(a) Definitions.
  (1) Designated provider--A provider of health care services, selected by a health maintenance organization, a self-insured business corporation, a beneficial society, the Veterans Administration, CHAMPUS, a business corporation, an employee organization, a county, a public hospital, a hospital district, or any other entity to provide health care services to a patient with whom the entity has a contractual, statutory, or regulatory relationship that creates an obligation for the entity to provide the services to the patient.
  (2) Mandated provider--A person who provides health care services, is selected by a county, public hospital, or hospital district, and agrees to provide health care services to eligible residents.
(b) General.
  (1) The governing body of each hospital shall adopt, implement, and enforce a policy relating to patient transfers that is consistent with this section and contains each of the requirements in subsection (c) of this section. The policies shall identify hospital staff who have the authority to represent the hospital and the physician with regard to the transfer from or receipt of patients into the hospital.
  (2) The transfer policy shall be adopted by the governing body of the hospital after consultation with the medical staff and shall apply to transfers between hospitals licensed under the Health and Safety Code, Chapters 241 and 577, as well as transfers to hospitals which are exempt from licensing.
  (3) The policy shall govern transfers not covered by a transfer agreement.
  (4) The movement of a stable patient from a hospital to another hospital is not considered to be a transfer under this section if it is the understanding and intent of both hospitals that the patient is going to the second hospital only for tests, the patient will not remain overnight at the second hospital, and the patient will return to the first hospital. This paragraph applies only when a patient remains stable during transport to and from hospitals and during testing.
  (5) The hospital's transfer policy shall include a written operational plan to provide for patient transfer transportation services if the hospital does not provide its own patient transfer transportation services.
  (6) If possible, each governing body, after consultation with the medical staff, shall implement its transfer policy by adopting transfer agreements with other hospitals in accordance with §133.61 of this title (relating to Hospital Patient Transfer Agreements).
  (7) A public hospital or a hospital district shall accept the transfer of its eligible residents if the public hospital or hospital district has appropriate facilities, services, and staff available for providing care to the patient.
  (8) The hospital's policy shall recognize and comply with the requirements of the Indigent Health Care and Treatment Act, Health and Safety Code (HSC), §§61.030 - 61.032 and §§61.057 - 61.059 (Mandated Providers) since those requirements may apply to a patient.
  (9) The hospital's policy shall acknowledge contractual obligations and comply with statutory or regulatory obligations which may exist concerning a patient and a designated provider.
  (10) The hospital's policy shall require that all reasonable steps are taken to secure the written informed consent of a patient, or of a person acting on a patient's behalf, when refusing a transfer or related examination and treatment. Reasonable steps include:
    (A) a factual explanation of the increased medical risks to the patient reasonably expected from not being transferred, examined, or treated at the transferring hospital;
    (B) a factual explanation of any increased risks to the patient from not effecting the transfer; and
    (C) a factual explanation of the medical benefits reasonably expected from the provision of appropriate treatment at another hospital.
    (D) The informed refusal of a patient, or of a person acting on a patient's behalf, to examination, evaluation or transfer shall be documented and signed if possible by the patient or by a person acting on the patient's behalf, dated and witnessed by the attending physician or hospital employee, and placed in the patient's medical record.
  (11) The hospital's policy shall recognize the right of an individual to request a transfer into the care of a physician and a hospital of the individual's own choosing.
  (12) Transfer of patients may occur routinely or as part of a regionalized plan for obtaining optimal care for patients at a more appropriate or specialized facility.
(c) Requirements for transfer of patients between hospitals.
  (1) Discrimination. Except as is specifically provided in subsection (b)(8) and (9) of this section, relating, respectively, to mandated providers and designated providers, the hospital policy shall provide that the transfer of a patient may not be predicated upon arbitrary, capricious, or unreasonable discrimination based upon race, religion, national origin, age, sex, physical condition, economic status, insurance status or ability to pay.
  (2) Disclosure. The hospital's policy shall recognize the right of an individual to request transfer into the care of a physician and a hospital of his own choosing; however, if a patient requests or consents to transfer for economic reasons and the patient's choice is predicated upon or influenced by representations made by the transferring physician or hospital administration regarding the availability of medical care and hospital services at a reduced cost or no cost to the patient, the physician or hospital administration shall fully disclose to the patient the eligibility requirements established by the patient's chosen physician or hospital.
  (3) Patient. A patient is an individual:
    (A) seeking medical treatment who may or may not be under the immediate supervision of a personal attending physician, has one or more undiagnosed or diagnosed medical conditions, and who, within reasonable medical probability, requires immediate or continuing hospital services and medical care; or
    (B) admitted to the hospital as a patient.
