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Table of Contents
Authors: Robert A. Bitterman, MD, JD, FACEP; and Todd B. Taylor, MD, FACEP
Early in the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) reminded hospitals that their responsibilities under the Emergency Medical Treatment and Labor Act (EMTALA) had not changed as a result of the pandemic.1
CMS advised that hospitals could set up alternative medical screening sites on their campuses and still comply with EMTALA. An alternative medical screening site could include a van or tent outside the emergency department, but still on campus where patients with suspected COVID-19 or other respiratory infections could be screened prior to or instead of entering the emergency department. Even screening patients with suspected COVID-19 in their cars was an acceptable alternative during the pandemic.
Although this approach to setting up alternative screening sites may have seemed new, hospitals have always had a degree of flexibility with how they screen patients. For example, some hospitals screen pregnant women past 20 weeks’ gestation in a labor and delivery triage rather than in the main emergency department. Similarly, children can be screened for specific medical conditions in pediatric emergency departments. EMTALA recognizes that hospitals may have multiple locations (ie, dedicated emergency departments) for delivering condition-specific care; these dedicated areas, including hospital-owned urgent care and walk-in clinics, are still subject to full EMTALA obligations.
However, when the pandemic began overwhelming some US hospitals, CMS and the Department of Health and Human Service (HHS) issued a blanket section 1135 waiver that temporarily modified EMTALA’s emergency department medical screening examination requirement.2 Issued on March 30, 2020, the waiver became effective retroactively to March 1, 2020, and remained in effect until the pandemic was declared over on May 11, 2023.
The 1135 waiver allowed hospitals to redirect patients away from the emergency department to an off-campus location for their medical screening examinations, provided that:
This waiver was expressly limited to redirection of the medical screening examination. Hospitals remained obligated to comply with all other requirements of EMTALA throughout the entire pandemic.
Without the waiver, hospitals would not be allowed, under any circumstance, to direct patients to an off-campus location — urgent care centers, public health clinics, psychiatric crisis centers, or any other clinical facilities — for their medical screening examinations. As noted, hospitals are allowed to direct patients with specific medical needs to on-campus departments outside of the main emergency department.
Although perhaps well intended, this CMS EMTALA waiver was largely ineffective because, to our knowledge, no hospital in the country implemented off-campus medical screening redirection during the pandemic.
The COVID-19 pandemic was a time of huge strain on the US health care system, and despite only a limited waiver, EMTALA did not appear to impede the delivery of care. Much of this efficient delivery is to the credit of relentlessly dedicated emergency care workers, some of whom lost their lives from providing care. Their dedication is perhaps the greatest legacy of the pandemic.
Emergency physicians and hospital emergency departments need to know five things to appropriately respond to future pandemics or other disasters.
Every state requires state-licensed hospitals to adopt, implement, and enforce written disaster preparedness plans. Learn your state law and practice your hospital disaster plan.
CMS requires all Medicare-participating hospitals to develop and maintain a comprehensive emergency preparedness program, using an all-hazards approach. See CMS’ “Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers, 81 FR 63860.”
The federal regulations for emergency preparedness can be found at 42 CFR §482.15; the interpretive guidelines that explain emergency preparedness requirements can be found in the “State Operations Manual Appendix Z — Emergency Preparedness for All Provider and Certified Supplier Types.” Begin with the interpretative guidelines and then read the regulations at §482.15. If you need more background information, read the federal register.
Waiver of any EMTALA rules and regulations is rare and generally quite limited, but it is authorized under §1135 of the Social Security Act, the so-called section 1135 waiver.
All five of these prerequisites must be met before any waiver of EMTALA can be implemented.
Additionally, the secretary of HHS must provide a certification and at least 2 days’ notice to Congress about the provisions waived or modified, the geographic area that the waiver applies to, and how long the changes will remain in effect. Typically, CMS notifies the hospitals that will be affected by an EMTALA waiver through its regional offices and state survey agencies.
The secretary of HHS can issue waivers on a blanket basis when all similarly situated hospitals in an emergency area need such waivers. Otherwise, each individual hospital impacted by a federal emergency must request a section 1135 waiver of EMTALA.
When HHS issues a blanket waiver, like during the COVID-19 pandemic, hospitals are not required to initiate their disaster plans. However, when a hospital requests a waiver — which can happen during local floods, hurricanes, and tornados — the hospital must launch its disaster plan before the waiver can be implemented.
CMS can allow both or just one of these provisions. For example, during the COVID-19 pandemic, CMS allowed only the redirection to off-campus sites for medical screening examinations; it never waived EMTALA’s transfer provisions.
Additionally, the federal statute states that the waiver is applicable only if a hospital’s actions do not discriminate against individuals based on their ability to pay or their payor source. Nondiscrimination is the core mandate of EMTALA and cannot be waived. Importantly, the waiver is for sanctions against hospitals and does not mean hospitals will not be investigated to determine if any nonwaived provisions were violated.
If HHS did not issue a blanket waiver, the hospital must petition CMS for an EMTALA waiver, either when planning to activate or after activating its disaster plan. Before requesting an EMTALA waiver, a hospital must be sure that its state has activated its pandemic or emergency preparedness plan. Any EMTALA waiver request and hospital disaster plan must be done in concert with the state’s emergency plan.
CMS has more information about how to request a section 1135 waiver on their website. Other useful information from CMS about section 1135 waivers can be found at:
More information on starting the waiver request can also be obtained by emailing CMS at 1135waiver@cms.hhs.gov. Emails should include the hospital name, address (at least city and state), and contact information so that CMS knows to which of its regional offices to route the request.
Begin with the CMS EMTALA interpretive guidelines, §489.24(a)(2). They explain the 1135 waiver with respect to EMTALA and include concise sections on:
Next, review the CMS 1135 waiver. It explains how a section 1135 waiver can be implemented to deal with pandemics or natural disasters.
Two comprehensive and practical CMS memoranda on pandemic-related EMTALA issues in hospital emergency departments that also have excellent general applicability include:
Additional resources for nonpandemic disasters — such as tornados, floods, or hurricanes — include:
In general, regardless of any waiver, hospitals should continue to follow all the usual EMTALA requirements unless they somehow significantly impede patient care.
