EMTALA Waivers During the COVID-19 Pandemic

Firm Publication

Please note that we have updated this alert with information regarding the blanket waiver of enforcement of section 1867(a) of the Act along with the revised March 2020 CMS EMTALA guidance.

Following President Trump’s proclamation on March 13, 2020, that the COVID-19 pandemic in the United States constitutes a national emergency, the Department of Health and Human Services (HHS) issued a Waiver or Modification of Requirements under Section 1135 of the Social Security Act that includes a waiver of certain Emergency Medical Treatment and Labor Act (EMTALA) sanctions that is limited in scope. Further, on March 9, 2020, the Centers for Medicare & Medicaid Services (CMS) issued guidance to State Survey Agency Directors regarding EMTALA requirements and implications related to COVID-19 to ensure compliance with all non-waived EMTALA obligations.

The EMTALA Waiver

The EMTALA waiver provides Medicare-participating hospitals (including critical access hospitals) with dedicated emergency departments (EDs) greater flexibility to combat and contain the spread of COVID-19. Hospitals operating under an EMTALA waiver will not be sanctioned (1) for the direction or relocation of an individual to another location to receive medical screening pursuant to an appropriate state emergency preparedness plan or (2) for the transfer of an individual who has not been stabilized if the transfer is necessary due to the declared COVID-19 federal public health emergency.

The EMTALA waiver applies to a hospital if all the following conditions are met:

  • The hospital must not discriminate based on an individual’s source of payment or ability to pay;
  • The hospital must activate its disaster protocol; and
  • The state must have activated an emergency preparedness plan or pandemic preparedness plan in the emergency area, and any redirection of individuals for a medical screening examination (MSE) must be consistent with its plan.

The EMTALA waiver became effective at 6:00 p.m. Eastern Standard Time on March 15, 2020, but is retroactive to March 1, 2020.  It applies nationwide. It will continue in effect until the Secretary terminates the declaration of a public health emergency.

The EMTALA waiver does not apply to hospital obligations under state law. Accordingly, hospitals must ensure that their actions are consistent with applicable state law and regulation.

In light of the limited scope of the EMTALA waiver and the potential surge in individuals with suspected or confirmed COVID-19, additional waivers may be needed for hospitals to better manage patient care. For example, in a March 16, 2020 letter, the American Hospital Association (AHA) asked HHS to consider an additional EMTALA waiver that would permit qualified staff authorized by the hospital and acting within their state scope of practice and licensure to conduct MSEs, even when the staff are not formally designated to perform MSEs in the hospital by-laws or rules and regulations.

CMS EMTALA Guidance

The March 2020 CMS EMTALA guidance offers several guidelines to help hospitals screen and treat individuals with possible COVID-19 symptoms, including highlighting methods that do not require an EMTALA waiver:

  • Screening, Isolating and Stabilizing Individuals with Possible COVID-19. CMS emphasizes that EMTALA requirements for hospitals are the same for individuals with possible COVID-19 symptoms as all other possible emergency medical conditions (EMCs). CMS states that 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 to otherwise refuse to provide an appropriate MSE to anyone who has come to the ED for examination or treatment of a medical condition. CMS notes that the hospital qualified medical personnel that conduct the MSE should be aware of the criteria for initial COVID-19 screening and should apply such screening when appropriate.
        
