Updated COVID-19 EMTALA Guidance for Hospitals with Dedicated Emergency Departments

CMS previously issued a notice on March 9, 2020, emphasizing a hospital’s ongoing duties to provide appropriate medical screening exams (MSE) to individuals presenting to an emergency department (ED) of a hospital pursuant to the Emergency Medical Treatment and Labor Act (EMTALA). Subsequently, on March 13, 2020, pursuant to Section 1135 of the Social Security Act (the “Act”), Alex Azar, Secretary of the Department of Health and Human Services (the “Secretary”), announced a waiver of EMTALA sanctions.  Hospitals operating under this waiver will not be sanctioned for (1) directing or relocating an individual to another location for the purpose of receiving medical screening pursuant to an appropriate State emergency or pandemic preparedness plan or (2) transferring an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared Federal public health emergency for the COVID-19 pandemic.

Further, on March 30, 2020, the Centers for Medicare and Medicaid Services (CMS) issued multiple temporary regulatory waivers and new rules that affect a large range of provider and facility types, and which included further guidance on a hospital’s EMTALA obligations. CMS reiterated that any hospital with a dedicated ED is required to conduct an appropriate MSE of all individuals who come to the ED, including individuals who are suspected of having COVID-19 under the hospital’s general EMTALA obligations.  However, CMS issued a blanket waiver allowing hospitals to redirect patients to an offsite location in order to conduct the screening, provided the screening is performed in accordance with a State emergency or pandemic preparedness plan.  The EMTALA waivers issued in connection with COVID-19 are effective until the termination of the declared public health emergency with retroactive effect dating back to March 1, 2020.

Below, we summarize in further detail key points from the EMTALA guidance issued by CMS on March 30, 2020 (and revised on April 8, 2020).

EMTALA Screening Obligations Generally During COVID-19 Pandemic

CMS has stated that every ED is expected to (1) have the capability to apply appropriate COVID-19 screening criteria when applicable;(2) immediately identify and isolate individuals who meet the screening criteria to be a potential COVID-19 patient or implement appropriate respiratory hygiene (i.e., place a mask on the patient and appropriate PPE for healthcare personnel, etc.); and (3) coordinate with its State or local public health officials, who, in turn, will arrange coordination, as necessary, with the CDC.  Hospitals with capacity and the specialized capabilities needed for stabilizing treatment are required to accept appropriate transfers from hospitals without the necessary capabilities. However, the receiving hospital may refuse the transfer if the receiving hospital does not have the capacity to provide the necessary care and services.

Also importantly, in assessing whether a hospital has the requisite capabilities and capacity for stabilizing COVID-19 patients, CMS will evaluate both the referring and recipient hospitals in order to determine whether a violation has occurred, taking into account the CDC’s recommendations at the time of the event in question. CMS notes that the presence or absence of negative pressure rooms (Airborne Infection Isolation Rooms) is not the sole determining factor related to transferring patients from one setting to another and noted that in most cases providing care to COVID-19 patients in a private room is appropriate.

It is important to note that CMS still has the authority to provide a blanket waiver for EMTALA hospitals’ transfer obligations, but has not done so yet. Accordingly, hospitals should still provide COVID-19 patients who present to the ED with stabilizing treatment and accept transfers if the hospital has appropriate isolation capabilities, and if not, provide an appropriate transfer. Hospitals should coordinate with their state and local public health officials on appropriate placement and treatment of COVID-19 patients.

Use of Offsite Locations Under Hospital Control Permitted for COVID-19 Screening

Normally, a hospital may not direct individuals who have already entered an ED to an offsite location for a MSE. However, CMS has approved that during the COVID-19 pandemic, hospitals may redirect patients to an offsite location controlled by the hospital for the purpose of conducting MSEs, provided the hospital is acting in accordance with a state emergency or pandemic preparedness plan. Importantly:

• Redirection of patients to the offsite location is a triage function and the person providing the redirection from the ED should be qualified (e.g., a Registered Nurse) to recognize individuals who are obviously in need of immediate treatment in the ED.
• Unless the off-campus site is already a dedicated ED of the hospital, as defined under the EMTALA regulations, EMTALA requirements do not apply.
• The hospital should not hold the off-campus site out to the public as a place that provides care for emergency medical conditions in general on an urgent, unscheduled basis. They can hold it out as a respiratory or potential/presumed COVID-19 patient screening center.
• The off-campus site should be staffed with medical personnel trained to evaluate individuals with respiratory or potential/presumed COVID-19 symptoms.
• If an individual needs additional medical attention on an emergent basis, the hospital is required to arrange for referral/transfer, including moving them as needed from the alternative site to another on-campus department.

Waivers Can Be Requested for Qualified Staff to Conduct MSEs

EMTALA generally requires MSEs to be conducted by Qualified Medical Personnel (QMPs), which may include physicians, nurse practitioners, physician assistants, or registered nurses trained to perform MSEs and acting within the scope of their practice under State law and in accordance with hospital bylaws.  However, hospitals may request a waiver to allow MSEs to be performed by other qualified staff authorized by the hospital, such as registered nurses, who are acting within their scope of practice and licensure, yet are not designated in the bylaws to perform MSEs for EMTALA purposes.

Use of Telehealth Technology for MSEs

Hospitals may use telehealth equipment to allow QMPs to perform MSEs.  QMPs may be on-campus (and using telehealth to self-contain) or offsite (due to staffing shortages). Either way, QMPs must perform MSEs within the scope of their state practice act, and in a manner approved by the hospital’s governing body. The use of telehealth to provide evaluation of individuals who have not physically presented to the hospital for treatment does not create an EMTALA liability.

Use of Community or Hospital Testing Stations Not Under the Control of a Hospital

Communities and hospitals may encourage members of the public to go to independent testing stations (such as a mall or retail parking lot testing sites or drive-through testing sites) instead of the hospital for a COVID-19 evaluation.  However, a hospital may not redirect individuals who have already come to its ED to the offsite location for the COVID-19 testing until the individual has been provided a MSE and determined not to have an emergency medical condition. There is no EMTALA obligation at the independent testing sites, even if hospital personnel are performing the testing. Nonetheless, communities and hospitals are encouraged to staff the sites with medical personnel trained to evaluate individuals with respiratory or potential/presumed COVID-19 symptoms, and to implement protocols to safely transport patients who arrive in medical distress and need to be admitted to the hospital (which may be as simple as calling 911).

Requirements and recommendations for COVID-19 response remains a fluid situation, and we are available to assist at each step. For additional information on the EMTALA issues addressed in this article, please contact Jenny D. Burgar.