CMS Issues Guidance to Hospitals on Emergency Treatment of COVID-19 Patients

The Centers for Medicare & Medicaid Services (CMS) continues to issue frequent guidance to the healthcare industry, including guidance after receiving questions on fulfilling Emergency Medical Treatment and Labor Act screening obligations by hospitals and critical access hospitals while minimizing the risk of exposure from COVID-19 patients.

The Emergency Medical Treatment and Labor Act (EMTALA) requires that every hospital or critical access hospital (CAH) with a dedicated emergency room (ED) conduct an appropriate medical screening examination of all individuals who come to the ED, including individuals who are suspected of having the 2019 Novel Coronavirus (COVID-19), regardless of whether they arrive by ambulance or are walk-ins.

Questions regarding the continued applicability of EMTALA stabilization, transfer, and receipt of COVID-19 patients are addressed in the March 9 guidance, as hospitals prepare for surge and possible transfers of patients.

The guidance provides advice and reminds the industry of the rare circumstance in which EMTALA obligations may be waived (noted below).

We urge you to review the guidance in detail, but several interesting issues are highlighted below:

• Hospitals may establish alternative screening sites on their campuses.
• Hospitals and community officials may encourage the public to go to off-campus, hospital-controlled sites for screening for influenza-like illness. However, a hospital may not tell individuals who have already come to their emergency department to go to the offsite location. Unless the offsite location is already a dedicated emergency department of the hospital, EMTALA requirements do not apply.
• Communities may set up screening clinics at sites not under the control of a hospital; however, a hospital may not tell individuals who have already come to their ED to go the offsite location for the medical screening evaluation.
• Hospitals may not refuse to allow individuals with suspected cases of COVID-19 into their ED.
• The lack of intensive care unit (ICU) capabilities does not exempt a hospital from performing a medical screening evaluation and initiating/stabilizing treatment for individuals with suspected COVID-19 who come to the hospital’s ED.
• If a hospital lacks personal protective equipment or specialized equipment or facilities, the hospital may not decline to perform a medical screening evaluation on an individual who comes to their ED.
• The presence or absence of negative pressure rooms (airborne infection isolation room, or AIIR) is not the sole determining factor relating to transferring patients from one setting to another; in some cases a private room may be all that is required.

The guidance contains frequently asked questions that provide additional detail with regard to transfers under EMTALA for specialized service and determinations relating to complaints that may be filed relating to inappropriate transfers.

Flexibility in managing EMTALA requirements and the impending pandemic are also addressed by CMS.

While CMS reminds hospitals that they may not use signage as a barrier to entry for individuals who are seeking treatment for COVID-19, the use of signage designed to help direct individuals to various locations on hospital property can be appropriately implemented.

Addressing screening requirements for individuals who remain in their vehicles is also allowed, assuming the hospital performs the necessary screening to determine whether emergency intervention is needed and intervenes appropriately if a patient’s condition deteriorates while awaiting further evaluation.

EMTALA requirements may be waived. An EMTALA waiver allows hospitals to direct individuals who may come on campus to an alternative off-campus site, in accordance with a state emergency or pandemic preparedness plan, for their medical screening examination. Additionally, transfers normally prohibited under EMTALA may be allowed due to the necessity of the pandemic.

An EMTALA waiver may only occur if

• the US president declares an emergency or disaster under the Stafford Act or National Emergencies Act; AND
• the secretary of Health and Human Services (HHS) has declared a public health emergency; AND
• the secretary invokes his/her waiver authority (which may be retroactive), including notifying Congress at least 48 hours in advance; AND
• the waiver includes waiver of EMTALA requirements and the hospital is covered by EMTALA.

With regard to personal protective equipment (PPEs), the guidance recognizes that not all hospitals will have access to or have enough PPEs. The guidance does not seem to give hospitals a “pass”, however, in this regard and reminds all hospitals that conditions of participation regarding infection control standards must be followed. CMS recognizes that hospitals may lose healthcare workers to the virus and may not have sufficient staff or ability to treat patients that may come to the ED. In these instances, if a hospital no longer has the “capacity to screen and treat individuals” it may go on diversion.

Finally, an important issue addressed relates to approvals concerning certification and licensure of alternative screening locations by hospitals. For locations that are already part of a certified hospital, there is no additional requirement, but CMS does require the filing of an additional FORM 855A for designation of a new practice location to advise CMS. Prior approval for this location from CMS is not required to bill for services provided in this location, however. There is also no survey requirement for compliance with Conditions of Participation, but CMS reminds hospitals to notify and consult with state licensing authorities.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington DC
Michele Buenafe
Kathleen McDermott
Scott Memmott
Albert Shay
Howard Young
Jacob Harper

Houston
Greg Etzel
Scott McBride
Sydney Reed 

Boston
Mark Stein