    Even if a hospital is operating under an EMTALA waiver, CMS still expects that individuals who come to the ED will receive an appropriate MSE, although it may be conducted at an alternate care site.For any individual with suspected COVID-19 symptoms, CMS recommends hospitals isolate the individual immediately in accordance with the Centers for Disease Control and Prevention (CDC) guidance for appropriate isolation procedures to minimize the risk of cross-contamination to other patients, visitors, and healthcare workers. Further, consistent with EMTALA, hospitals must initiate stabilizing treatment for individuals with suspected or confirmed COVID-19 within their capability and capacity and provide for appropriate transfers if they cannot stabilize them. CMS advises hospitals to consult the current CDC guidelines and coordinate with their state and local public health authorities for guidance related to ongoing care and treatment of patients with COVID-19.
  • On-Campus Alternative Screening Sites. CMS allows hospitals to set up alternative sites on their campuses to perform MSEs. The location must be part of the certified hospital; otherwise, the hospital must take steps to add the location as a new practice location of the hospital. CMS notes that individuals may be redirected to these sites after being logged in. The redirection and logging can even take place outside the entrance to the ED. CMS recommends that the person doing the redirecting should be qualified to recognize individuals who need immediate medical treatment (e.g., a registered nurse). CMS reminds hospitals to provide stabilizing treatment (or appropriate transfer) to individuals found to have an EMC, including moving the individuals as needed from the alternative site to another on-campus department.
  • Off-Campus, Hospital-Controlled Screening Sites. According to CMS, hospitals may encourage the public to go to off-campus, hospital-controlled sites instead of the hospital for influenza-like illness (ILI) screening for COVID-19, and EMTALA requirements would not apply as long as these sites are not themselves dedicated EDs of the hospitals. However, unless an EMTALA waiver applies, hospitals may not tell individuals who have already come to their EDs to go to the off-site location for the MSE. CMS recommends that medical personnel trained to evaluate individuals with ILIs should staff these off-campus sites. Under the Medicare Conditions of Participation, if an individual needs additional medical attention on an emergent basis, hospitals are required to arrange referral or transfer.
  • Asking Patients to Wait in their Vehicle or Outside of the Hospital. CMS also advises that hospitals may ask patients to wait in their vehicle or outside of the hospital without violating EMTALA if the individual, after an appropriate MSE, meets the CDC criteria for potential COVID-19 and is determined to have no signs or symptoms that require immediate medical attention. However, hospitals must implement a system to monitor those patients who opt to wait in their vehicle to ensure that their condition has not deteriorated while awaiting further evaluation.
  • Recipient Hospital’s Obligation to Accept EMTALA Transfers. CMS reminds that all Medicare-participating hospitals with capacity and the specialized capabilities needed for stabilizing treatment of COVID-19 patients must accept appropriate transfers from hospitals without the necessary capabilities.
  • Personal Protective Equipment and Other Equipment or Facilities. According to CMS, there are no EMTALA requirements for hospitals to have specific personal protective equipment or other equipment or facilities. However, consistent with their obligations under the Medicare Conditions of Participation, hospitals are expected to adhere to accepted standards of infection control practice to prevent the spread of COVID-19. CMS emphasizes that hospitals may not decline to perform an MSE on an individual who comes to their ED with potential or suspected COVID-19 due to a lack of personal protective equipment or specialized equipment or facilities.

Interested parties should review the March 2020 CMS EMTALA guidance in its entirety as it addresses other important issues related to the screening and treatment of individuals with possible COVID-19.

Updated April 3, 2020

Following the Secretary’s waiver authorization under Section 1135 of the Social Security Act, on March 30, CMS announced a blanket waiver of enforcement of section 1867(a) of the Act regarding the medical screening requirement and issued revised March 2020 CMS EMTALA guidance to give hospitals more flexibility to address the COVID-19 pandemic.

Blanket Waiver of Enforcement of Section 1867(a) of the Act

CMS states that it is waiving the enforcement of section 1867(a) of the Act to allow hospitals, psychiatric hospitals, and critical access hospitals to screen patients at a location off-site from the hospital’s campus to prevent the spread of COVID-19, so long as it is not inconsistent with a state’s emergency preparedness or pandemic plan.  This blanket waiver has a retroactive effective date of March 1, and remains in effect through the end of the emergency declaration.  CMS expressly states that the blanket waiver does not require a request to be sent to 1135waiver@cms.hhs.gov mailbox or that notification be made to any of CMS’s regional offices.

