March 13, 2020
While virtually every aspect of life has been impacted in some way by the COVID-19 pandemic, CMS has indicated that absent a Section 1135 waiver situation, it expects full compliance with the Emergency Medical Treatment and Labor Act (EMTALA) during the health crisis. CMS has received numerous inquiries as to screening, stabilizing, and transfer as these issues specifically intersect with COVID-19. While it is a fluid situation, CMS is doing its best to provide guidance to the provider community and on March 9, 2020, issued QSO-20-15 Hospital/CAH/EMTALA. We have provided an overview of this new guidance for hospitals.
EMTALA SCREENING OBLIGATIONS
Every hospital with a dedicated emergency department (ED) is required to conduct an appropriate medical screening examination (MSE) of all individuals who come to the ED to determine if they have an emergency medical condition (EMC). Every ED is expected to have the capacity to:
• Apply appropriate COVID-19 screening criteria;
• Immediately identify and isolate individuals who meet screening criteria; and
• Contact state or local public health officials to determine next steps.
Hospitals may not refuse to allow individuals with suspected cases of COVID-19 into their ED or refuse to screen and care for suspected or confirmed COVID-19 patients due to a lack of Personal Protective Equipment (PPE) or specialized equipment/facilities. Further, the lack of Intensive Care Unit (ICU) capabilities do not exempt a hospital from performing an MSE and initiating stabilizing treatment. Hospitals are encouraged to review the CDC’s screening guidance (updated March 4, 2020).
Alternative Screening Sites
Given concerns of meeting EMTALA screening obligations while minimizing risk of exposure to others in the ED, CMS has clarified an MSE does not need to take place in the ED and hospitals may set up alternative sites on campus and at off-campus, hospital-controlled sites to perform MSEs. Additionally, communities may set up screening clinics at sites not under the control of a hospital.
It is a violation of EMTALA for hospitals to use signage that presents barriers to individuals who are suspected of having COVID-19 from coming to the ED or otherwise refuse to provide an appropriate MSE to anyone who has come to the ED for examination or treatment of a medical condition. However, signage designed to direct individuals to various locations on the hospital property would be acceptable.
Individuals may be redirected to alternative on-campus locations for MSEs after being logged in at the ED. Redirection can take place outside the entrance to the ED. The individual redirecting patients should be qualified (e.g., an RN) to recognize individuals who need immediate treatment in the ED. MSEs at an on-campus location must be conducted by qualified personnel and the hospital must provide stabilizing treatment and appropriate transfer to individuals found to have an EMC.
Hospitals have flexibility under EMTALA to determine alternative locations outside the ED but on the hospital’s campus to provide screening examinations for individuals potentially exposed to or infected with COVID-19, but the location must be part of a certified hospital. If it is not currently part of the certified hospital, the hospital must take steps to add the location as a new practice location of the hospital.
Alternative locations are expected to meet Life Safety Code (LSC) requirements although temporary examination areas can be used. Screening locations can be located in other buildings on campus or in tents in the parking lot as long as they are determined to be an appropriate setting for medical screening activities and meet the clinical requirements for the individuals who are referred to that setting. CMS has referred providers to guidance issued in 2009 during the H1N1 Influenza Pandemic discussing alternative care sites.
The MSE requirement of EMTALA requires that screening be timely depending on the presenting signs and symptoms of an individual. If an individual meets the CDC criteria for potential COVID-19 and is determined to have no signs or symptoms requiring immediate medical attention, the patient can be asked to wait in his or her car or outside of the hospital. However, the hospital should have a system in place to monitor patients who opt to wait outside to ensure their conditions do not deteriorate while awaiting further evaluation.
Off-campus, hospital-controlled sites
Hospitals and community officials may encourage the public to go to these sites instead of the hospital for screening of influenza-like illness (ILI). However, a hospital may not tell individuals who have already come to its ED to go to the off-campus site location for the MSE. Unless the off-campus site is already a dedicated ED of the hospital, EMTALA requirements do not apply at off-campus hospital-controlled sites.
The hospital should not hold the off-campus site out to the public as a place that provides screening or care for EMCs in general. Instead, it should only be held out as an ILI screening center. The off-campus site should be staffed with medical personnel trained to evaluate individuals with ILIs. If an individual needs additional medical attention on an emergent basis, the hospital would be required to arrange for referral/transfer.
Community Screening Clinic (not hospital-controlled)
A community may set up screening clinics at sites not under the control of a hospital. There is no EMTALA obligation at these sites. Hospitals and community officials may encourage the public to go to these sites instead of the hospital for screening for ILI. However, a hospital may not tell individuals who have already come to its ED to go to the off-site location for MSEs.
EMTALA STABILIZATION, TRANSFER & RECIPIENT HOSPITAL OBLIGATIONS
In the case of individuals with suspected or confirmed COVID-19 infection, hospitals are expected to consider current guidance of the CDC and public health officials in determining whether they have the capability to provide appropriate isolation required for stabilizing treatment and/or to accept appropriate transfer. In the case of EMTALA complaints alleging inappropriate transfers or refusal to accept appropriate transfers, CMS will take into account the public health guidance in effect at the time.
If a hospital concludes an individual is a suspected or confirmed COVID-19 case, the hospital is expected to isolate the patient immediately and initiate stabilizing treatment within their capability. Stabilizing treatment means to provide medical treatment of the condition necessary to assure, within reasonable medical probability, no material deterioration of the condition is likely to occur. Hospitals are expected to coordinate with their State or local public health officials who will arrange coordination, as necessary, with the CDC.
Transfer/Recipient Hospital Obligations
Hospitals with specialized capabilities are required within the limits of their capacity and capability to accept appropriate transfers of individuals protected under EMTALA from other hospitals, without regard to insurance or ability to pay. Hospitals with capacity and the specialized capabilities needed for stabilizing treatment are required to accept appropriate transfers from hospitals without the necessary capabilities. Hospitals should coordinate with their state or local public health officials regarding appropriate placement. In evaluating EMTALA obligations, CMS will take into account the CDC’s recommendations at the time of the event in assessing whether a hospital has the requisite capacity and capabilities. The presence or absence of negative pressure rooms would not be the sole determining factor related to transferring patients.
All Medicare-participating hospitals with specialized capabilities are required to accept appropriate transfers with EMCs if the hospital has the specialized capabilities an individual requires for stabilization and treatment of an EMC. This obligation applies regardless of whether the hospital has a dedicated ED. At this time, no formally designed COVID-19 treatment centers have been established and no determination has been made that speciated centers will be developed for COVID-19 cases.
Hospitals must operate under normal CMS imposed rules and regulations, unless they have been granted a Section 1135 waiver. A separate client advisory specific to Section 1135 waivers is forthcoming.
If you have any questions or need further guidance regarding EMTALA obligations in responding to COVID-19, please contact a member of Hancock Daniel’s Accreditation and Certification Surveys or Risk Management teams.
CMS issued COVID-19 FAQs on March 6, 2020 regarding Medicare payment for laboratory tests and other services related to COVID-19.
CMS issued guidance on March 4, 2020 for hospitals on screening visitors, employees, and when to admit/discharge patients. QSO-20-13-Hospitals.
CMS announced actions to address the spread of Coronavirus in a press release on March 4, 2020.
The most up-to-date guidance regarding screening, testing treatment, isolation, and other COVID-19 topics can be found on the CDC website.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.