Hospitals across the country are questioning whether and how the Emergency Medical Treatment and Labor Act (EMTALA) requirements apply during the COVID-19 pandemic. Last week, CMS issued a list of Frequently Asked Questions (and answers) for hospitals and critical access hospitals (CAH) regarding EMTALA (the FAQ). The FAQ offers a number of clarifications and insights for hospitals seeking EMTALA compliance guidance during the COVID-19 emergency, including guidance related to signage, the use of alternate locations for screening, and the use of telehealth services.
We have summarized and analyzed some of those clarifications and insights below, arranged by the subject headings CMS utilized in the FAQ. (We note the relevant FAQ number under each subject heading.)
Patient Presentation to the Emergency Department
Hospitals may place a sign outside an Emergency Department (ED) stating "COVID-19 testing is not being offered to asymptomatic patients." In addition, hospitals may use signage to inform individuals about the availability of COVID-19 testing or to provide direction to alternative sites on the hospital's campus where medical screening examinations (MSEs) are available, including, e.g., a parking lot COVID-19 test site. Hospitals also may encourage the public to go to off-campus sites for COVID-19 screening, instead of the hospital. CMS emphasizes, however, that it is a violation of EMTALA for hospitals and CAHs with EDs to use signage that presents barriers to individuals, including those who are suspected of having COVID-19, from coming to the ED (FAQ #2).
Hospitals may redirect patients to another location (e.g., an offsite alternate screening location) to receive a MSE pursuant to a section 1135 waiver and a state emergency preparedness or pandemic plan, regardless of the presence of COVID-19 symptoms. Even patients transported in ambulances owned and operated by a hospital may be transported to a different hospital as long as the ambulances are acting in accordance with a community-wide EMS protocol (FAQ #3).
Where Does EMTALA Apply?
Hospitals and community officials may encourage the public to go to off-campus sites for COVID-19 screening, instead of the hospital, as long as those sites (i) are operating in accordance with the state or local pandemic plan; (ii) are identified specifically by the hospital as the location to receive a MSE; and (iii) have the capability and capacity to provide the required MSE. In addition, for the duration of the public health emergency (PHE), hospitals may, pursuant to a section 1135 waiver, re-direct patients that had presented to the ED to an offsite location for a MSE in accordance with a state emergency preparedness or pandemic plan. (FAQ #1)
For the duration of the COVID-19 PHE, hospitals may, pursuant to an 1135 waiver, establish and operate, as part of the hospital, a location meeting the Conditions of Participation (CoPs) for hospitals that continue to apply during the PHE. The waivers also allow a hospital to change the status of its current provider-based department locations to the extent necessary to address the needs of hospital patients as part of the state or local pandemic plan. As such, it is acceptable to triage and treat patients in Temporary Expansion Locations, as described in CMS' Hospital's Flexibilities to Flight COVID-19 article (FAQ #2).
Even in situations where a hospital may not have necessary services or equipment, if an individual is determined to have an emergency medical condition (EMC), the hospital is required to provide stabilizing treatment within its capability for that individual prior to arranging an appropriate transfer. For example, in cases where the hospital does not have available ventilators, establishing an advanced airway and providing manual ventilation can assist in stabilizing the individual until the hospital can arrange for an appropriate transfer (FAQ #4).
The use of telehealth to provide evaluation of individuals who have not physically presented to the hospital for treatment does not create an EMTALA obligation (FAQ #6). The use of telehealth in the EMTALA context is addressed below under the heading "Telehealth."
Qualified Medical Professionals
Hospital governing bodies must still approve qualified medical professionals (QMPs) to perform MSEs. Hospitals may, however, request a case-by-case section 1135 waiver to allow MSEs to be performed by qualified medical staff authorized by the hospital, who are acting within their scope of practice and licensure, but are not designated in the hospital bylaws to perform the MSEs (FAQ #1).
Medical Screening Exam
QMPs, including emergency physicians, can perform MSEs using telehealth equipment. The QMP may be on-campus and using technology to self-contain, or offsite due to staffing shortages. The MSE may be performed solely via telehealth if clinically appropriate. If the patient is seen by a QMP located on campus via electronic two-way technology, the service is not considered a telehealth visit. Regardless of location, the QMP must be performing within the scope of his/her state practice act limitations and approved by the hospital's governing body to perform MSEs (FAQ #1). Additional uses of telehealth in the EMTALA context are addressed below under the heading "Telehealth."
A hospital may set up alternative sites on its campus to perform MSEs and may redirect individuals to those sites. Whether the individuals are seen at the alternate on-campus site or in the ED, they should be logged in where they are seen. Individuals do not need to present to the ED first, and if they do present to the ED, the hospital may still redirect them to the on-campus alternative screening location for logging in and subsequent screening. This is a triage function, and the person providing the redirection from the ED should be qualified to recognize individuals who are obviously in need of immediate treatment in the ED (FAQ #3).
