Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About

Trending Topics

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni

    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor & Employment
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations

    Industries

    View All

    • Cannabis
    • Consumer
    • Energy
    • Entertainment
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Non Profit
    • Real Estate
    • Technology

    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    1. Home
    2. Insights
    3. Alerts
    4. COVID-19 Health Care Update: CMS Guidance on EMTALAAlerts

    Alert / Health Law Alert

    COVID-19 Health Care Update: CMS Guidance on EMTALA

    March 19, 2020

    Share

    By Sarah 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.

    DOWNLOADS

    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.

    Alternative screening sites and screening of patients who come to the ED

    CMS advised that hospitals may:

    • Set up screening sites on-campus as an alternative to the ED for the performance of MSEs.
    • Redirect individuals to such screening sites after they are logged in, which redirection and logging may occur outside of the ED entrance. Such directing must be done by an individual who is qualified to recognized individuals in need of treatment in the ED (for example, an RN).
    • Encourage the public to go to off-campus, hospital-controlled sites instead of the hospital for COVID-19 screening. NOTE: Hospitals may not tell individuals who have already come to their ED to go to the off-site location.
    • Not hold alternative sites for COVID-19 screenings out to the public as a place that provides care for emergency medical condition (EMC) in general on an urgent, unscheduled basis. Hospitals may hold such a site out as an influenza-like illness (ILI) screening center.
    • Arrange for the referral or transfer of such individuals. Prior coordination with local emergency medical services is recommended if an individual at the ILI screening center needs additional medical care on an emergent basis.

    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.

    • Hospitals may encourage the public to go to these sites for the screening of an ILI.
    • Hospitals may not tell individuals who have come to the ED to instead go to these off-site locations for the MSE.

    Hospital EMTALA obligations—screen, stabilization, and transfer

    EMTALA requires Medicare-participating hospitals and CAHs that have a dedicated ED to, at a minimum:

    • Provide an MSE to every individual who comes to the ED for examination or treatment for a medical condition to determine if he or she has an EMC.
    • Provide necessary stabilizing treatment for individuals with an EMC within the hospital’s capability and capacity.
    • Provide for the transfer of individuals with EMCs, when appropriate. 

    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.

    1135 Waivers

    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:

    • Direct or relocate an individual to another location to receive medical screening under a state emergency preparedness plan.
    • Transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared federal public health emergency for the COVID-19 pandemic.

    In addition, health care providers may now submit provider-specific requests for Section 1135 waivers.

    Conclusion

    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.

    Resources

    • Emergency Medical Treatment and Labor Act (EMTALA) Requirements and Implications Related to Coronavirus Disease 2019 (COVID-19), Centers for Medicare & Medicaid Services, Ref: QSO-20-15 Hospital/CAH/EMTALA, March 9, 2020.

    Practices

    HealthcareMedicare & Medicaid and Other Government Payors

    Industries

    Healthcare Industry

    Insights And Happenings

    • Alert

      HHS begins distributing $30B to health care providers affected by the pandemic under the CARES Act

      April 13, 2020
    • Alert

      OCR will not penalize covered healthcare providers and their vendors for HIPAA noncompliance at COVID-19 Community-Based Testing Sites (CBTSs)

      April 13, 2020
    • Alert

      New York government reaches agreement on mandatory sick leave in response to coronavirus outbreak—UPDATED to reflect amendments made prior to the law’s passage, and interplay with requirements imposed by the subsequent federal COVID-19 sick leave legislation

      April 2, 2020

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • © 2023 Nixon Peabody. All rights reserved
    • Privacy Policy
    • Terms of Use
    • Statement of Client Rights
    • Supplier Diversity Program
    • Nixon Peabody International LLC
    • PAL