COVID-19 Business Strategies Hub


By Dinsmore's Jared Bruce

On Friday, March 13, 2020, the Department of Health and Human Services (HHS) announced several waivers of existing Centers for Medicare and Medicaid Services (CMS) regulations pursuant to Section 1135(b) of the Social Security Act, including the waiver of certain Emergency Medical Treatment and Active Labor Act (EMTALA) obligations.

What is normally required by hospitals under EMTALA?

Generally, EMTALA requires Medicare-participating hospitals and critical access hospitals (CAH) that have a dedicated emergency room to, at a minimum, do the following:

  • Provide a medical screening exam (MSE) to every individual who comes to the emergency department for examination or treatment for a medical condition to determine if they have an emergency medical condition (EMC). An EMC is present when there are acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in serious impairment or dysfunction;
  • Provide necessary stabilizing treatment for individuals with an EMC within the hospital’s capability and capacity; and
  • Provide for transfers of individuals with EMCs, when appropriate.

What regulations have HHS waived under the COVID-19 public health emergency?

Under the EMTALA waiver, hospitals will not be sanctioned during the Public Health Emergency for: (1) not performing an MSE at the hospital emergency department and directing a patient from a hospital emergency department to another location (this would be an off-campus, non-hospital location) to receive the MSE, but only if that other location was set up pursuant to an appropriate state emergency preparedness plan and (2) transferring a person who has not been stabilized (under circumstances EMTALA would otherwise prohibit) if the “transfer is necessitated by the circumstances of the declared Federal public health emergency for the COVID-19 pandemic.”

How long will the EMTALA waiver continue in place? 

Until the Public Health Emergency declared by the Secretary of HHS on Jan. 31, 2020 ends.

The full HHS waiver can be accessed here.