Fact sheet emergency Medical Treatment and Labor Act (emtala) & Surges in Demand for Emergency Department (ED) Services During a Pandemic



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D
Attachment B
epartment of Health & Human Services

Centers for Medicare & Medicaid Service

7500 Security Boulevard, Mail Stop S2-12-25

Baltimore, Maryland 21244-1850


FACT SHEET
Emergency Medical Treatment and Labor Act (EMTALA) &

Surges in Demand for Emergency Department (ED) Services During a Pandemic


  1. What is EMTALA?




  • EMTALA is a Federal law that requires all Medicare-participating hospitals with dedicated EDs to perform the following for all individuals who come to their EDs, regardless of their ability to pay:

  • An appropriate medical screening exam (MSE) to determine if the individual has an Emergency Medical Condition (EMC). If there is no EMC, the hospital’s EMTALA obligations end.

  • If there is an EMC, the hospital must:

+ Treat and stabilize the EMC within its capability (including inpatient admission when necessary); OR

+ Transfer the individual to a hospital that has the capability and capacity to stabilize the EMC.

  • Hospitals with specialized capabilities (with or without an ED) may not refuse an appropriate transfer under EMTALA if they have the capacity to treat the transferred individual.

  • EMTALA ensures access to hospital emergency services; it need not be a barrier to providing care in a disaster.




  1. Options for Managing Extraordinary ED Surges Under Existing EMTALA Requirements (No Waiver Required)




  1. Hospitals may set up alternative screening sites on campus




  • The MSE does not have to take place in the ED. A hospital may set up alternative sites on its campus to perform MSEs.

    • Individuals may be redirected to these sites after being logged in. The redirection and logging can even take place outside the entrance to the ED.

    • The person doing the directing should be qualified (e.g., an RN) to recognize individuals who are obviously in need of immediate treatment in the ED.

  • The content of the MSE varies according to the individual’s presenting signs and symptoms. It can be as simple or as complex, as needed, to determine if an EMC exists.

  • MSEs must be conducted by qualified personnel, which may include physicians, nurse practitioners, physician’s assistants, or RNs trained to perform MSEs and acting within the scope of their State Practice Act.

  • The hospital must provide stabilizing treatment (or appropriate transfer) to individuals found to have an EMC, including moving them as needed from the alternative site to another on-campus department.




  1. Hospitals may set up screening at off-campus, hospital-controlled sites.




  • Hospitals and community officials may encourage the public to go to these sites instead of the hospital for screening for influenza-like illness (ILI). However, a hospital may not tell individuals who have already come to its ED to go to the off-site location for the MSE.




  • Unless the off-campus site is already a dedicated ED (DED) of the hospital, as defined under EMTALA regulations, EMTALA requirements do not apply.

  • The hospital should not hold the site out to the public as a place that provides care for EMCs in general on an urgent, unscheduled basis. They can hold it out as an ILI screening center.

  • The off-campus site should be staffed with medical personnel trained to evaluate individuals with ILIs.

  • If an individual needs additional medical attention on an emergent basis, the hospital is required, under the Medicare Conditions of Participation, to arrange referral/transfer. Prior coordination with local emergency medical services (EMS) is advised to develop transport arrangements.




  1. Communities may set up screening clinics at sites not under the control of a hospital




  • There is no EMTALA obligation at these sites.

  • Hospitals and community officials may encourage the public to go to these sites instead of the hospital for screening for ILI. However, a hospital may not tell individuals who have already come to its ED to go to the off-site location for the MSE.

  • Communities are encouraged to staff the sites with medical personnel trained to evaluate individuals with ILIs.

  • In preparation for a pandemic, the community, its local hospitals and EMS are encouraged to plan for referral and transport of individuals needing additional medical attention on an emergent basis.




  1. EMTALA Waivers




  • An EMTALA waiver allows hospitals to:

    • Direct or relocate individuals who come to the ED to an alternative off-campus site, in accordance with a State emergency or pandemic preparedness plan, for the MSE.

    • Effect transfers normally prohibited under EMTALA of individuals with unstable EMCs, so long as the transfer is necessitated by the circumstances of the declared emergency.

  • By law, the EMTALA MSE and stabilization requirements can be waived for a hospital only if:

    • The President has declared an emergency or disaster under the Stafford Act or the National Emergencies Act ; and

    • The Secretary of HHS has declared a Public Health Emergency; and

    • The Secretary invokes her/his waiver authority (which may be retroactive), including notifying Congress at least 48 hours in advance; and

    • The waiver includes waiver of EMTALA requirements and the hospital is covered by the waiver.

  • CMS will provide notice of an EMTALA waiver to covered hospitals through its Regional Offices and/or State Survey Agencies.

  • Duration of an EMTALA waiver:

    • In the case of a public health emergency involving pandemic infectious disease, until the termination of the declaration of the public health emergency; otherwise

    • In all other cases, 72 hours after the hospital has activated its disaster plan

    • In no case does an EMTALA waiver start before the waiver’s effective date, which is usually the effective date of the public health emergency declaration.



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