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Morris Manning & Martin, LLP

EMTALA Under Coronavirus

03.16.2020

Many providers may be wondering how EMTALA applies during the Coronavirus outbreak. Providers are wondering how to screen patients while protecting other patients, whether they can transfer patients, and what to do when their hospitals and emergency departments are full. In short, EMTALA remains applicable. Moreover, hospitals are expected to have the capability to provide an appropriate MSE and stabilizing of patients unless there are capacity issues. In other words, hospitals will not have leeway to transfer patients saying that they “lack capability.”

Medical Screening Exam

As always, under EMTALA, hospitals must provide an appropriate medical screening exam to every patient who comes to the emergency room. This requirement will not change as more patients come to the emergency room. CMS has stated that it expects “Every ED to have the capability to apply appropriate COVID-19 screening criteria when applicable, to immediately identify and isolate individuals who meet the screening criteria to be a potential COVID-19, to contact their state or local public health officials to determine next steps.”

CMS will permit hospitals to set up alternative screening locations outside of the hospital, such as tents in parking areas. Hospitals are permitted to direct patients seeking COVID-19 testing to these areas after the patient has checked in. In addition, hospitals are permitted to establish patient registration checkpoints outside the doors of the emergency department.

Although hospitals and communities may set up testing locations around a community, hospitals must not direct patients who have already come to the emergency department or other area of the hospital campus seeking testing to leave and go to such community testing sites. As always, a patient who “comes to the ED” must be provided a MSE.

Stabilizing Treatment

For a patient that is evaluated to have an emergency medical condition, including related to COVID-19, EMTALA requires hospitals to provide stabilizing treatment, which may include admitting the patient, within the hospital’s capabilities. CMS has stated that, “In the case of individuals with suspected or confirmed COVID-19, hospitals and CAHs are expected to consider current guidance of 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.” However, CMS will not consider capabilities such as negative air pressure isolation rooms to be required for COVID-19 patients. Therefore, most hospitals with capacity, materials, equipment, and staff will likely be considered to “have the capability” to treat COVID-19 patients.

Transfer

EMTALA allows hospitals that lack the “capability” to stabilize a patient with an emergency medical condition to transfer the patient to a hospital with additional capabilities. Hospitals that have such additional capabilities are required to accept the transfer request.

CMS has stated that it will refer to current CDC recommendations to determine whether the transferring and transferee hospital each had the capability. A transferring hospital that had capabilities to stabilize the patient and requested a transfer instead would violate EMTALA.

CMS will not consider only hospitals with negative air pressure isolation units or infectious disease specialists to have the capability to treat COVID-19 patients.  In fact, CMS is specifically declining to designate specific treatment centers. Thus, hospitals that have staff, available capacity, and materials such as ventilators will likely be deemed to have the capability to stabilize patients and should not seek transfers. However, smaller hospitals may be able to seek transfers of more severe cases to larger tertiary care centers where the patient may require a more significant team of specialists (such as cardiac or pulmonary specialists).

Diversion

Hospitals that have EDs at capacity are permitted to go on diversion in accordance with state laws. In such a circumstance, ambulances would likely be directed away from the hospitals. However, any individual that comes to the ED, even when on diversion, must receive an appropriate MSE and stabilizing treatment.

EMTALA Waiver

State survey agencies may issue EMTALA waivers when a national State of Emergency is declared. These may be issued in response to a local or state pandemic preparedness plan. CMS has not indicated at this time that it will issue any such waivers.

Resources

https://www.cms.gov/files/document/qso-20-15-emtala-requirements-and-coronavirus-0311-updated-003pdf.pdf-1

42 CFR 489.24