On March 9, 2020, the Centers for Medicare and Medicaid Services (CMS) issued guidance on Emergency Medical Treatment and Active Labor Act (EMTALA) requirements and implications related to COVID-19 (coronavirus).
EMTALA requires every hospital and critical access hospital with an emergency department (ED) to conduct an appropriate medical screening examination (MSE) of all individuals who come to the ED. In this guidance, CMS provides an extensive explanation of how potential COVID-19 cases should be handled under EMTALA obligations. Highlights of this guidance are summarized below.
Options for alternative screening sites
Hospitals may set up alternative screening sites on campus. The MSE requirement under EMTALA does not have to take place in the hospital’s ED, and individuals coming to the ED may be redirected to these sites after being logged in. The redirection and logging may even take place outside the entrance to the ED. Hospital employees directing patients should be qualified (e.g., a registered nurse) to recognize individuals who are obviously in need of immediate treatment in the ED. The alternative screening site on campus may be located in buildings other than the main hospital building or even in temporary structures, such as tents.
Hospitals may set up screening at off-campus, hospital-controlled sites. Hospitals and community officials are permitted to encourage the public to go to these sites instead of the hospital for COVID-19 screening. However, a hospital may not tell individuals who have already come to its ED to go to the off-site location for the MSE. Additionally, if the off-campus site is utilized, the hospital must make it clear to the public that it is a screening center for COVID-19 and not a place for general emergency care.
Obligations when COVID-19 is suspected
If during the MSE the hospital concludes that an individual who has come to its ED may be a possible COVID-19 case, consistent with accepted standards of practice for COVID-19 screening, the hospital is expected to isolate the patient immediately.
Under EMTALA obligations, the hospital is expected to be able to, within its capability, provide MSEs and initiate stabilizing treatment, while maintaining the isolation requirements for COVID-19 and coordinating with state or local public health officials, who will, in turn, arrange coordination, as necessary, with the Centers for Disease Control and Prevention (CDC). The CDC’s screening guidance should be utilized.
Transfer of COVID-19 cases
CDC guidance reiterates that EMTALA requires hospitals with capacity and the specialized capabilities needed for stabilizing treatment to accept appropriate transfers from hospitals without the necessary capabilities. How these rules will apply to COVID-19 is still somewhat unclear. However, CMS suggests that hospitals should coordinate with their state and local public health officials regarding appropriate placement of individuals who meet specified COVID-19 assessment criteria. Further, the guidance states that CMS would evaluate the capabilities and capacity of both the referring and recipient hospitals to determine whether a violation has occurred in these instances, 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 Room) would not be the sole determining factor related to transferring patients from one setting to another when in some cases all that would be required would be a private room. The guidance suggests consulting the current CDC infection prevention and control recommendations.
EMTALA Waivers
EMTALA Waivers allow hospitals to (1) direct or relocate individuals who come to the ED to an alternative off-campus site, in accordance with a state emergency or pandemic preparedness plan, for the MSE and (2) effect transfers normally prohibited under EMTALA of individuals with unstable emergency medical conditions, so long as the transfer is necessitated by the circumstances of the declared emergency. Waivers may only be issued by the Department of Health and Human Services (HHS) after the U.S. president has declared an emergency or disaster and HHS has declared a Public Health Emergency. CMS provides notice of an EMTALA waiver to covered hospitals through its Regional Offices and/or State Survey Agencies. However, CMS explains in the guidance that the requirements for EMTALA waiver have not yet been met, and no waivers have been issued as of March 9, 2020.
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