be of vital importance that emergency services and care be

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provided by hospitals and physicians to every person in need of

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such care. The Legislature finds that persons have been denied

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emergency services and care by hospitals. It is the intent of the

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Legislature that the agency vigorously enforce the ability of

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persons to receive all necessary and appropriate emergency

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services and care and that the agency act in a thorough and

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timely manner against hospitals and physicians which deny persons

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emergency services and care. It is further the intent of the

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Legislature that hospitals, emergency medical services providers,

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and other health care providers work together in their local

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communities to enter into agreements or arrangements to ensure

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access to emergency services and care. The Legislature further

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recognizes that appropriate emergency services and care often

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require followup consultation and treatment that may not occur

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immediately after a patient is stabilized in order to effectively

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care for emergency medical conditions.

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     (2)  INVENTORY OF HOSPITAL EMERGENCY SERVICES.--The agency

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shall establish and maintain an inventory of hospitals with

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emergency services. The inventory shall list all services within

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the service capability of the hospital, and such services shall

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appear on the face of the hospital license. Each hospital having

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emergency services shall notify the agency of its service

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capability in the manner and form prescribed by the agency. The

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agency shall use the inventory to assist emergency medical

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services providers and others in locating appropriate emergency

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medical care. The inventory shall also be made available to the

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general public. On or before August 1, 1992, the agency shall

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request that each hospital identify the services which are within

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its service capability. On or before November 1, 1992, the agency

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shall notify each hospital of the service capability to be

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included in the inventory. The hospital has 15 days from the date

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of receipt to respond to the notice. By December 1, 1992, the

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agency shall publish a final inventory. Each hospital shall

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reaffirm its service capability when its license is renewed and

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shall notify the agency of the addition of a new service or the

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termination of a service prior to a change in its service

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capability.

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     (3)  EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF

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FACILITY OR HEALTH CARE PERSONNEL.--

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     (a)  Every general hospital which has an emergency

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department shall provide emergency services and care for any

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emergency medical condition when:

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     1.  Any person requests emergency services and care; or

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     2.  Emergency services and care are requested on behalf of a

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person by:

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     a.  An emergency medical services provider who is rendering

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care to or transporting the person; or

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     b.  Another hospital, when such hospital is seeking a

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medically necessary transfer, except as otherwise provided in

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this section.

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     (b)  Arrangements for transfers must be made between

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hospital emergency services personnel for each hospital, unless

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other arrangements between the hospitals exist. A hospital may

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transmit relevant medical records of a patient in the emergency

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department who needs to be transferred to another hospital

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emergency department in accordance with the provisions of this

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section in advance of the arrival of the patient at the receiving

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hospital in order to expedite care and treatment of the patient

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or to assist in determining whether the receiving hospital has

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the requisite service capability and service capacity to provide

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further emergency care and treatment to that patient.

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     (c)  A patient, whether stabilized or not, may be

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transferred to another hospital that which has the requisite

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service capability or is not at service capacity, if:

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     1.  The patient, or a person who is legally responsible for

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the patient and acting on the patient's behalf, after being

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informed of the hospital's obligation under this section and of

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the risk of transfer, requests that the transfer be effected;

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     2.  A physician has signed a certification that, based upon

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the reasonable risks and benefits to the patient, and based upon

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the information available at the time of transfer, the medical

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benefits reasonably expected from the provision of appropriate

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medical treatment at another hospital outweigh the increased

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risks to the individual's medical condition from effecting the

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transfer; or

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     3.  A physician is not physically present in the emergency

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services area at the time an individual is transferred and a

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qualified medical person signs a certification that a physician,

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in consultation with personnel, has determined that the medical

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benefits reasonably expected from the provision of appropriate

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medical treatment at another medical facility outweigh the

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increased risks to the individual's medical condition from

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effecting the transfer. The consulting physician must countersign

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the certification;

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provided that this paragraph shall not be construed to require

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acceptance of a transfer that is not medically necessary.

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     (d)1.  Every hospital shall ensure the provision of services

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within the service capability of the hospital, at all times,

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either directly or indirectly through an arrangement with another

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hospital, through an arrangement with one or more physicians, or

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as otherwise made through prior arrangements. A hospital may

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enter into an agreement with another hospital for purposes of

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meeting its service capability requirement, and appropriate

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compensation or other reasonable conditions may be negotiated for

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these backup services. The agency may adopt rules providing for

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physician on-call coverage and other standards to help facilitate

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a hospital's compliance with this subsection related to:

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     a. Conditions under which a physician may be on call at

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multiple hospitals concurrently;

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     b. Conditions under which a physician may perform scheduled

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elective surgeries while on call; and

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     c. The use of telemedicine to provide consultation or care

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for a patient in the emergency department.

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     2.  If any arrangement requires the provision of emergency

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medical transportation, such arrangement must be made in

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consultation with the applicable provider and may not require the

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emergency medical service provider to provide transportation that

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is outside the routine service area of that provider or in a

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manner that impairs the ability of the emergency medical service

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provider to timely respond to prehospital emergency calls.