In the revised March 2020 CMS EMTALA guidance, CMS reminds that a waiver of EMTALA sanctions is effective only if actions under the waiver do not discriminate as to the source of payment or ability to pay.

Further, CMS states that the approved blanket waiver does not apply to the transfer of an individual who has not been stabilized if the transfer arises out of an emergency.  As of the date of this update, CMS has not issued a blanket waiver regarding hospitals’ transfer obligations.

Revised March 2020 CMS EMTALA Guidance

CMS clarifies and adds the following noteworthy guidance:

  • On-Campus Alternate Screening Sites. CMS clarifies that whether the individual is seen at the alternate on-campus site or in the ED, they should be logged in where they are seen.  According to CMS, individuals do not need to present to the ED first, and if they do present to the ED, they may still be redirected to the on-campus alternative screen location for logging and subsequent screening.  This is a triage function, and the person that provides the redirection from the ED should be qualified (e.g., a registered nurse) to recognize individuals who are obviously in need of immediate treatment in the ED.  CMS adds that hospital non-clinical staff at other entrances to the hospital may provide redirection to the on-campus alternative screening location for individuals seeking COVID-19 testing.
  • Drive Through Testing Sites. According to CMS, drive through testing sites that have been established for COVID-19 testing alone, including on a hospital campus, do not have EMTALA implications.  However, CMS cautions that EMTALA would still apply if a patient who was seeking only COVID-19 testing requested emergency medical treatment while on the hospital campus.
  • Off-Campus, Hospital-Controlled Screening Sites. CMS reminds that it has approved via 1135 waiver for COVID-19 pandemic the ability to re-direct patients to an off-site location for screening in accordance with a state emergency preparedness or pandemic plan.  CMS adds that hospitals can hold the site out as a respiratory or potential/presumed COVID-19 patient screening center.
  • Testing Station at Sites Not under Hospital Control (e.g., Mall or Retail Parking Lot). According to CMS, there is no EMTALA obligation at these sites, even if hospital personnel assist with the testing.  While hospitals may encourage the public to go to these sites instead of the hospital for COVID-19 testing, CMS reiterates that hospitals may not tell individuals who have already come to their ED to go to the off-site location for the COVID-19 testing until they have been provided an MSE and determined not to have an EMC.  CMS adds that these sites should be staffed with medical personnel trained to evaluate individuals with respiratory or potential/presumed COVID-19 symptoms.  Further, there should be protocols or a process in place to address patients who arrive in medical distress and need transport to a hospital (e.g., calling 911).
  • Acceptable Signage. CMS states that it is acceptable for a hospital to post signage informing individuals who are seeking COVID-19 testing about alternative community locations (non-hospital controlled sites) for COVID-19 testing but do not want an MSE or think they have an EMC.
  •  Use of Telehealth. CMS adds that hospitals may use telehealth equipment to perform the MSE by qualified medical personnel (QMP).  The QMP may be on-campus (and using telehealth to self-contain) or off-site (due to staffing shortages).  In either instance, the QMP must be performing within the scope of their state practice act and approved by the hospital’s governing body to perform MSEs.  According to CMS, the use of telehealth to evaluate individuals who have not physically presented to the hospital for treatment does not create an EMTALA liability.
  • Waiver for Qualified Medical Staff to Perform MSEs. CMS explains that hospitals may request a waiver to allow MSEs to be performed by qualified medical staff authorized by the hospital, such as registered nurses, who are acting within their scope of practice and licensure, yet are not designated in the bylaws to perform MSEs.
  • Appropriate EMTALA Transfers. CMS adds that if specially designated COVID-19 treatment facilities are implemented as part of a local, state, or national pandemic plan, the transfer of patients under these plans would comply with EMTALA.

As the COVID-19 pandemic evolves, hospitals should monitor for any additional guidance from CMS to ensure compliance with EMTALA requirements.

If you have any questions about EMTALA waivers and guidance in the context of the COVID-19 pandemic, please contact the authors of this alert.