  (4) Patient evaluation. The hospital's policy shall provide that each patient who arrives at the hospital is:
    (A) evaluated by a physician who is present in the hospital at the time the patient presents or is presented or evaluated by a physician on-call who is:
      (i) physically able to reach the patient within 30 minutes after being informed that a patient is present at the hospital who requires immediate medical attention; or
      (ii) accessible by direct, telephone, or radio communication within 30 minutes with a registered nurse, physician assistant or other qualified medical personnel as established by the governing body at the hospital under orders to assess and report the patient's condition to the physician; and
    (B) personally examined and evaluated by the physician before an attempt to transfer is made; however:
      (i) after receiving a report on the patient's condition from the hospital's registered nurse, physician assistant or other qualified medical personnel as established by the governing body by telephone or radio, if the physician on-call determines that an immediate transfer of the patient is medically appropriate and that the time required to conduct a personal examination and evaluation of a patient will unnecessarily delay the transfer to the detriment of the patient, the physician on-call may order the transfer by telephone or radio; and
      (ii) physician orders for the transfer of a patient which are issued by telephone or radio shall be reduced to writing in the patient's medical record, signed by the registered nurse, physician assistant or other qualified medical personnel as established by the governing body receiving the order, and countersigned by the physician authorizing the transfer as soon as possible. The patient transfers resulting from physician orders issued by telephone or radio shall be subject to automatic review by the medical staff pursuant to paragraph (8) of this subsection.
  (5) Hospital personnel, written protocols, standing delegation orders, eligibility and payment information. The policy of the transferring and receiving hospital shall provide that licensed nurses and other qualified personnel are available and on duty to assist with patient transfers and to provide accurate information regarding eligibility and payment practices. The policy shall provide that written protocols or standing delegation orders are in place to guide hospital personnel when a patient requires transfer to another hospital.
  (6) Special requirements related to the transfer of patients who have emergency medical conditions.
Cont'd...
(A) If a patient at a hospital has an emergency medical condition which has not been stabilized or when stabilization of the patient's vital signs is not possible because the hospital or emergency treatment area does not have the appropriate equipment or personnel to correct the underlying process (e.g. children's hospitals, thoracic surgeon on staff, or cardiopulmonary bypass capability), evaluation and treatment shall be performed and transfer shall be carried out as quickly as possible.
    (B) The hospital's policy shall provide that the hospital may not transfer a patient with an emergency medical condition which has not been stabilized unless:
      (i) the individual (or a legally responsible person acting on the individual's behalf), after being informed of the hospital's obligations under this section and of the risk of transfer, requests the transfer, in writing and indicates the reasons for the request, as well as that he or she is aware of the risks and benefits of the transfer;
      (ii) a physician has signed a certification, which includes a summary of the risks and benefits, that, based on the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital outweigh the increased risks to the patient and, in the case of labor, to the unborn child from effecting the transfer; or
      (iii) if the physician who made the determination to transfer a patient with an emergency condition is not physically present in the emergency treatment area at the time of transfer, a qualified medical person may sign a certification described in clause (ii) of this subparagraph after consultation with the physician. The physician shall countersign the physician certification within a reasonable period of time.
    (C) Except as is specifically provided in subsection (b)(8) and (9) of this section, the hospital's policy shall provide that the transfer of patients who have emergency medical conditions, as determined by a physician, shall be undertaken for medical reasons only. The hospital must provide medical treatment within its capacity that minimizes the risks to the individual's health and, in the case of a woman in labor, the health of the unborn child.
    (D) A hospital that has specialized capabilities or facilities (including, but not limited to such facilities as burn units, shock-trauma units, neonatal intensive care units, or, with respect to rural areas, regional referral centers) may not refuse to accept from a referring hospital an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. Except as expressly permitted in clauses (i) and (ii) of this subparagraph, a hospital's policy shall provide for the receipt of patients who have an emergency medical condition from other hospitals so that upon notification from a transferring physician or a transferring hospital prior to transfer, the receiving hospital shall respond to the transferring hospital and transferring physician with the status of the transfer request within 30 minutes and either accept or refuse the transfer. The time period begins to run at the time a member of the staff of the receiving hospital receives the call initiating the request to transfer.
      (i) The receiving hospital's policy may permit response to the transferring hospital and transferring physician within a period of time in excess of 30 minutes but no longer than one hour if there are extenuating circumstances for the delay. If the transfer is accepted, the reason for the delay shall be documented on the memorandum of transfer.
