CMS Issues New FAQs Clarifying EMTALA Obligations During COVID-19

Morgan Lewis - Health Law Scan
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Morgan Lewis - Health Law Scan

CMS recently issued Frequently Asked Questions (FAQs) clarifying requirements and considerations for hospitals and other providers related to the Emergency Medical Treatment and Labor Act (EMTALA) during the coronavirus (COVID-19) pandemic. The FAQs address questions concerning patient presentation to the emergency department, EMTALA applicability across facility types, qualified medical professionals, medical screening exams, patient transfer and stabilization, and telehealth issues.

A majority of the FAQs concern questions about the potential need to refer patients who present to an emergency department to an offsite COVID-19 screening site. The scenarios presented are largely permutations of issues arising with regard to COVID-19 symptoms, testing, and management of bed capacity.

Referencing that CMS has approved a Section 1135 waiver allowing hospitals to redirect patients to an offsite location for medical screening evaluations during the COVID-19 public health emergency, the FAQs make clear that the base EMTALA requirement to provide a medical screening evaluation has not been waived. CMS emphasizes that it would continue to be a violation of EMTALA should a hospital or critical access hospital erect a barrier, including signage, that may impede a patient’s ability to obtain emergency treatment.

Hospitals may encourage the public to go to off-campus sites for COVID-19 screening, rather than the hospital emergency department, as long as those sites operate in accordance with the local pandemic plan. This can include referrals to urgent care centers, which, CMS reminds, do not have EMTALA obligations. Based on the tenor of the FAQs, the questions concerning urgent care centers appear to be timely as they are expected to have the ability to test for COVID-19 in the coming weeks. The FAQs further specify that multiple hospitals with different Medicare numbers can join together to establish an offsite location to test patients, and medical screening evaluations may be conducted by telehealth as long as they meet certain requirements.

The FAQs repeatedly make the distinction between a person coming to the hospital to obtain a COVID-19 test alone, versus an individual presenting to the hospital to request treatment for a medical condition. The evaluation of this difference when determining a hospital’s obligations as to the request for COVID-19 testing and the ability to refer to another location is a critical distinction when determining whether there is an obligation to perform a medical screening examination before transfer and properly evaluating the use of offsite locations for testing. A hospital may not ignore its obligations to provide a medical screening examination, but can redirect patients presenting to the emergency department to an off-campus site where the medical screening examination will be completed.

The FAQs also detail supervision of medical residents virtually by teaching physicians using telehealth, and new guidance concerning proper codes that emergency physicians should use if they wish to perform telehealth services from the emergency department. The FAQs further note that CMS has waived the licensure requirements that allow an out-of-state emergency physician to provide telehealth to beneficiaries in a different state, assuming the physician has valid license in another state.

The Section 1135 waivers will end no later than the termination of the COVID-19 public health emergency date, or 60 days from the date the waiver was first published. The US Department of Health and Human Services can extend the Section 1135 waiver for additional periods of up to 60 days, through the end of the public health emergency period.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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