Related Professionals
Related Services
Firm Publication

Please note that we have updated this alert with information regarding the blanket waiver of enforcement of section 1867(a) of the Act along with the revised March 2020 CMS EMTALA guidance.

Following President Trump’s proclamation on March 13, 2020, that the COVID-19 pandemic in the United States constitutes a national emergency, the Department of Health and Human Services (HHS) issued a Waiver or Modification of Requirements under Section 1135 of the Social Security Act that includes a waiver of certain Emergency Medical Treatment and Labor Act (EMTALA) sanctions that is limited in scope. Further, on March 9, 2020, the Centers for Medicare & Medicaid Services (CMS) issued guidance to State Survey Agency Directors regarding EMTALA requirements and implications related to COVID-19 to ensure compliance with all non-waived EMTALA obligations.

The EMTALA Waiver

The EMTALA waiver provides Medicare-participating hospitals (including critical access hospitals) with dedicated emergency departments (EDs) greater flexibility to combat and contain the spread of COVID-19. Hospitals operating under an EMTALA waiver will not be sanctioned (1) for the direction or relocation of an individual to another location to receive medical screening pursuant to an appropriate state emergency preparedness plan or (2) for the transfer of an individual who has not been stabilized if the transfer is necessary due to the declared COVID-19 federal public health emergency.

The EMTALA waiver applies to a hospital if all the following conditions are met:

  • The hospital must not discriminate based on an individual’s source of payment or ability to pay;
  • The hospital must activate its disaster protocol; and
  • The state must have activated an emergency preparedness plan or pandemic preparedness plan in the emergency area, and any redirection of individuals for a medical screening examination (MSE) must be consistent with its plan.

The EMTALA waiver became effective at 6:00 p.m. Eastern Standard Time on March 15, 2020, but is retroactive to March 1, 2020.  It applies nationwide. It will continue in effect until the Secretary terminates the declaration of a public health emergency.

The EMTALA waiver does not apply to hospital obligations under state law. Accordingly, hospitals must ensure that their actions are consistent with applicable state law and regulation.

In light of the limited scope of the EMTALA waiver and the potential surge in individuals with suspected or confirmed COVID-19, additional waivers may be needed for hospitals to better manage patient care. For example, in a March 16, 2020 letter, the American Hospital Association (AHA) asked HHS to consider an additional EMTALA waiver that would permit qualified staff authorized by the hospital and acting within their state scope of practice and licensure to conduct MSEs, even when the staff are not formally designated to perform MSEs in the hospital by-laws or rules and regulations.

CMS EMTALA Guidance

The March 2020 CMS EMTALA guidance offers several guidelines to help hospitals screen and treat individuals with possible COVID-19 symptoms, including highlighting methods that do not require an EMTALA waiver:

  • Screening, Isolating and Stabilizing Individuals with Possible COVID-19. CMS emphasizes that EMTALA requirements for hospitals are the same for individuals with possible COVID-19 symptoms as all other possible emergency medical conditions (EMCs). CMS states that 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 to otherwise refuse to provide an appropriate MSE to anyone who has come to the ED for examination or treatment of a medical condition. CMS notes that the hospital qualified medical personnel that conduct the MSE should be aware of the criteria for initial COVID-19 screening and should apply such screening when appropriate.
        
