March 19, 2020
Health Law Alert
Author(s): Sarah E. Swank
The Centers for Medicare & Medicaid Services (CMS) issued a memorandum, in response to inquiries from hospitals and critical access hospitals (CAHs), regarding the Emergency Medical Treatment and Labor Act (EMTALA) requirements and implementations related to COVID-19.
The Centers for Medicare & Medicaid Services (CMS) issued a memorandum, in response to inquiries from hospitals and critical access hospitals (CAHs), regarding the Emergency Medical Treatment and Labor Act (EMTALA) requirements and implementations related to COVID-19. CMS reiterated that hospitals and CAHs with a dedicated emergency department (ED) are required to conduct an appropriate medical screening examination (MSE) of individuals who come to the ED, including individuals with COVID-19, regardless of whether they arrive by ambulance or walk-in. EDs are expected to have the capability to apply an appropriate COVID-19 screening, to immediately identify and isolate individuals who meet the screening criteria to be potential COVID-19 patients, and to contact their state or local public health officials to determine next steps.
CMS advised that hospitals may:
CMS further advised that communities may establish screening clinics at sites not under the control of a hospital, at which there are no EMTALA obligations.
EMTALA requires Medicare-participating hospitals and CAHs that have a dedicated ED to, at a minimum:
Hospitals and CAHs are expected to consider the current guidance of the Centers for Disease Control and Prevention (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 transfers. In the event of an EMTALA complaint alleging inappropriate transfers or refusal to accept appropriate transfers, CMS will consider the CDC recommendations and other public health guidance in effect at the time. CMS would also evaluate the capabilities and capacity of both the referring and recipient hospitals in order to determine if a violation has occurred. CMS noted that the presence or absence of an airborne infection isolation room (AIIR) would not be the sole factor related to transferring patients from one setting to another when in some cases, all that would be required is a private room.
On Friday, March 13, 2020, President Donald J. Trump issued a Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (National Emergency Proclamation) under the National Emergencies Act (50 U.S.C. § 1601 et seq.). The National Emergency Proclamation opens the door for the United States Health and Human Services (HHS) to offer health care providers relief through waivers under Section 1135 of the Social Security Act (Section 1135 waivers). Following the National Emergency Proclamation, CMS issued several Section 1135 waivers for health care providers. Specifically, EMTALA sanctions can be waived for hospitals that:
In addition, health care providers may now submit provider-specific requests for Section 1135 waivers.
As part of every hospitals response planning, they should understand their current EMTALA requirements and seek Section 1135 waivers, as appropriate. Specific Section 1135 waivers could relate to EMTALA screening, stabilization, and/or transfer requirements to facilitate serving patients and the community during the COVID-19 pandemic. Statewide emergency declarations from our governors and state licensure laws should be reviewed, as well as any Section 1135 waivers obtained by a state itself. Hospitals should coordinate with their state or local public health officials regarding the placement of individuals meeting the COVID-19 assessment criteria.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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