CMS Provides Guidance to Hospitals Regarding EMTALA’s Implications Related to COVID-19

By Vinnie Lichvar

On March 9, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance to the hospitals on their obligations under the Emergency Medical Treatment and Labor Act (“EMTALA”) as they relate to the COVID-19 crisis.¹ EMTALA requires all Medicare-participating hospitals with a dedicated Emergency Department (“ED”), to screen individuals who present to the ED to determine if they have an Emergency Medical Condition (“EMC”).²  In the event a patient is determined to have an EMC, EMTALA requires that the hospital provide treatment until the EMC is resolved or stabilized.  EMTALA also requires hospitals with specialized capabilities to accept transfers from hospitals who lack the capability and/or the capacity to treat EMCs.

The ongoing COVID-19 pandemic is likely to place a heavy burden on hospital EDs and potentially overwhelm many – particularly those in rural areas. Given the uncertainty surrounding a hospital’s obligation and ability to screen patients suspected of having COVID-19, as well as the likelihood that some hospitals may go on diversion due to their lack of capacity to accept transfers, CMS issued guidance to address these concerns.

First, CMS expects hospital EDs to screen all patients suspected of having COVID-19. Moreover, hospitals must immediately isolate individuals who meet the criteria for possibly having COVID-19 and contact their state or local public health officials. Hospitals should consult the Center for Disease Control’s (“CDC”) guidance for isolating patients to minimize cross-contamination of others. Hospitals must not decline to screen a patient suspected of having COVID-19, even if they do not have the appropriate personal protective equipment measures or specialized equipment. In the event a patient meets the criteria for having COVID-19, after an appropriate medical screening, but presents no signs or symptoms that would require medical attention, then the hospital has satisfied its EMTALA obligation.

Second, EMTALA has the same requirements for hospitals to provide stabilizing treatment to patients with COVID-19 symptoms that rise to the level of an EMC. That is, hospitals are required to provide necessary stabilizing treatment within the hospital’s capability and capacity. An asymptomatic patient suspected of having COVID-19 may not rise to the level of an EMC. In this circumstance, the hospital’s obligations are satisfied after providing an appropriate medical screening examination. A hospital’s obligations to accept transfers of patients under EMTALA also remains unchanged. A hospital with the capacity and the capability needed for stabilizing treatment is expected to accept the transfer of a patient suspected of having COVID-19 from a hospital without the necessary capabilities.

Third, CMS issued extensive guidance regarding EMTALA’s obligations for off-site screenings. While hospitals may set up off-site areas to screen patients suspected of having COVID-19, it is a violation of EMTALA to use signage or anything that presents a barrier to patients suspected of having COVID-19 from coming to the ED. CMS notes that screening sites, not within the ED but on the hospital campus, must comply with EMTALA and may screen patients at these locations. Patients may be redirected to these sites after presenting to the ED and being logged in by an individual qualified to recognize patients who are in obvious need of immediate treatment in the ED. In addition, hospitals may set up a log-in site outside the entrance of the ED, that redirects patients to an alternative site where screenings can take place.

A hospital may set up a hospital-controlled site off-campus and encourage the public to go to these sites to be screened for influenza-like illness. In these instances, EMTALA would not apply to an off-campus location that is not a dedicated ED of the hospital. Hospitals may not, however, tell patients who arrive at the ED to go to these off-campus locations.  Furthermore, hospitals should not hold these sites out to the public as a location that screens for general EMCs. For off-campus locations not under the control of a hospital, EMTALA’s obligations do not apply. In both of these uses of off-campus locations, hospitals are encouraged to coordinate local emergency medical services in the event a patient needs transferred. If a hospital is considering utilizing an off-site location, there are number of additional issues and concerns that must be considered. For example, depending on the location, hospitals may be required to obtain CMS’ approval or to satisfy state licensure requirements.

In light of the rapid spread of the COVID-19 virus and its increasingly onerous impact on hospitals EDs, Snell & Wilmer is keeping up to date with the latest information provided by CMS and the CDC and is committed to offering timely legal advice to help clients navigate these issues.