The Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, obliges all Medicare participating hospitals with dedicated EDs to provide an appropriate medical screening exam (“MSE”) to determine if the patient has an “emergency medical condition” as defined. Within its capabilities, the hospital must treat and stabilize an EMC or transfer the individual to a hospital capable of doing so. The risk of a significant surge in demand, as a result of pandemic, has raised concerns about the ability of hospitals to comply with EMTALA under such extraordinary circumstances.

On August 14, 2009, the Centers for Medicare and Medicaid Services (“CMS”) issued a memorandum on the requirements and options under EMTALA for hospitals during a disaster. The memorandum provides that EMTALA’s required MSE need not entail an extensive work-up, and may occur outside the ED. CMS admonishes agency directors, state surveyors and managers responsible for EMTALA enforcement to assess complaints in light of the new memorandum.

Based on the CMS memorandum, hospitals may set up alternative screening sites on campus. The MSE must still be conducted by qualified personnel, which may include RNs properly trained and acting within the scope of the state’s nurse practice act. Hospitals may also set up screening at off-campus, hospital-controlled sites and encourage the public to utilize them, but they may not tell those who have come to the ED to go off site for an MSE. The hospital may hold out such an off-campus site as a specialized “influenza-like illness” screening center but not as a place that provides care for EMCs in general or on an urgent, unscheduled basis. Communities, of course, may set up screening clinics at sites not under hospital control; EMTALA would not apply to such sites. Again, the hospital may encourage the public to utilize such sites, but may not tell those who have already come to its ED to go there.

Hospitals may also seek EMTALA waivers. An EMTALA waiver may permit directing individuals coming to the ED to an alternative off-campus site for the MSE in accordance with a state emergency or pandemic preparedness plan. Hospitals may also effect transfers normally prohibited under EMTALA, so long as the transfer is necessitated by the circumstances of the declared emergency. The EMTALA MSE and stabilization requirements can be waived only if 1) The President has declared an emergency or disaster under the Stafford Act or the National Emergencies Act; 2) The Secretary of HHS has declared a Public Health Emergency; 3) The Secretary invokes his waiver authority, and notifies Congress at least 48 hours in advance; and 4) The waiver includes a waiver of EMTALA requirements and the hospital is covered by the waiver. All four are required.

Hospitals are encouraged to study the CMS memorandum and accompanying fact sheet and to give serious consideration to the provisions of these authorities as they develop their preparedness plans. Members of the Health Care Department at McGuireWoods are very familiar with EMTALA and are happy to assist in the development of disaster plans and other EMTALA policies.