Despite authority from the Secretary of Health and Human Services (“HHS”) to issue a blanket waiver of sanctions under the Emergency Medical Treatment and Labor Act (“EMTALA”), as of the time of this posting, CMS has not done so.  As a result, unless a hospital has sought and received an individual waiver, the hospital continues to be bound by EMTALA and the guidance issued by CMS on March 9, 2020 to assist hospitals in maintaining compliance with EMTALA while navigating the COVID-19 pandemic.  Below is additional detail regarding the HHS waiver authority granted to CMS and the CMS March 9, 202 EMTALA guidance.  We are closely monitoring the enforcement status of EMTALA, including discussions with representatives from various state agencies, and will provide updates as quickly as possible.

On March 13, 2020, the Secretary of Health and Human Services (“HHS”) exercised its authority under Section 1135(b) of the Social Security Act to, among others, waive sanctions under the Emergency Medical Treatment and Labor Act (“EMTALA”).  To the extent necessary, as determined by the Centers for Medicare & Medicaid Services (“CMS”), the waiver would allow hospitals to direct or relocate individuals to another location to receive a medical screening examination (“MSE”), pursuant to the hospital’s appropriate state emergency preparedness plan. The waiver would also permit hospitals to effectuate transfers normally prohibited under EMTALA of individuals with unstable emergency medical conditions (“EMC”), so long as the transfer is necessitated by the circumstances of the declared emergency resulting from the COVID-19 pandemic.

Importantly, the waiver issued by HHS is applicable to hospitals only “to the extent” permitted by CMS.  As of March 21, 2020, CMS has not exercised its authority to issue an EMTALA waiver applicable to all hospitals.  Accordingly, hospitals with a dedicated emergency department (“ED”) that are subject to EMTALA should continue its operations in full compliance with EMTALA requirements until CMS has exercised its authority to issue an EMTALA waiver.

CMS has provided the following guidance to assist hospitals in maintaining compliance with EMTALA while navigating the COVID-19 pandemic:

• On-Campus Screening Sites:
  • Hospitals may set up alternative screening sites “on-campus” rather than the ED.
  • Patients must be appropriately logged-in at the ED before the patient may be re-directed to the separate on-campus location.
  • The initial patient logging and re-direction can take place outside of the entrance of the ED.
  • The person re-directing the patient to a separate MSE location must be qualified to recognize individuals who are obviously in need of immediate treatment in the ED (e.g., a registered nurse).
  • The MSE must be conducted by qualified personnel, acting within their respective scope of practice.
  • The hospital must provide stabilizing treatment (or appropriate transfer) to individuals found to have an EMC, including moving them as needed from the alternative site to another on-campus department.
• Off-Campus, Hospital-Enrolled Screening Sites:
  • Hospitals and community officials may encourage the public to go to “off-campus” sites instead of the hospital ED for screening for influenza-like illness “(ILI”). However, a hospital may not tell individuals who have already presented to its ED to go to an off-site location for the MSE.
  • The hospital should not hold the off-campus site out to the public as a place that provides care for emergency medical conditions in general, on an urgent, unscheduled basis. They can hold it 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 is required, under the Medicare Conditions of Participation, to arrange a referral/transfer. Prior coordination with local emergency medical services is advised to develop transport arrangements.
  • Unless the off-campus site is already an ED of the hospital, EMTALA requirements do not apply.
• Off-Campus Community Sites:
  • Hospitals and community officials may encourage the public to go to alternative sites set up by the community for screening for ILI. However, a hospital may not tell individuals who have already presented to its ED to go to the off-site location for the MSE.
• Signage:
  • CMS emphasizes that it is a violation of EMTALA for hospitals with EDs to use signage that presents a barrier to individuals who are suspected of having COVID-19 from coming to the ED for a MSE or treatment.
  • The use of signage designed to help direct individuals to various on-campus alternative locations for their MSE is permissible.