DEPARTMENT OF HEALTH

[Filed May 12, 2025, 8:42 a.m., effective May 12, 2025, 8:42 a.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: Emergency Medical Treatment and Active Labor Act (EMTALA) for hospitals. Complementing recently enacted legislation, the department of health (department) is continuing emergency rules to ensure that state law protects access to treatment, including abortion care, for emergency medical conditions in hospital emergency departments. These requirements are subject to applicable protections of conscience and the free exercise of religion under state and federal law.

This rule continues the provision of emergency rules initially adopted by the department on January 13, 2025, under WSR 25-03-056, that incorporated EMTALA into state law, with modifications. This rule rescinds other provisions of the previously adopted emergency rule because substantively identical provisions were codified in the recently enacted ESSB 5557 (chapter 182, Laws of 2025), and thus need not be codified in emergency rules. These provisions include those revising the definition of "emergency medical condition" in RCW 70.41.020, imposing requirements related to hospital transfers, and imposing requirements related to emergency medical care for pregnant persons.

The emergency rules will continue while permanent rule making is in progress. The department is in the process of filing a preproposal statement of inquiry for permanent rule making in coordination with this emergency rule filing.

Citation of Rules Affected by this Order: Amending WAC 246-320-281.

Statutory Authority for Adoption: RCW 70.41.030.

Other Authority: RCW 70.170.060.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: Continued adoption of these rules, as amended, is necessary to protect against the harms to public health, safety, and welfare that, absent independent state-law protections, would result from potentially imminent changes to Centers for Medicare and Medicaid Services enforcement priorities and resourcing related to federal enforcement of EMTALA. Other imminent changes could include those to federal policy that the federal government would seek to enforce to restrict hospitals' obligation and ability to provide abortion care as treatment for emergency medical conditions consistent with the standard of care and the patient's informed consent, and to provide treatment that prioritizes a pregnant person's health and safety according to their informed consent. Absent this emergency rule making, these potential federal changes will directly threaten the health, safety, and welfare of Washington patients, including pregnant persons, in need of emergency care, and the delay caused by observing the time requirements of notice and opportunity to comment upon the adoption of a permanent rule would exacerbate that harm and would be contrary to the public interest.

Continuation of the emergency rule maintains the incorporation of EMTALA protections, or any other law that provides greater access to care to ensure protections, remain in place while permanent rule making is in progress.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

Date Adopted: May 12, 2025.

Kristin Peterson, JD

for Jessica Todorovich, MS

Acting Secretary of Health

AMENDATORY SECTION(Amending WSR 09-07-050, filed 3/11/09, effective 4/11/09)

WAC 246-320-281Emergency services.

The purpose of this section is to guide the management and care of patients receiving emergency services. Hospitals are not required to provide these services in order to be licensed.

If providing emergency services, hospitals must:

(1) Adopt and implement policies and procedures, consistent with RCW 70.170.060, for every patient presenting to the emergency department with an emergency medical condition to include:

Transfer of a patient with an emergency medical condition or who is in active labor based on:

(a) Patient request;

(b) Inability to treat the patient due to facility capability;

(d) The ability of the receiving hospital to accept and care for the patient;

(2) Maintain the capacity to perform emergency triage and medical screening exam ((twenty-four))24 hours per day;

(3) Define the qualifications and oversight of staff delivering emergency care services;

(4) Use hospital policies and procedures which define standards of care;

(5) Assure at least one registered nurse skilled and trained in emergency care services on duty and in the hospital at all times, who is:

(a) Immediately available to provide care; and

(b) Trained and current in advanced cardiac life support;

(6) Post names and telephone numbers of medical and other staff on call;

(7) Assure communication with agencies and health care providers as indicated by patient condition; ((and))

(8) Assure emergency equipment, supplies, and services necessary to meet the needs of presenting patients are immediately available;

(9) Comply with 42 U.S.C. Sec. 1395dd and its implementing regulations, provided that, for purposes of this subsection, "emergency medical condition" shall have the meaning provided in RCW 70.41.020, as amended by section 4, chapter 182, Laws of 2025 and "unborn child" shall mean "embryo or fetus" where those terms are used in 42 U.S.C. Sec. 1395dd and its implementing regulations. Hospitals must comply with any requirements of this chapter or any other law that provide greater access to care or are otherwise more favorable to patients than the requirements of 42 U.S.C. Sec. 1395dd and its implementing regulations.