Are Hospital Obligations Under EMTALA Changed by the Coronavirus?
© 2020, ED Quality Solutions, LLC, All Rights Reserved
(See May 5, 2020 Update: EMTALA-Coronavirus-COVID-19 )
At the present time the answer is ‘no’; however, in the very near future waiver of some of the emergency department (ED) EMTALA obligations is possible. Therefore, existing EMTALA requirements are now still in place during the Coronavirus pandemic, including the requirement to screen and stabilize every individual who presents to the ED, and to accept transfers from hospitals that lack the necessary capability or capacity to stabilize patients with emergency conditions, including Covid-19.
New CMS Guidance on Coronavirus
On March 9th CMS issued guidance related to Coronavirus disease confirming and reminding hospitals of their EMTALA obligations. The CMS memo is available at https://www.cms.gov/files/document/qso-20-15-hospitalcahemtala.pdf.
ACEP created a summary of CMS’s EMTALA Coronavirus guidance which is available at https://www.acep.org/globalassets/summary-of-covid-19-emtala-guidance.pdf
Hospitals have always had a large degree of flexibility in how they screen patients presenting to the ED, and CMS specifically pointed out how hospitals can set up alternative screening sites on the hospital’s campus. For example, a hospital could set up a van or tent outside the ED and direct patients with suspected Covid-19 or respiratory infections to these locations for screening prior to or instead of entry into the main ED. This is very similar to hospitals screening pregnant women in L&D instead of in the ED. Hospitals have wide latitude on where and how they screen patients on the hospital’s campus.
There are three important caveats, however:
- The hospital may not direct patients away from the ED to an off-campus location for screening.
- Whatever screening process the hospital establishes on-campus must be based on medically indicated criteria and provided to all comers on a non-discriminatory basis.
- The hospital must still maintain a log of all patients presenting to the ED, in the same manner prescribed by CMS regulations for the ED itself.
Hospitals can set up Covid-19 screening sites at their off-campus locations. As long as those locations do not qualify as dedicated emergency departments under CMS’s EMTALA regulations, EMTALA will not apply at those locations. But again, the hospital may not tell individuals who have already come to its ED to go to such off-campus locations.
State and local governments, communities, or non-hospital providers may also set up coronavirus screening clinics at sites not under the control of a hospital, and there is no EMTALA obligation at these sites. Furthermore, area hospitals and community officials may encourage the public to go to alternative sites instead of the hospital for screening.
Waiver of EMTALA
‘Waiver’ of the EMTALA rules and regulations is rarely done and quite limited, but is a realistic possibility under § 1135 of the Social Security Act if the Coronavirus pandemic continues to expand regionally or nationally.
There are 5 legal prerequisites to a waiver of EMTALA under § 1135 of the Act;
- The President must declare an emergency or disaster under the Stafford Act or the National Emergencies Act; and
- The Secretary of HHS declares a Public Health Emergency (PHE) under § 319 of the Public Health Service Act; and
- The Secretary of HHS authorizes waivers under § 1135 of the Social Security Act and has delegated to CMS the specific authority to waive sanctions for certain EMTALA violations that arise as a result of the circumstances of the emergency; and
- The hospital in the affected area has implemented its hospital disaster protocol; and
- CMS has determined that sufficient grounds exist for waiving EMTALA sanctions with respect to a particular hospital or geographic area.
However, there are only two EMTALA provisions for which the sanctions can be waived under a § 1135 waiver.
- For an inappropriate transfer (if the transfer is necessitated by the circumstances of the declared emergency in the emergency area during the emergency period); and
- For the relocation or direction of an individual to receive medical screening in an alternate location off the hospital’s campus pursuant to an appropriate State emergency preparedness plan or State pandemic preparedness plan.
On January 31st, HHS Secretary Alex Azar declared a public health emergency for the entire United States, and on March 13th, President Trump proclaimed the Coronavirus a national emergency under the National Emergencies Act.
Additionally, the President’s proclamation granted the HHS Secretary the authority under section 1135 to temporarily waive or modify certain Medicare requirements, including EMTALA. However, the Secretary must provide a certification and at least two-day notice to Congress describing the provisions waived or modified, the geographic area to which they will apply, and the time period the changes will remain in effect. The Secretary does have the option to issue Covid-19 waivers on a ‘blanket’ basis, when a determination has been made that all similarly situated providers in an emergency area needed such a waiver. An example would be hospitals that have initiated their disaster plans to address a flood of Coronavirus patients presenting to their EDs, being granted an EMTALA waiver.
Moreover, if hospitals want to divert or redirect individuals with suspected Coronovirus to receive medical screening in an alternate location off the hospital’s campus, it must be pursuant to an appropriate State emergency preparedness plan or State pandemic preparedness plan, and the hospital must have initiated its emergency or disaster protocol. Thus, the State and the individual hospital also have a role in determining when an EMTALA waiver will be granted.
Waivers of sanctions under the EMTALA in the emergency areas generally end 72 hours after implementation of the hospital’s disaster plan. However, if the public health emergency involves a pandemic infectious disease, such as the Coronaviurs, the waiver of sanctions under EMTALA is extended until the termination of the pandemic-related public health emergency.
Additionally, the statute provides that the waiver is applicable only if the hospital’s actions do not discriminate among individuals based on their source of payment or ability to pay.
In summary, at least at the moment, the criteria for ‘waivier’ of EMTALA have not been met.
Over the weekend CMS did issue blanket waivers of some of the Medicare regulations, but did not include EMTALA. You can see what CMS did issue at this link https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf or here: COVID-19 CMS Emergency Declatation FactSheet.
There is a host of material on CMS’s various web sites regarding pandemics/public health emergencies and EMTALA. I’d recommend you start with the March 9, 2020 CMS guidance memo and the ACEP summary of that guidance as noted above. Next, review the CMS 1135 Waiver website at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/1135-Waivers. It has everything you need to understand how a section 1135 waiver could be implemented for hospitals and emergency departments to deal with the Coronavirus crisis.
For questions on Section 1135 waivers for EMTALA you can send an email to firstname.lastname@example.org. You need to include the city and state of your location so CMS can route your inquiry appropriately.
Finally, also helpful is the HHS 2018 Fact Sheet / Q&As on EMTALA and Disasters. It is available at: https://asprtracie.s3.amazonaws.com/documents/aspr-tracie-fact-sheet-emtala-and-disasters.pdf
Please contact our office if you have specific EMTALA legal questions. Our healthcare attorneys are standing by to assist you.