On March 13, 2020, the Secretary of the U.S. Department of Health And Human Services (HHS) issued a series of waivers pursuant to Section 1135 of the Social Security Act, following President Trump’s declaration that the COVID-19 pandemic constitutes a national emergency. The HHS waiver included a waiver of certain requirements of the Emergency Medical Treatment and Labor Act (EMTALA). Specifically HHS waived the following in regard to EMTALA:
Sanctions under section 1867 of the Act (the Emergency Medical Treatment and Labor Act, or EMTALA) for the direction or relocation of an individual to another location to receive medical screening pursuant to an appropriate state emergency preparedness plan or for the 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.
EMTALA is a federal law and part of the Social Security Act that requires all Medicare-participating hospitals with a dedicated emergency department (ED) to perform an “appropriate” medical screening examination (MSE) for all individuals who come to their ED, regardless of the individual’s ability to pay. The purpose of the MSE is to determine if an emergency medical condition (EMC) exists. If the patient has an EMC, the hospital must treat and stabilize the individual’s EMC within its capabilities to do so or, if it doesn’t have the capability, transfer the person to a hospital that has the capability and capacity to stabilize the EMC.
The EMTALA waiver set forth above permits a hospital regulated by EMTALA to (1) redirect an individual to another location — including another hospital — to receive an MSE without first performing an MSE at the hospital if it is done pursuant to a state emergency preparedness plan, or (2) transfer an individual who has not yet been stabilized to another location if such actions are necessary and the result of circumstances due to the COVID-19 pandemic. In addition, HHS mandates that the EMTALA waivers do not apply to any actions taken by a hospital that discriminate against individuals on the basis of their source of payment or ability to pay.
The waiver should prove helpful to hospitals being overrun and having capacity issues in their EDs as a result of the COVID-19 pandemic, however, the waiver is specifically tied to circumstances related to the pandemic. Accordingly, hospitals must otherwise continue to comply with EMTALA’s requirements. CMS issued a memorandum with frequently asked questions on EMTALA requirements and COVID-19 on March 9, 2020 — before President Trump declared a state of emergency.
The EMTALA waiver became effective at 6:00 p.m. Eastern Standard Time on March 15, 2020, but will have a retroactive effect to March 1, 2020. Further, the HHS waiver will remain in effect for a period of 60 days (subject to extension by the Secretary of HHS for successive 60-day periods) or for the duration of the COVID-19 national emergency, whichever is earlier.