    Even if a hospital is operating under an EMTALA waiver, CMS still expects that individuals who come to the ED will receive an appropriate MSE, although it may be conducted at an alternate care site.For any individual with suspected COVID-19 symptoms, CMS recommends hospitals isolate the individual immediately in accordance with the Centers for Disease Control and Prevention (CDC) guidance for appropriate isolation procedures to minimize the risk of cross-contamination to other patients, visitors, and healthcare workers. Further, consistent with EMTALA, hospitals must initiate stabilizing treatment for individuals with suspected or confirmed COVID-19 within their capability and capacity and provide for appropriate transfers if they cannot stabilize them. CMS advises hospitals to consult the current CDC guidelines and coordinate with their state and local public health authorities for guidance related to ongoing care and treatment of patients with COVID-19.
  • On-Campus Alternative Screening Sites. CMS allows hospitals to set up alternative sites on their campuses to perform MSEs. The location must be part of the certified hospital; otherwise, the hospital must take steps to add the location as a new practice location of the hospital. CMS notes that individuals may be redirected to these sites after being logged in. The redirection and logging can even take place outside the entrance to the ED. CMS recommends that the person doing the redirecting should be qualified to recognize individuals who need immediate medical treatment (e.g., a registered nurse). CMS reminds hospitals to provide stabilizing treatment (or appropriate transfer) to individuals found to have an EMC, including moving the individuals as needed from the alternative site to another on-campus department.
  • Off-Campus, Hospital-Controlled Screening Sites. According to CMS, hospitals may encourage the public to go to off-campus, hospital-controlled sites instead of the hospital for influenza-like illness (ILI) screening for COVID-19, and EMTALA requirements would not apply as long as these sites are not themselves dedicated EDs of the hospitals. However, unless an EMTALA waiver applies, hospitals may not tell individuals who have already come to their EDs to go to the off-site location for the MSE. CMS recommends that medical personnel trained to evaluate individuals with ILIs should staff these off-campus sites. Under the Medicare Conditions of Participation, if an individual needs additional medical attention on an emergent basis, hospitals are required to arrange referral or transfer.
  • Asking Patients to Wait in their Vehicle or Outside of the Hospital. CMS also advises that hospitals may ask patients to wait in their vehicle or outside of the hospital without violating EMTALA if the individual, after an appropriate MSE, meets the CDC criteria for potential COVID-19 and is determined to have no signs or symptoms that require immediate medical attention. However, hospitals must implement a system to monitor those patients who opt to wait in their vehicle to ensure that their condition has not deteriorated while awaiting further evaluation.
  • Recipient Hospital’s Obligation to Accept EMTALA Transfers. CMS reminds that all Medicare-participating hospitals with capacity and the specialized capabilities needed for stabilizing treatment of COVID-19 patients must accept appropriate transfers from hospitals without the necessary capabilities.
  • Personal Protective Equipment and Other Equipment or Facilities. According to CMS, there are no EMTALA requirements for hospitals to have specific personal protective equipment or other equipment or facilities. However, consistent with their obligations under the Medicare Conditions of Participation, hospitals are expected to adhere to accepted standards of infection control practice to prevent the spread of COVID-19. CMS emphasizes that hospitals may not decline to perform an MSE on an individual who comes to their ED with potential or suspected COVID-19 due to a lack of personal protective equipment or specialized equipment or facilities.

Interested parties should review the March 2020 CMS EMTALA guidance in its entirety as it addresses other important issues related to the screening and treatment of individuals with possible COVID-19.

Updated April 3, 2020

Following the Secretary’s waiver authorization under Section 1135 of the Social Security Act, on March 30, CMS announced a blanket waiver of enforcement of section 1867(a) of the Act regarding the medical screening requirement and issued revised March 2020 CMS EMTALA guidance to give hospitals more flexibility to address the COVID-19 pandemic.

Blanket Waiver of Enforcement of Section 1867(a) of the Act

CMS states that it is waiving the enforcement of section 1867(a) of the Act to allow hospitals, psychiatric hospitals, and critical access hospitals to screen patients at a location off-site from the hospital’s campus to prevent the spread of COVID-19, so long as it is not inconsistent with a state’s emergency preparedness or pandemic plan.  This blanket waiver has a retroactive effective date of March 1, and remains in effect through the end of the emergency declaration.  CMS expressly states that the blanket waiver does not require a request to be sent to 1135waiver@cms.hhs.gov mailbox or that notification be made to any of CMS’s regional offices.

