EMTALA Obligations Amid the COVID-19 Pandemic

March 24, 2020Alerts

The Centers for Medicare & Medicaid Services (CMS) recently issued additional guidance regarding Emergency Medical Treatment And Labor Act requirements (EMTALA) as they relate to hospitals’ screening and treatment of patients during the COVID-19 pandemic. CMS has also issued guidance on survey activities, publishing Suspension of Survey Activities on March 4, 2020 and Prioritization of Survey Activities on March 23, 2020, outlining modified procedures for EMTALA and other surveys.

Highlights of Recent Guidance

The CMS survey guidance directs that for three weeks starting March 20, 2020, only the following EMTALA-related surveys will occur:

  • Complaint and facility-reported incident surveys that may trigger possible immediate jeopardy-related deficiencies. 
  • Targeted infection control surveys identified through collaboration with the Centers for Disease Control and Prevention (CDC) and HHS Assistant Secretary for Preparedness and Response (ASPR).
  • Any revisits necessary to resolve pending immediate jeopardy enforcement actions.

Surveyors are authorized to conduct surveys remotely if there is insufficient Personal Protective Equipment (PPE) available to meet the expectations in the latest CDC guidance. Surveys can be suspended and not fully completed if on-site work is needed but not possible due to lack of appropriate PPE supplies.

CMS is also sharing with providers its Focused Infection Control Survey Tool and expecting facilities to use the tool to conduct their own self-assessments. Should a hospital experience an EMTALA survey during the coming weeks, a likely first question from surveyors will be to request the results of the hospital’s self-assessment. Failure to use the tool to conduct a self-assessment and implement improvements is likely to result in deficiencies that may rise to the immediate jeopardy level.

Combining all the current EMTALA and survey-related guidance highlights the need for hospitals to track daily updates from public health authorities, plan to cooperate with surveyors even as CMS provides temporary relief from certain surveys and thoroughly document their COVID-19 planning and response to prepare for future surveys or patient claims.

EMTALA Obligations Remain

EMTALA requirements remain in effect during this crisis. Hospitals continue to have the same obligations to conduct appropriate medical screening examinations of all individuals who come to the emergency department, including those suspected of having COVID-19, regardless of how they present. CMS expects every emergency department to know and be able to implement appropriate COVID-19 screening criteria based upon current public health guidance, immediately identify and isolate individuals who meet the screening criteria to be diagnosed with potential COVID-19 and contact appropriate state or local public health officials to determine next steps.

CMS has also made it clear that hospitals must follow current CDC and public health guidance in determining whether they have the capability to provide appropriate isolation required for stabilizing treatment and/or to accept appropriate transfers. Hospitals will likely be deemed to have the necessary capability and capacity unless they are able to produce thorough supporting evidence that they lack this ability. CMS has determined that hospitals may establish screening sites at alternative locations on campus or at off-campus, hospital controlled sites. Hospitals can provide general public notice to encourage individuals to seek screening at sites in the community not under the control of the hospital. However, hospitals cannot tell individuals who have already come to their emergency departments to go to a community offsite location for a medical screening examination.

Hospitals are expected to stay current on the most recent standards of infection control practices to prevent the spread of COVID-19 issued by the CMS and the CDC, the protective equipment and precautions that should be used when caring for patients with infectious diseases (including COVID-19), the appropriate isolation precautions and alternative sources or methods of furnishing protective equipment and supplies when usual supply chains are not sufficient.

Survey Activities

Although CMS’s March 4 and March 23 guidance provide some relief from survey activities, some surveys will continue to occur in some form. In the stress of the moment, hospital leaders may react negatively to the appearance of surveyors who they view as interfering with the hospital’s ability to respond to the pandemic and focus limited resources on critical patient care. It is essential that hospital leadership not interpret CMS suspension of survey activities too broadly and keep in mind the above exceptions. Negative reactions to surveyors, if interpreted as refusing the survey, can lead to drastic regulatory consequences. CMS has the authority to exclude a provider from Medicare and other government programs if it refuses a survey.

