EXECUTIVE SUMMARY

The Centers for Medicare & Medicaid Services issued waivers for some Emergency Medical Treatment & Labor Act (EMTALA) requirements, acknowledging certain expectations are not reasonable to achieve during a pandemic. However, EMTALA still applies.

  • Hospitals can separate screening sites for COVID-19 patients.
  • Self-isolation in patient cars is acceptable.
  • Lack of personal protective equipment does not obviate the need for assessment.

The Centers for Medicare & Medicaid Services (CMS) Hospitals Without Walls initiative uses section 1135 of the Social Security Act to create waivers for the Emergency Medical Treatment & Labor Act (EMTLA) to address the pandemic.

CMS waived enforcement of some sections of EMTALA to permit hospitals, psychiatric hospitals, and critical access hospitals to perform medical screening exams at offsite locations to reduce contagion and cope with a surge in patient volume. The offsite screening must be consistent with the state emergency preparedness or pandemic plan.

The waiver and previous CMS announcements provide hospitals more flexibility and acknowledge that some typical EMTALA requirements are difficult to achieve during the pandemic response, explains Shanti M. Katona, JD, shareholder with Polsinelli in Wilmington, NC.

The waiver of EMTALA sanctions only is applicable to actions that do not discriminate based on a patient’s source of payment or ability to pay, CMS stated. The waiver also is effective while the COVID-19 declaration of emergency is in effect. (More explanation of the waivers is available online at: https://www.phe.gov/Preparedness/legal/Pages/1135-waivers.aspx.)

“The waivers do not mean that EMTALA no longer applies. They are simply saying that they understand resources and staff are potentially going to be very stressed, and they don’t want you to be motivated by sanctions that can be very severe,” Katona says. “They allow you to direct patients with flu symptoms to another site where they will be examined, or you can create another area at your facility, such as something attached to your ED but a separate space for COVID-19 screening.”

Isolate in Cars

CMS also noted that it is permissible for patients to self-isolate in their own vehicles to avoid waiting in a crowded area, as long as that is acceptable to the patient, she explains.

“You have to stay in contact with them so that if they have symptoms that require immediate care you can act on that,” Katona says. “That is a really interesting option that we haven’t seen before.”

Isolation of suspected COVID-19 patients, whether in a separate tent or in their own cars, will require more attention to monitoring and communication, Katona says.

“As EDs [emergency departments] get filled up and you have lots of people waiting in their cars or in your designated area, it’s going to be difficult to maintain contact with them all,” she explains. “Someone may have been waiting in their car for a couple hours and the cough is getting worse, but that is going to be hard to evaluate if they are not within your line of sight. If you are going to use these available avenues of isolation, you have to find ways to stay in touch through texting or telehealth, some way to treat them if they take a bad turn, because you have initiated the screening and they are under your care at that moment.”

CMS also will overlook transfers of patients who have not been stabilized. EMTALA generally requires that a patient be stabilized before transfer but is recognizing that overstressed EDs may not always be able to meet that requirement, Katona notes.

“If they determine that they need to transfer an individual before stabilizing, based on a realistic view of capacity, staffing, and other factors, the violation will be waived,” she says. “CMS is acknowledging the fact that some hospitals may not be able to meet this standard when they are struggling to treat an influx of patients, and they don’t want the caregivers to be distracted by the idea of EMTALA sanctions when they need to be providing care.”

Protective Equipment Shortage No Excuse

CMS also addressed the use of personal protective equipment and the shortage at some hospitals. A shortage of masks, gowns, gloves, or other equipment is not an acceptable reason for declining a transfer or for not providing proper assessment, CMS stated.

“I know that’s heartbreaking because we want all our frontliners protected as much as possible, but CMS says you can’t use that as the reason for not providing care in the ED as required by EMTALA,” she says.

SOURCE

  • Shanti M. Katona, JD, Shareholder, Polsinelli, Wilmington, NC. Phone: (302) 252-0924. Email: skatona@polsinelli.com.