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COVID-19: CMS Issues EMTALA Guidance

As the coronavirus pandemic has unfolded, hospitals across the country have begun asking how the Emergency Medical Treatment and Labor Act (EMTALA) will be applied to them when they are confronted with individuals coming to their dedicated emergency departments (ED) with a suspected or confirmed COVID-19 diagnosis. EMTALA is a federal law that requires hospitals participating in Medicare and that have an ED to conduct an appropriate medical screening examination (MSE) for every individual who comes to the ED, in order to determine whether the individual is experiencing an emergency medical condition (EMC). Hospitals must provide necessary stabilizing treatment for those individuals who are determined to have an EMC and/or must effectuate an appropriate transfer of such individuals.

On March 9, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a memorandum describing EMTALA’s requirements in light of COVID-19. CMS did not change any EMTALA requirements with its memorandum, but rather, it interpreted the requirements as they relate to the novel COVID-19 virus.

The CMS memorandum answers frequently asked questions (FAQs) important to hospitals’ ED operations. A number of those FAQs, and CMS’ answers are summarized below.

Frequently Asked Questions

  1. May a Medicare-participating hospital refuse to screen or treat a patient with suspected or confirmed COVID-19?

No. Refusing to conduct an appropriate MSE of individuals with suspected or confirmed COVID-19 would be considered an EMTALA violation. This is the case regardless of whether the individual arrives by ambulance or as a walk-in.

2. What are the EMTALA requirements related to screening and treating patients for COVID-19?

EMTALA requires Medicare-participating hospitals to: provide an appropriate MSE to every individual who “comes to the ED” for examination or treatment; determine whether the individual is experiencing an EMC; and, if so, provide necessary stabilizing treatment within the hospital’s capability and capacity, and/or provide for an appropriate transfer. Qualified medical personnel who conduct MSEs should be aware of the criteria for initial COVID-19 screening. CDC guidance for COVID-19 indicates that such personnel should: (1) promptly identify and triage patients with exposure history and signs and symptoms of COVID-19; (2) immediately isolate patients with relevant exposure history and signs or symptoms; (3) take steps to protect staff who treat these patients; and (4) immediately notify the hospital’s infection control program and state and local public health agencies that the hospital has identified a patient with exposure and signs or symptoms of COVID-19.

3. Are hospitals without an intensive care unit (ICU) required to screen and initiate stabilizing treatment for individuals with suspected COVID-19?

Yes. Lack of an ICU does not exempt hospitals from EMTALA obligations.

4. If a hospital remains open but is operating at or in excess of normal capacity and cannot secure sufficient staff, may it shut down its ED without violating EMTALA?

Yes. Under these circumstances, hospitals may shut down their EDs to new patients if they do not have the capacity and capability to properly screen and treat patients. However, such hospitals continue to have an EMTALA obligation to those individuals in their EDs at the time they stop accepting new patients. Also, if a patient comes to the ED despite the closure, the hospital has an EMTALA obligation to provide screening and, if necessary, stabilizing treatment for that patient, within the hospital’s capability.

Hospitals should follow state and local law notification requirements for any ED closure, and should follow their plans for public notification in the event that they go on diversionary status.

5. May hospitals set up alternative screening sites to screen possible COVID-19 patients?

Yes. Hospitals can set up alternative screening sites at other parts of the hospital, both on- and off-campus. Individuals can be directed to alternate on-campus sites for MSEs for COVID-19, but the person doing the directing should be qualified (e.g., a Registered Nurse) to recognize individuals who are in obvious need of immediate treatment in the ED. Hospitals may also encourage the public to seek screening for influenza-like illnesses at off-campus, hospital-controlled sites, but hospitals may not tell individuals who have already come to their ED to go to the off-campus locations for their MSEs. MSEs at on-campus sites must be conducted by qualified medical personnel; and stabilizing treatment or appropriate transfer must be provided to those having an EMC, including moving them to another on-campus department. Off-campus alternative sites must be staffed with medical personnel trained to evaluate influenza-like illnesses, and if an individual is determined to require additional medical attention on an emergent basis, the hospital is required to arrange referral/transfer.

Hospitals are not required to obtain CMS’s approval to use an alternative site or to submit a claim to Medicare for services rendered at the alternative site. However, hospitals should consider the requirements of any state licensure authority when considering use of an alternate site.

