Even as it warned hospitals they must comply with the screening and transfer requirements of the Emergency Medical Treatment and Labor Act (EMTALA) in the uncharted waters of the new coronavirus, CMS said in a March 9 memo[1] it could screen people at alternate-care sites, such as cars. But the lack of negative pressure rooms or intensive care units is not a reason for hospitals with emergency departments (EDs) to turn away transfers of patients infected with COVID-19, the illness caused by the coronavirus, according to the memo.
“There is guidance around directing patients to alternate sites. That’s the buzzword,” said attorney Holley Lutz, with Dentons US LLP in New York City. The question now is, what are all the options for alternate sites, and how can hospitals screen people for COVID-19 consistent with EMTALA and Centers for Disease Control and Prevention (CDC) guidelines, with an eye toward keeping people out of the ED? “Not all sites are created equal,” she said. And if they encourage the use of alternate sites in their signs and on their website, hospitals have to guard against a subtext of sending people away from the ED, which could violate EMTALA, said Gregory Fosheim, an attorney with McDermott Will & Emery LLP in Chicago, Illinois.
CMS also addressed questions hospitals have about receiving patient transfers with COVID-19, said attorney Sandra DiVarco, also with McDermott Will & Emery LLP in Chicago. Hospitals have been asking whether they can refuse transfers if they have no patients with COVID-19. The answer is usually no, DiVarco said. In the memo, CMS emphasized that EMTALA is in effect, although hospitals wondered after CMS suspended “non-emergency” surveys of compliance with the Medicare conditions of participation to free surveyors to focus on the coronavirus and other “serious health and safety threats,” according to a March 4 memo.[2] But that doesn’t mean surveyors will ignore other violations, and hospitals “won’t get a pass” on EMTALA, a former CMS official told RMC[3] when the memo was released.
CMS said so explicitly in the March 9 memo, noting that “all hospitals are expected, at a minimum to screen, isolate, and begin stabilizing treatment, as appropriate, for any individual with possible COVID-19 symptoms. Hospitals should coordinate with their State/local public health authorities regarding ongoing care and treatment.”
Hospitals and critical access hospitals (CAHs) with patients who have suspected or confirmed COVID-19 “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.” CMS said the CDC focuses on various factors, including the person’s “recent travel or exposure history and presenting signs and symptoms in differentiating the types of capabilities hospitals should have to screen and treat that individual.”
Hospitals may think they are off the hook for COVID-19 transfers because they don’t have negative pressure rooms (Airborne Infection Isolation rooms), but it’s not true, Fosheim said. “The current standard of care is not negative pressure rooms,” he said. Putting patients infected with the coronavirus in private rooms with a dedicated bathroom is acceptable unless aerosol-generated procedures are occurring, according to CDC guidance.[4]
In fact, if a patient is critically ill and a private room is not set up to provide appropriate care, the hospital wouldn’t automatically transfer the patient or decline the transfer, Fosheim said. Similarly, hospitals can’t refuse to perform a medical screening exam (MSE) because they lack personal protective equipment (e.g., masks, gowns).
If there are EMTALA complaints against the hospital, CMS will consider the CDC and public health guidance in effect at the time of the complaint.
End Runs Won’t Be ‘Looked on Favorably’
The memo also addressed alternate sites instead of the ED for screening patients for the coronavirus, including their cars. “However, the hospital should have a system in place to monitor those patients that opt to wait in their own vehicle to ensure that their condition has not deteriorated while awaiting further evaluation,” CMS said. If they drop the ball, hospitals could be cited for a violation of the MSE requirement of EMTALA and the Medicare Hospital Condition of Participation: Emergency Services.
MSEs could be performed at other locations on campus, and patients could be redirected from the ED after logging in, the memo said. Patients may be logged in outside the ED door. Hospitals also can set up screening for “influenza-like illnesses” at off-campus, hospital-controlled sites. However, if patients have already set foot in the ED, they can’t be redirected to off-campus, alternate sites. Unless they’re already dedicated EDs, EMTALA doesn’t apply there.
“The guidance is going to be incredibly helpful to hospitals, but it still leaves a lot of unanswered questions,” DiVarco said. It’s possible CMS will have more to say on EMTALA because of the steady stream of CMS guidance on regulatory, payment or safety aspects of COVID-19. “It’s coming fast and furious,” she noted. Hospitals should document the reasons for their decisions in real time, which is “considered to be sound practice in public health crisis response,” Fosheim explained. “If they made decisions as an end run around the regulations because they were being opportunistic, it is not likely to be looked upon favorably by the government, even if it’s six to 12 months later and everyone is finally taking a breath,” he said. That’s different from having to make accommodations through consultations with public health authorities that are consistent with good patient care.
The guidance should help hospitals as they “manage for the unknown,” Lutz said. “We don’t even know the numbers yet.” There’s a lot of emphasis on alternative sites, partly to keep the “worried well” away from people who are infected, she said. Testing people in their cars is one option. “CMS is being a little flexible in its thinking, but whether a hospital can do it will vary in terms of its logistics, space and staffing,” Lutz said. Things could get complicated if the hospital’s four-story parking garage is a block away.
Hospitals should establish a process for alternate sites, DiVarco added. “There’s some differentiating between drive-through screening versus walking into the emergency department,” she said. “If hospitals tell people who come to the ED to ‘please wait in your car if you think you have the coronavirus, and we will come to you,’ that could be an EMTALA violation.” However, it may be OK if patients prefer to wait in their cars because they have returned from Italy, for example.
Another option hospitals are considering as alternative sites is setting up screening at off-hospital premises, such as parking a health screening van in the parking lot of a strip mall that shut down because of the pandemic. “CMS doesn’t talk about hospital staff in non-hospital space like a screening van. But, as this is akin to screening at a health fair, I don’t think EMTALA should apply,” Lutz said. Although hospitals won’t be reimbursed, “at least people would be screened, tested, monitored and reported to the state health department. Hopefully, many of the worried-well who are asymptomatic and meet no screening factors can get peace of mind and go home and get out of the madness.” Another option is to set up tents behind the ambulance bay, where EMTALA applies.
The only upside here is that EMTALA violations probably won’t be related to a patient’s inability to pay, Fosheim said. Medicare and most private health insurers have waived copays for screening and Medicaid has followed suit in most states, he said.
As of midday March 13, hospitals can’t get Sec. 1135 waivers, which could give them relief from certain aspects of EMTALA, HIPAA and other regulations. The waivers may be available when “the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the HHS Secretary declares a public health emergency under Section 319 of the Public Health Service Act,” according to the CMS website. They aren’t blanket waivers, but hospitals could request relief based on the specific circumstances they were experiencing in relation to a crisis. HHS has declared a public health emergency, but President Trump, who spoke to the nation on March 11, so far hasn’t declared a national emergency. “This is uncharted territory,” DiVarco said. The tornado in Nashville and Hurricane Harvey in Texas and Louisiana were devastating, and the Ebola virus was alarming, but they weren’t national in scope. “Here we’re dealing with the whole country.”
Contact Fosheim at gfosheim@mwe.com, DiVarco at sdivarco@mwe.com and Lutz