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     3.  A hospital shall not be required to ensure service

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capability at all times as required in subparagraph 1. if, prior

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to the receiving of any patient needing such service capability,

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such hospital has demonstrated to the agency that it lacks the

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ability to ensure such capability and it has exhausted all

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reasonable efforts to ensure such capability through backup

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arrangements. In reviewing a hospital's demonstration of lack of

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ability to ensure service capability, the agency shall consider

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factors relevant to the particular case, including the following:

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     a.  Number and proximity of hospitals with the same service

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capability.

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     b.  Number, type, credentials, and privileges of

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specialists.

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     c.  Frequency of procedures.

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     d.  Size of hospital.

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     4. The agency shall adopt publish proposed rules

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implementing a reasonable exemption procedure by November 1,

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1992. Subparagraph 1. shall become effective upon the effective

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date of said rules or January 31, 1993, whichever is earlier. For

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a period not to exceed 1 year from the effective date of

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subparagraph 1., a hospital requesting an exemption shall be

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deemed to be exempt from offering the service until the agency

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initially acts to deny or grant the original request. The agency

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has 45 days following from the date of receipt of the request for

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an exemption to approve or deny the request. After the first year

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from the effective date of subparagraph 1., if the agency fails

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to initially act within the time period, the hospital is deemed

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to be exempt from offering the service as set forth in the

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request until the agency initially acts to deny the request.

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     (e)  Except as otherwise provided by law, all medically

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necessary transfers shall be made to the geographically closest

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hospital that has with the service capability, unless another

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prior arrangement is in place or the geographically closest

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hospital is at service capacity. When the condition of a

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medically necessary transferred patient improves so that the

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service capability of the receiving hospital is no longer

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required, the receiving hospital may transfer the patient back to

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the transferring hospital and the transferring hospital shall

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receive the patient within its service capability.

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     (f)  In no event shall the provision of emergency services

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and care, the acceptance of a medically necessary transfer, or

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the return of a patient pursuant to paragraph (e) be based upon,

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or affected by, the person's race, ethnicity, religion, national

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origin, citizenship, age, sex, preexisting medical condition,

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physical or mental handicap, insurance status, economic status,

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or ability to pay for medical services, except to the extent that

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a circumstance such as age, sex, preexisting medical condition,

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or physical or mental handicap is medically significant to the

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provision of appropriate medical care to the patient.

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     (g)  Neither the hospital nor its employees, nor any

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physician, dentist, or podiatric physician shall be liable in any

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action arising out of a refusal to render emergency services or

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care if the refusal is made after screening, examining, and

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evaluating the patient, and is based on the determination,

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exercising reasonable care, that the person is not suffering from

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an emergency medical condition or a determination, exercising

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reasonable care, that the hospital does not have the service

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capability or is at service capacity to render those services.

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     (h)  A hospital may request and collect insurance

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information and other financial information from a patient, in

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accordance with federal law, if emergency services and care are

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not delayed. A No hospital to which another hospital is

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transferring a person in need of emergency services and care may

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not require the transferring hospital or any person or entity to

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guarantee payment for the person as a condition of receiving the

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transfer. In addition, a hospital may not require any contractual

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agreement, any type of preplanned transfer agreement, or any

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other arrangement to be made prior to or at the time of transfer

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as a condition of receiving an individual patient being

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transferred. However, the patient or the patient's legally

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responsible relative or guardian shall execute an agreement to

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pay for emergency services or care or otherwise supply insurance

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or credit information promptly after the services and care are

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rendered.

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     (i)  Each hospital offering emergency services shall post,

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in a conspicuous place in the emergency service area, a sign

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clearly stating a patient's right to emergency services and care

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and the service capability of the hospital.

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     (j)  If a hospital subject to the provisions of this chapter

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does not maintain an emergency department, its employees shall

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nevertheless exercise reasonable care to determine whether an

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emergency medical condition exists and shall direct the persons

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seeking emergency care to a nearby facility that which can render

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the needed services and shall assist the persons seeking

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emergency care in obtaining the services, including

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transportation services, in every way reasonable under the

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circumstances.

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     (k)1.  Emergency medical services providers may not

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condition the prehospital transport of any person in need of

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emergency services and care on the person's ability to pay. Nor

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may emergency medical services providers condition a transfer on

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the person's ability to pay when the transfer is made necessary

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because the patient is in immediate need of treatment for an

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emergency medical condition for which the hospital lacks service

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capability or when the hospital is at service capacity. However,

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the patient or the patient's legally responsible relative or

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guardian shall execute an agreement to pay for the transport or

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otherwise supply insurance or credit information promptly after

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the transport is rendered.

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     2.  A hospital may enter into an agreement with an emergency

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medical services provider for purposes of meeting its service

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capability requirements, and appropriate compensation and other

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reasonable conditions may be negotiated for these services.

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     (l)  Hospital personnel may withhold or withdraw

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cardiopulmonary resuscitation if presented with an order not to

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resuscitate executed pursuant to s. 401.45. Facility staff and

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facilities shall not be subject to criminal prosecution or civil

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liability, nor be considered to have engaged in negligent or

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unprofessional conduct, for withholding or withdrawing

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cardiopulmonary resuscitation pursuant to such an order. The

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absence of an order not to resuscitate executed pursuant to s.

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401.45 does not preclude a physician from withholding or

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withdrawing cardiopulmonary resuscitation as otherwise permitted

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by law.

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     Section 3.  This act shall take effect July 1, 2008.