      (ii) The response time may be extended before the expiration of the initial 30 minutes period by agreement among the transferring hospital and transferring physician and the receiving hospital and receiving physician. If the transfer is accepted, the agreed extension shall be documented in the memorandum of transfer.
  (7) Physician's duties and standard of care.
    (A) The policy shall provide that the transferring physician shall determine and order life support measures which are medically appropriate to stabilize the patient prior to transfer and to sustain the patient during transfer.
    (B) The policy shall provide that the transferring physician shall determine and order the utilization of appropriate personnel and equipment for the transfer.
    (C) The policy shall provide that in determining the use of medically appropriate life support measures, personnel, and equipment, the transferring physician shall exercise that degree of care which a reasonable and prudent physician exercising ordinary care in the same or similar locality would use for the transfer.
    (D) The policy shall provide that except as allowed under paragraph (4)(B) of this subsection, prior to each patient transfer, the physician who authorizes the transfer shall personally examine and evaluate the patient to determine the patient's medical needs and to ensure that the proper transfer procedures are used.
    (E) The policy shall provide that prior to transfer, the transferring physician shall ensure that a receiving hospital and physician that are appropriate to the medical needs of the patient have accepted responsibility for the patient's medical treatment and hospital care.
  (8) Record review for standard of care. The hospital's policy shall provide that the hospital's medical staff review appropriate records of patients transferred from the hospital to determine that the appropriate standard of care has been met.
  (9) Medical record.
    (A) The hospital's policy shall provide that a copy of those portions of the patient's medical record which are available and relevant to the transfer and to the continuing care of the patient be forwarded to the receiving physician and receiving hospital with the patient. If all necessary medical records for the continued care of the patient are not available at the time the patient is transferred, the records shall be forwarded to the receiving physician and hospital as soon as possible.
    (B) The medical record shall contain at a minimum:
      (i) a brief description of the patient's medical history and physical examination;
      (ii) a working diagnosis and recorded observations of physical assessment of the patient's condition at the time of transfer;
      (iii) the reason for the transfer;
      (iv) the results of all diagnostic tests, such as laboratory tests;
      (v) pertinent X-ray films and reports; and
      (vi) any other pertinent information.
  (10) Memorandum of transfer.
    (A) The hospital's policy shall provide that a memorandum of transfer be completed for every patient who is transferred.
    (B) The memorandum shall contain the following information:
      (i) the patient's full name, if known;
      (ii) the patient's race, religion, national origin, age, sex, physical handicap, if known;
      (iii) the patient's address and next of kin, address, and phone number if known;
      (iv) the names, telephone numbers and addresses of the transferring and receiving physicians;
      (v) the names, addresses, and telephone numbers of the transferring and receiving hospitals;
      (vi) the time and date on which the patient first presented or was presented to the transferring physician and transferring hospital;
      (vii) the time and date on which the transferring physician secured a receiving physician;
      (viii) the name, date, and time hospital administration was contacted in the receiving hospital;
      (ix) signature, time, and title of the transferring hospital administration who contacted the receiving hospital;
      (x) the certification required by paragraph (6)(B)(ii) of this subsection, if applicable (the certification may be part of the memorandum of transfer form or may be on a separate form attached to the memorandum of transfer form);
      (xi) the time and date on which the receiving physician assumed responsibility for the patient;
      (xii) the time and date on which the patient arrived at the receiving hospital;
      (xiii) signature and date of receiving hospital administration;
      (xiv) type of vehicle and company used;
      (xv) type of equipment and personnel needed in transfers;
      (xvi) name and city of hospital to which patient was transported;
      (xvii) diagnosis by transferring physician; and
      (xviii) attachments by transferring hospital.
    (C) The receipt of the memorandum of transfer shall be acknowledged in writing by the receiving hospital administration and receiving physician.
Cont'd...
(D) A copy of the memorandum of transfer shall be retained by the transferring and receiving hospitals. The memorandum shall be filed separately from the patient's medical record and in a manner which will facilitate its inspection by the department. All memorandum of transfer forms filed separately shall be retained for five years. A copy of the memorandum of transfer may also be filed with the patient's medical record.
(d) Violations. A hospital violates the Act and this section if:
  (1) the hospital fails to comply with the requirements of this section; or
  (2) the governing body fails or refuses to:
    (A) adopt a transfer policy which is consistent with this section and contains each of the requirements in subsection (c) of this section;
    (B) adopt a memorandum of transfer form which meets the minimum requirements for content contained in this section; or
    (C) enforce its transfer policy and the use of the memorandum of transfer.

Source Note: The provisions of this §133.44 adopted to be effective June 21, 2007, 32 TexReg 3587