EMTALA applies if a patient who is solely seeking COVID-19 testing makes a request for medical treatment while on the hospital campus or demonstrates a medical condition that a prudent layperson would believe, based on the individual's appearance or behavior, indicates that the individual needs examination or treatment of a medical condition. However, patients who present solely for the purpose of COVID-19 testing and are not making a request for treatment of a medical condition, do not necessarily require a MSE (FAQ #5).
If a hospital sets up a COVID-19 testing location offsite, and patients only present to the hospital for testing without requesting additional services, those patients do not need an MSE before they are referred offsite, unless they are requesting examination or treatment for a medical condition or demonstrate a medical condition for which a MSE is necessary (FAQ #9).
Transfer and Stabilization of a Patient
Hospitals may transfer patients (including non-COVID-19 patients) to a designated facility to better isolate or cohort patients in accordance with a state emergency preparedness and pandemic plan, following an appropriate MSE and determination that the individual is stable for an appropriate transfer (FAQ #2).
Hospitals must provide a MSE to all individuals who come to the ED requesting treatment for a medical condition, or where the individual is demonstrating the presence of a medical condition, to determine if an EMC exists. Once the MSE is complete and if a QMP determines that the individual does not have an EMC, the hospital's EMTALA obligation ends and the hospital may refer the individual to an urgent care center for continued care of a non-emergency illness or injury. However, a section 1135 waiver gives hospitals the ability to re-direct patients that had presented to the ED to an offsite location for the MSE in accordance with a state emergency preparedness or pandemic plan. Under the section 1135 waiver, hospital EDs may redirect incoming patients to alternative screening sites staffed by qualified medical workers to ensure that symptomatic or COVID-19-positive patients are directed to appropriate settings of care (FAQ #6).
With several important caveats, out-of-state emergency physicians can provide telehealth to beneficiaries in a different state. For Medicare and Medicaid, CMS has waived the in-state licensure requirement (i.e., the state in which the patients are located), provided that the physician has a valid license in another state. However, in order for this federal waiver to be effective, the state in which the physician seeks to render services (again, the state in which the patient is located) also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician is licensed in his/her home state (FAQ #1).
ED physicians can perform telehealth services from any location. CMS has temporarily added a number of ED E/M codes to the list of Medicare telehealth services for the duration of the COVID-19 PHE. ED physicians should use the place of service code that they would have used if they had delivered the service in-person. They should also attach modifier 95 to the claim. For example, regardless of their location, ED physicians who are delivering emergency services can use the ED E/M codes with place of service 23 (ED) and attach modifier 95. Note, however, that when the patient and the practitioner are in the same location, such as in different areas of the same hospital building, they are not considered to be furnishing Medicare telehealth services, and the services are not subject to telehealth rules and restrictions. Instead, they should be reported as in-person services (FAQ #2).
The rule to allow for direct supervision using interactive audio and video technology is limited to the duration of the PHE (FAQ #3).
Teaching physicians can provide services with medical residents virtually through audio/video real-time communications technology. During the PHE, the teaching physician can be present during the key portion of the service using interactive telecommunications technology. This does not apply in the case of surgical, high risk, interventional, or other complex procedures, services performed through an endoscope, and anesthesia services (FAQ #4).
As noted above, under the heading "Medical Screening Exam" (FAQ #1), QMPs, including emergency physicians, can perform MSEs using telehealth equipment during the PHE; and, as noted above under "Where Does EMTALA Apply" (FAQ #6), the use of telehealth to provide evaluation of individuals who have not physically presented to the hospital for treatment does not create an EMTALA obligation.
Waivers Under Section 1135 of the Social Security Act
CMS has not "broadly waived" EMTALA. CMS has approved a section 1135 waiver for the COVID-19 PHE, which temporarily includes the ability for hospitals to re-direct patients to an offsite location for screening in accordance with a state emergency preparedness or pandemic plan. CMS makes clear that while certain aspects of EMTALA may be waived under the section 1135 waiver, Federal civil rights laws have not been waived, hospitals that receive federal financial assistance are still obligated to comply with federal civil rights laws, including Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act and the Hill-Burton Act (FAQ #1).
Waivers for the current PHE under section 1135 will end no later than the termination of the COVID-19 PHE period, or 60 days from the date the waiver or modification is first published, unless the Secretary of the Department of Health and Human Services extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period (FAQ #4).
Alternative care sites and temporary extension sites that hospitals establish during the PHE are required to follow applicable hospital CoPs to the extent not waived under the blanket waivers issued by CMS. However, community testing centers established by a state would be under the state emergency and pandemic plan and CMS does not require them to meet the hospital CoPs (FAQ #2).
Drive through testing sites that have been established for COVID-19 testing alone, including on a hospital campus, do not implicate EMTALA. However, EMTALA would still apply if an individual who was seeking COVID-19 testing made a request for medical treatment while on the hospital campus (FAQ #3).
The FAQ provides helpful guidance for hospitals questioning how to best provide emergency care during the COVID-19 PHE. Foley & Lardner LLP attorneys are tracking legal developments related to COVID-19 and the implications for health care providers. For more information, please contact your Foley relationship partner or the Foley colleagues listed below. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization.
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