6. Does EMTALA require hospitals to have personal protective equipment and/or other special equipment or facilities to care for COVID-19 patients?

No. EMTALA does not include requirements for hospitals to have specific personal protective equipment, but, pursuant to the Medicare Conditions of Participation, CMS expects hospitals to adhere to infection control standards.

7. What should a hospital do if a patient who meets COVID-19 screening criteria wants to leave the hospital against medical advice?

Hospitals cannot prevent the individual from leaving. But, hospitals should coordinate with state and local authorities on the appropriate way to handle this situation, and hospitals should take all reasonable steps to secure the individual’s written informed refusal of further offered examination or treatment.

8. Under EMTALA, are hospitals required to accept transfers of patients with suspected or confirmed COVID-19 from hospitals that do not have the appropriate capability?

EMTALA requires hospitals that have the appropriate capacity and specialized capabilities to provide stabilizing treatment to accept appropriate transfers from hospitals without the necessary capabilities, including transfers of patients with suspected or confirmed COVID-19.

9.How will CMS evaluate potential EMTALA violations regarding patient transfers?

CMS will evaluate the capabilities and capacity of both the referring and recipient hospitals in order to determine whether an EMTALA violation has occurred. Among other things, CMS will take into account CDC’s recommendations at the time the event occurred when assessing hospital capacity and capabilities. (As an example, CMS indicates that the presence/absence of a negative air pressure room will not be the sole determining factor related to whether a transfer was appropriate when, in some cases, all that would be required would be a private room.)

If CMS receives a complaint about an inappropriate transfer by a referring hospital or an inappropriate refusal by a recipient hospital, CMS will consider the violation in light of the following when determining whether either hospital has violated EMTALA:

  • The patient’s clinical condition at the time he/she presented to the transferring hospital and at the time the referring hospital requested the transfer;
  • The referring hospital’s capabilities;
  • The screening and treatment activities that the referring hospital performed;
  • Whether the transfer request complied with nationally recognized guidelines regarding COVID-19 screening and assessment; and
  • The capabilities and capacity of the recipient hospital at the time of the transfer request.

Note that, on March 4, 2020, CMS issued a memorandum to state survey agencies suspending all non-emergency survey inspections.  How this will apply in the event of a complaint relating to the improper turning away of patients in violation of EMTALA (particularly possible COVID-19 patients) is unclear and may turn on a factual determination of whether a survey in response to such a complaint is deemed an emergency survey.  (Note also that “emergency” for this purpose is not limited to the COVID-19 emergency, rather CMS provided a prioritized list of survey activities that will continue, including immediate jeopardy complaints and allegations of abuse and neglect, among others).

Further, on March 13, 2020, Alex Azar, Secretary of the Department of Health and Human Services, exercised his authority under Section 1135 of the Social Security Act to waive or modify the sanctions imposed for violations of EMTALA. The waiver is retroactive to March 1, 2020.

Requirements and recommendations for COVID-19 response remains a fluid situation.  For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization

© 2020 Foley & Lardner LLP

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Alan Einhorn Attorney Foley Lardner
Of Counsel

Alan H. Einhorn is of counsel and a health care business lawyer with Foley & Lardner LLP. Alan represents provider networks, hospitals, clinics, practice groups and individuals in entity formation, corporate reorganization, joint ventures, consolidations, physician/hospital integration strategies, medical staff development and governance, disciplinary matters, and licensure. He also regularly advises clients on strategic, corporate compliance and tax exemption–related issues as well as regulatory issues. Alan is a member of the Health Care Industry and Health...

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Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies, durable medical equipment suppliers, pharmaceutical companies, health care IT companies, health care industry vendors, investors, entrepreneurs, and startup businesses. She also focuses on matters involving telemedicine, digital health, remote patient monitoring, and virtual care.

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Olivia King is an associate with Foley & Lardner LLP and a member of the firm’s Health Care Industry Team.

Olivia was selected for the inaugural Mayo-Foley Health Law Fellowship, consisting of summer internships with the Mayo Clinic Legal Department in Rochester, Minnesota (2017), and Foley (2018).While at the Mayo Clinic, Olivia researched and prepared memorandum on state and federal medical prescribing and licensure requirements with analysis of potential implications on telemedicine initiatives and state mental health ombudsman reporting...

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