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Hospitals Attempt to Navigate Sea of Emergency Room Rule Changes

April 7, 2020, 9:46 AM

To help with the onslaught of coronavirus patients flooding emergency rooms, the Trump administration is allowing hospitals to encourage people to go to a mall or other location in the community to be tested. But hospitals still have to screen patients that walk through their emergency room doors.

That’s one of the many complexities of the latest waiver and subsequent memo the Centers for Medicare & Medicaid Services issued in an attempt to make it easier for hospitals to comply with a federal law Congress passed in 1986 to ensure everyone has access to emergency care regardless of their ability to pay for it.

Health law attorneys say hospitals still have questions about what they can and can’t do under the Emergency Medical Treatment and Labor Act. Though the CMS is not policing EMTALA compliance at the moment, attorneys fear the agency will conduct retroactive reviews of complaints it receives once the pandemic is over. Those caught violating the emergency care law risk steep fines or the loss of federal funding.

“I do think that there is still confusion in the hospital community about what was waived and where CMS is simply acknowledging flexibility within EMTALA given the circumstances,” said Sandra DiVarco, a partner at McDermott Will & Emery’s Chicago office who represents hospitals and health systems.

“Hospitals are looking for something that requires them to do a little bit less connecting the dots to sort it out.”

Confusion

EMTALA—Section 1867 of the Social Security Act—requires hospitals that participate in Medicare and offer emergency services to provide medical screening whenever someone asks for an exam or to be treated for an emergency medical condition, including active labor, regardless of whether that patient has health insurance or not. Hospitals then have to stabilize the patient before he or she can be transferred to another facility.

“EMTALA started for a very good reason: to prevent what was known as patient dumping,” DiVarco said. Patient dumping is when hospitals and emergency rooms release uninsured patients onto the street or transfer them to a public hospital without properly caring for them.

“Since it was put into place, it has become a fairly complicated regulatory process with a lot of interpretations over the years,” she said.

The waiver that CMS first issued March 13 made it sound like the agency was waiving all of EMTALA, said Melissa Markey, an attorney with the Denver office of Hall Render Killian Heath & Lyman PC, who specializes in emergency preparedness work.

“I don’t necessarily think that’s what they meant to say, but it could be interpreted that way,” she said

The CMS issued a new EMTALA waiver March 30 as part of a series of changes, specifying that hospitals could screen patients at locations off the hospital’s campus to prevent the spread of Covid-19.

The agency also issued a memo to state surveyors to specify how the CMS expects them to view certain things like drive-through testing sites and questions about where patients should be logged.

It’s difficult even in the best of times to be crystal clear when drafting language to deal with a complex legal construct like EMTALA, but working quickly makes it that much more difficult, Markey said.

‘Tricky Statute’

The memo says the agency is allowing hospitals to direct people to a community-run testing site instead of the emergency room, but “a hospital may not tell individuals who have already come to its emergency department to go to the off-site location for the COVID-19 testing until they have been provided a medical screening exam and determined not to have an emergency medical condition.”

“Despite the waivers and the flexibilities that have been provided, if someone still presents directly to an emergency department but is in some degree of respiratory distress and the hospital says ‘Oh we don’t have to screen you,’ that’s not accurate,” DiVarco said.

Signage is another area where hospitals must tread carefully.

The CMS emphasizes in its memo that it’s a violation of EMTALA for hospitals to use signage that stops individuals who are suspected of having Covid-19 from coming to the hospital, or to otherwise refuse to provide an appropriate medical screening exam to anyone who has come to the emergency room for an exam or treatment.

However, the agency says hospitals can use signs to help direct individuals to various locations on the hospital property to be screened. It’s also OK for hospitals to post signs informing individuals seeking Covid-19 testing about alternative testing locations.

“If you’re reading the guidance, you might worry ‘Well, how do I word the sign? Does that got too far?’” said Elizabeth Warren, a member of Bass Berry Sims PLC, who’s based in the Nashville, Tenn. office and represents hospitals and other health-care providers.

“EMTALA is a tricky statute to deal with because they often make these very technical distinctions,” she said

DiVarco said hospitals’ signage should be clear that to the extent possible the emergency room will screen patients, but there are alternative screening sites available.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com

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