April 09, 2020

CMS Breathes Life into HHS EMTALA Waiver

On March 30, CMS announced its Hospitals Without Walls initiative which waives enforcement of the Emergency Medical Treatment and Labor Act (EMTALA), permitting hospitals, psychiatric hospitals, and critical access hospitals with a dedicated emergency department to perform medical screening exams at locations offsite from the hospital’s campus to prevent the spread of COVID-19, so long as it is not inconsistent with a state’s emergency preparedness or pandemic plan.  CMS notes in separate guidance that hospitals continue to be bound by EMTALA regarding transfers of individuals with an unstable emergency medical condition. The Hospital Without Walls initiative also waives other CMS requirements, including certain conditions of participation, provider-based department requirements, and physical environment requirements. The waiver also allows hospitals to provide inpatient and outpatient hospital services at remote locations or sites not considered part of a healthcare facility, such as ambulatory surgery centers, hotels, and community facilities. 

The waiver of EMTALA enforcement is applicable only to actions that do not discriminate on the basis of an individual’s source of payment or ability to pay, and is effective until the termination of the declaration of emergency related to the COVID-19 pandemic. Hospitals should continue to abide by EMTALA’s prohibition on the transfer of individuals with unstable emergency medical conditions.