In the revised March 2020 CMS EMTALA guidance, CMS reminds that a waiver of EMTALA sanctions is effective only if actions under the waiver do not discriminate as to the source of payment or ability to pay.

Further, CMS states that the approved blanket waiver does not apply to the transfer of an individual who has not been stabilized if the transfer arises out of an emergency.  As of the date of this update, CMS has not issued a blanket waiver regarding hospitals’ transfer obligations.

Revised March 2020 CMS EMTALA Guidance

CMS clarifies and adds the following noteworthy guidance:

  • On-Campus Alternate Screening Sites. CMS clarifies that whether the individual is seen at the alternate on-campus site or in the ED, they should be logged in where they are seen.  According to CMS, individuals do not need to present to the ED first, and if they do present to the ED, they may still be redirected to the on-campus alternative screen location for logging and subsequent screening.  This is a triage function, and the person that provides the redirection from the ED should be qualified (e.g., a registered nurse) to recognize individuals who are obviously in need of immediate treatment in the ED.  CMS adds that hospital non-clinical staff at other entrances to the hospital may provide redirection to the on-campus alternative screening location for individuals seeking COVID-19 testing.
  • Drive Through Testing Sites. According to CMS, drive through testing sites that have been established for COVID-19 testing alone, including on a hospital campus, do not have EMTALA implications.  However, CMS cautions that EMTALA would still apply if a patient who was seeking only COVID-19 testing requested emergency medical treatment while on the hospital campus.
  • Off-Campus, Hospital-Controlled Screening Sites. CMS reminds that it has approved via 1135 waiver for COVID-19 pandemic the ability to re-direct patients to an off-site location for screening in accordance with a state emergency preparedness or pandemic plan.  CMS adds that hospitals can hold the site out as a respiratory or potential/presumed COVID-19 patient screening center.
  • Testing Station at Sites Not under Hospital Control (e.g., Mall or Retail Parking Lot). According to CMS, there is no EMTALA obligation at these sites, even if hospital personnel assist with the testing.  While hospitals may encourage the public to go to these sites instead of the hospital for COVID-19 testing, CMS reiterates that hospitals may not tell individuals who have already come to their ED to go to the off-site location for the COVID-19 testing until they have been provided an MSE and determined not to have an EMC.  CMS adds that these sites should be staffed with medical personnel trained to evaluate individuals with respiratory or potential/presumed COVID-19 symptoms.  Further, there should be protocols or a process in place to address patients who arrive in medical distress and need transport to a hospital (e.g., calling 911).
  • Acceptable Signage. CMS states that it is acceptable for a hospital to post signage informing individuals who are seeking COVID-19 testing about alternative community locations (non-hospital controlled sites) for COVID-19 testing but do not want an MSE or think they have an EMC.
  •  Use of Telehealth. CMS adds that hospitals may use telehealth equipment to perform the MSE by qualified medical personnel (QMP).  The QMP may be on-campus (and using telehealth to self-contain) or off-site (due to staffing shortages).  In either instance, the QMP must be performing within the scope of their state practice act and approved by the hospital’s governing body to perform MSEs.  According to CMS, the use of telehealth to evaluate individuals who have not physically presented to the hospital for treatment does not create an EMTALA liability.
  • Waiver for Qualified Medical Staff to Perform MSEs. CMS explains that hospitals may request a waiver to allow MSEs to be performed by qualified medical staff authorized by the hospital, such as registered nurses, who are acting within their scope of practice and licensure, yet are not designated in the bylaws to perform MSEs.
  • Appropriate EMTALA Transfers. CMS adds that if specially designated COVID-19 treatment facilities are implemented as part of a local, state, or national pandemic plan, the transfer of patients under these plans would comply with EMTALA.

As the COVID-19 pandemic evolves, hospitals should monitor for any additional guidance from CMS to ensure compliance with EMTALA requirements.

If you have any questions about EMTALA waivers and guidance in the context of the COVID-19 pandemic, please contact the authors of this alert.

In Case You Missed It: