In response to the COVID-19 pandemic, health care providers have been faced with numerous questions about how to effectively treat patients during the pandemic while still complying will all applicable laws. As a result, the Centers for Medicare & Medicaid Services (CMS) has issued a number of different updates to its policies and practices that affect the health care provider community, including those pertaining to the Emergency Medical Treatment and Labor Act (EMTALA).

EMTALA is a federal law that requires hospitals participating in Medicare and critical access hospitals with emergency departments (ED) to provide the following, at a minimum: (i) a medical screening examination (MSE) to every individual who presents to the ED in order to determine whether the individual has an emergency medical condition (EMC) as defined by EMTALA, (ii) necessary stabilizing treatment for individuals with EMCs within the hospital’s capacity and (iii) transfers of individuals with EMCs to other hospitals, when appropriate.

March 9 Memorandum

CMS issued a memorandum (QSO-20-15 Hospital/CAH/EMTALA (Memo)) on March 9 providing specific guidance around screening, patient access and transfers during the COVID-19 pandemic.

Patient Screening

During the pandemic, hospitals may set up alternative screening sites on campus or at off-campus, hospital-controlled sites. These alternative screening locations do not need to be approved by CMS if they are already part of the certified hospital. If the hospital is adding a practice location, it must file a Form 855A with its Medicare Administrative Contractor to advise it of its action, but is not required to obtain approval from CMS in order to bill Medicare for services at the added location. Alternative screening sites may be located in other buildings on the campus of the hospital or in tents in parking lots, according to CMS, so long as they are determined to be an appropriate setting for medical screening activities and meet the clinical requirements of the individuals referred to that setting.

These alternative sites provide additional locations to conduct the MSE, and thus the MSE does not have to take place in the ED. Individuals may be redirected to these on campus alternative sites, but those hospital employees who are directing patients should be qualified (such as a registered nurse (RN)) to recognize individuals who are obviously in need of immediate treatment in the ED. Note that prior to the issuance of the EMTALA waiver, which is retroactive to March 1 and discussed in more detail below, hospitals could not direct individuals who had already come to the ED to go to the off-site location for the MSE. This limitation no longer applies given the current waiver of EMTALA requirements.

The MSE must be conducted by qualified personnel, which can include physicians, nurse practitioners, physician’s assistants or RNs trained to perform MSEs and permitted to perform such exams within their state Practice Act. The hospital must provide stabilizing treatment or appropriate transfer to individuals found to have an EMC, including moving them as needed from the alternative site to another on-campus department. Off-campus sites must be staffed with medical personnel trained to evaluate influenza-like illnesses, and if an individual needs additional attention on an emergent basis, the hospital is required to arrange the referral or transfer. The hospital should not hold the off-campus site out to the public as a place that provides care for EMCs on an urgent, unscheduled basis but rather should hold it out as a place for screening for influenza-like illnesses.

Patient Transfers

CMS states that “hospitals with capacity and the specialized capabilities needed for stabilizing treatment are still required to accept appropriate transfers from hospitals without the necessary capabilities. CMS states that hospitals should coordinate with their State/local public health officials regarding appropriate placement of individuals who meet specified COVID-19 assessment criteria, and the most current standards of practice for treating individuals with confirmed COVID-19 infection status.” Thus, if there is not a state or local public health announcement on placement for patients, all hospitals with the capability and capacity to care for patients with presumptive or confirmed COVID-19 based on current CDC guidance must be prepared to accept appropriate transfers regardless of the size of the facility. These policies have not been modified under the EMTALA waiver.

EMTALA Waiver

On March 13, following the President’s declaration of a national emergency, Secretary Alex Azar declared a public health emergency invoking the waiver authority, which includes waiver of certain EMTALA requirements. Under the EMTALA waiver, retroactive to March 1, CMS will not impose sanctions for certain violations of EMTALA. Specifically, CMS will not impose sanctions for redirection of an individual to receive an MSE in an alternative location pursuant to a state emergency preparedness plan (or a state pandemic preparedness plan) or transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared emergency. Note that any hospital actions under the waiver cannot discriminate on the basis of a patient’s source of payment or ability to pay.

Conclusion

As of the time of publication of this alert, CMS had not issued any additional guidance about the waiver which went into effect following the issuance of the March 9 Memo. However, the requirements around the response to COVID-19 are constantly changing and evolving. As more changes occur, CMS will likely continue to evaluate the situation and take further steps to help hospitals provide the best care possible for patients in these challenging times.