Hospital staff should generally assume that surveyors are present to address potential issues that fall within one of the permitted exceptions rather than jump to the conclusion that the survey should not occur. Since COVID-19 is quickly spreading and presence on the hospital campus, particularly in the emergency department, likely puts the surveyors at personal risk of contracting the disease, hospital staff should assume they are conducting the survey, particularly on site, only because they believe they must do so. Surveyors must proceed on the basis of whether an allegation or complaint falls within one of the permitted exceptions and conduct the survey to determine whether the complaint or allegation should be substantiated.

Maintain Thorough Documentation

Even if a hospital does not experience a survey in the midst of coping with the pandemic, surveys that scrutinize hospital actions during the pandemic may occur after the fact. Families of individuals who die or have serious residual health consequences due to COVID-19 may turn to the legal system for relief. A common tactic is to make allegations to government officials to instigate an investigation and then use the findings as support for allegations in a claim against the hospital.

Although managing care of patients is paramount, clear and thorough documentation remains very important. A hospital would be well-served to designate one or more staff to maintain documentation related to COVID-19 for multiple purposes. With respect to EMTALA obligations, the following documentation is advisable:

  • Hospital steps taken to remain current on CDC and other public health guidance on prevention and treatment of COVID-19 and protection of healthcare staff.
  • Hospital measures to educate and train staff on the most recent CDC and public health COVID-19 guidance.
  • Hospital policies, procedures and protocols to address COVID-19. Surveys have already occurred where these have been requested and scrutinized.
  • Hospital systems for monitoring supply chains and obtaining appropriate and adequate needed supplies and equipment.
  • Efforts to obtain needed supplies and equipment even if unsuccessful, analysis of how to conserve essential supplies for those most in need and alternative methods considered to improvise needed supplies. This includes documentation of decision-making on postponing non-essential procedures and services, allocating supplies to certain departments, such as the emergency department, and establishing protocols for sanitizing and reusing certain protective equipment if possible.
  • Hospital leadership decision-making and plans to implement needed isolation areas or rooms and procedures.
  • Use of the Infected Control Survey Self Assessment Tool  and implementation of infection control measures.
  • Monitoring of staff response, particularly in the emergency department, for any shortcomings and steps taken to re-educate staff and provide needed support to improve staff response.
  • Evaluation of any temporary signage to assess whether it could be interpreted as discouraging an individual from seeking a medical screening exam and stabilizing treatment for COVID-19. Signage directing individuals that believe they have symptoms to a particular location within the emergency department or elsewhere on or off the hospital campus is permitted. This should be evaluated and implemented on a system basis to concentrate COVID-19 assessment and treatment in a certain hospital location and not on a case-by-case basis that could be interpreted as discouraging an individual from obtaining a medical screening exam. Signs that list COVID-19 symptoms and suggest that individuals contact their primary clinician rather than remaining at the emergency department or the hospital for screening could be construed as improperly discouraging individuals from obtaining an appropriate medical screening examination at the hospital and should not be used. In contrast, general community education public announcements urging individuals to call their primary care provider, use telehealth or other resources if concerned about symptoms should be acceptable.
  • Any hospital decision to divert patients from the emergency department or to refuse transfers based upon lack of capacity or capability should be based on a detailed assessment and extensive documentation regarding the conditions at the time and the reasons for the diversion. 
  • Documentation should be preserved not just during a pandemic but for a number of months following the pandemic to be prepared for surveys that entail retrospective review of the hospital’s actions during the pandemic.

Hospitals should also keep in mind that their obligations to individuals presenting with complaints or symptoms of an emergency medical condition other than COVID-19 remain covered by EMTALA even during the pandemic. Hospitals should follow usual measures to screen and stabilize these patients, including often challenging patients, such as those with behavioral health issues.

Although CMS guidance is intended to provide some relief from EMTALA, hospitals should generally not change their existing systems for assuring EMTALA compliance. Surveyors are likely to be empathetic and not extend their stay too long when conducting a survey. However,  the focus of surveys that are conducted will be considered essential to assuring patient and staff health and safety.  Hospitals still face the possibility of a high stakes EMTALA exam of their own performance.

Maureen Demarest Murray is Co-Chair of Fox Rothschild’s Health Law Practice. She can be reached at 336.378.5258 or [email protected].