The COVID-19 pandemic “is a rapidly changing situation, resulting in constantly changing governmental announcements and potentially changing legal requirements,” notes Stephen A. Frew, JD. That includes the Emergency Medical Treatment and Labor Act (EMTALA).
EMTALA requirements “can pose serious obstacles to reasonable care in the event of a disaster or public health emergency, such as the current coronavirus outbreak,” says Frew, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney. At press time, “EMTALA remains in full force and effect,” Frew emphasizes.
The law does provide for emergency waivers of some EMTALA requirements in circumstances in which the federal government responds to state or national declarations of disaster or public health emergency.
“The waivers are not automatic, and may require individual hospitals to apply for waivers on a case-by-case basis,” Frew cautions. Here are some developments and what it means for EDs:
• An EMTALA guidance for hospitals was issued on March 9 by the Centers for Medicare & Medicaid Services (CMS). This guidance says hospitals could designate separate on-campus “alternate screening sites.”1
The guidance also stated that hospitals could set up off-site locations and encourage the public to use them. “But, absent the necessary HHS [Department of Health and Human Services] waiver, the hospital could not redirect patients to these off-site centers,” says Carrie Valiant, JD, an attorney with Epstein Becker Green in Washington, DC.
• In response to President Trump’s declaration of a national emergency on March 13, as well as various state declarations, HHS authorized CMS to consider several waivers of federal laws, including EMTALA.2 “Unfortunately, while the language appears broad at first glance, there is limiting language, suggesting that both CMS and the state may need to take further action to implement the waivers,” Valiant cautions.
To actually take effect, the EMTALA waiver seemingly will require CMS to make state-by-state or even hospital-by-hospital decisions. “Federal waiver letters have gone out to a number of states. But none of them include EMTALA waivers to date,” Frew notes.
• CMS issued a blanket waiver to allow moving patients offsite for screening.3 “Note that this is a very limited waiver of EMTALA. All other EMTALA requirements appear intact at this time,” Frew underscores.
The HHS waiver applies “only to the extent necessary” as determined by CMS. It applies only “pursuant to an appropriate state emergency preparedness plan.”
“It does not appear that CMS has yet determined the extent to which the EMTALA waiver is necessary on a blanket basis, or the process by which it will determine necessity,” Valiant adds. Basically, it is unclear whether individual hospitals or states must specifically request a waiver, or whether the “blanket” waiver covers them. It also is unclear whether alternate sites can be directed only by the state, pursuant to the state plan.
The lack of clarity has confused and frustrated ED providers and those advising them. “What more could possibly be needed to demonstrate need for the waiver that isn’t already apparent?” Valiant asks.
Clarifying guidance as to the meaning of the language of the waiver is critical to enable hospitals on the front lines of the pandemic to do what is necessary to treat patients while preventing further spread of the virus, Valiant says. “Faced with a clash between patient health and safety and EMTALA, hospitals generally choose patient care,” Valiant observes. “They shouldn’t have to make a choice.”
The HHS announcement indicates federal penalties may be waived for certain technical requirements of EMTALA, unless there is fraud or abuse.
It specifically states that CMS may choose not to assess penalties arising out of “the direction or relocation of an individual to another location to receive medical screening pursuant to an appropriate state emergency preparedness plan or for the transfer of 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.”2
This language would allow hospitals to activate their disaster or public health emergency plans for triage, diversion, or transfer of patients, without some of the formal EMTALA compliance activities. “The waiver does not, however, prevent CMS from initiating investigations where it appears the hospital may have violated EMTALA,” Frew says.
If someone complains a hospital is refusing infected patients, CMS could be expected to trigger an investigation in the thick of the pandemic.
The same is true if someone complains an ED is discriminating against patients on the basis of financial means or ability to pay, or if ED providers are violating the local or state pandemic regulations.
Frew says experience and CMS directives suggest investigations are unlikely during the midst of a declared emergency, without some indication that hospital practices pose a threat to life or safety of patients.
Still, none of the waivers mean ED providers can just forget about EMTALA obligations. “CMS has issued citations for violations of EMTALA in major disasters,” Frew reports.
One hospital was cited for a technical EMTALA violation in the middle of Hurricane Katrina. The hospital remained open during the storm, despite massive damage that disabled most of its capabilities. When an ambulance arrived with a nursing home patient, the triage officer reportedly waved the ambulance off and instructed it to go elsewhere, not realizing all roads out of the area were closed. The ambulance returned to the nursing home, where the patient died.
“While CMS did not investigate this case during the actual hurricane, inspectors arrived days later, shortly after roadways were opened to access the hospital,” Frew says.
In that particular case, the citation was later rescinded by congressional intervention. Nonetheless, it is a cautionary tale for hospitals. “It is advisable to follow standard EMTALA compliance policies and procedures unless that would place lives in jeopardy under the emergency circumstances,” Frew underscores.
- Centers for Medicare & Medicaid Services. Emergency Medical Treatment and Labor Act (EMTALA) requirements and implications related to coronavirus disease 2019 (COVID-19), March 9, 2020.
- U.S. Department of Health and Human Services. Waiver or modification of requirements under section 1135 of the Social Security Act, March 13, 2020.
- Centers for Medicare & Medicaid Services. COVID-19 emergency declaration blanket waivers for health care providers, March 30, 2020.