CMS Issues Options for Providers to Comply with EMTALA in Anticipation of H1N1

In anticipation of a possible H1N1 virus outbreak this flu season, CMS has released guidance concerning EMTALA requirements during disasters and pandemics.  CMS has outlined compliance options that are permissible under EMTALA and that grant providers with flexibility to handle extraordinary increases in emergency department visits.  The options include setting up alternative screening sites on the hospital campus, off-campus screening at hospital-controlled sites, and community screening clinics at sites not under hospital control.  To read more click here.

 Hospitals have expressed concern about how they should handle an expected increase in emergency department (ED) visits and still comply with the requirements and restrictions under the Emergency Medical Treatment and Active Labor Act (EMTALA).  To assist providers in these circumstances, CMS has issued options to handle these issues in anticipation of an increasing number of H1N1 influenza cases this fall. 

 

When an individual presents to a hospital ED, providers must comply with all EMTALA requirements.  This includes performing a Medical Screening Exam (MSE) to determine whether the individual has an Emergency Medical Condition (EMC) without regard to the individual’s ability to pay.  If an individual has an EMC, the hospital must treat and stabilize the EMC within its capacity and capability, or arrange for an appropriate transfer of the individual to a hospital that has the capacity and capability to stabilize the individual.

 

The CMS “Fact Sheet” clarifies options that are permissible under EMTALA, which may reassure providers that there is existing flexibility under EMTALA.  The Fact Sheet sets forth options for “managing extraordinary ED surges under existing EMTALA requirements” when no waiver is required, and sets forth when an EMTALA waiver may take effec

 

Hospitals may set up alternative screening sites on their campuses to perform MSEs.  The MSEs can be simple or complex as long as they are sufficient to determine if an EMC exits.  The MSEs must, however, be performed by qualified personnel, such as a physician, nurse practitioner or physician assistant, and the hospital must provide stabilizing treatment or appropriate transfer to those individuals found to have an EMC.  Individuals, after being logged in at the ED, may be redirected to the alternative site for the actual performance of the MSE, although the individual redirecting patients should be qualified (e.g. an RN) to recognize individuals who are seriously in need of immediate treatment in the ED.

 

Alternatively, hospitals may also set up influenza screening sites at off-campus, hospital-controlled locations.  Communities also may set up influenza screening clinics at sites not under hospital control, which would not be required to fulfill EMTALA obligations. 

 

The Fact Sheet also sets forth the circumstances under which an EMTALA waiver may be issued.  Waivers of the EMTALA MSE and stabilization requirements may only be issued when either the President of the United States declares an emergency disaster under the Stafford Act or the National Emergencies Act, or the HHS Secretary declares a Public Health Emergency.  In the event that a waiver is issued, CMS will notify covered hospitals through its Regional Offices and/or State Agencies.  An EMTALA waiver allows hospitals to direct or relocate patients presenting at the ED to an alternative off-campus site for their MSE.  Additionally, a waiver may permit the transfer of unstable patients, if the transfer is “necessitated by circumstances of the declared emergency.” 

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This Jackson Kelly PLLC E-News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC E-News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

 

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