When Can Hospitals Legally Divert Patients to Alternative Screening Sites?

Published 06 April 2020 by Manatt, Phelps & Phillips, LLP

As COVID-19 continues to spread, hospital emergency departments (EDs) must accommodate surges in patient demand while doing their utmost to mitigate the risk of contagion for both patients and practitioners. As clinicians and hospital administrators consider their options, they must be mindful of their obligations under the federal Emergency Medical Treatment & Labor Act (EMTALA), which requires most hospitals to provide a medical screening exam (MSE) to any patient who arrives at the ED and, if necessary, to provide stabilizing treatment. To help providers navigate their EMTALA obligations in the context of the COVID‑19 outbreak, the Centers for Medicare & Medicaid Services (CMS) issued guidance on March 9, 2020, and, more recently, a waiver pursuant to Section 1135 of the Social Security Act on March 30, 2020, that applies to hospitals nationwide.

Click here to view Manatt Health’s EMTALA infographic, which summarizes these authorities to illustrate four circumstances in which hospitals may legally divert patients away from the ED and toward alternative screening sites:

  1. A hospital may redirect ED patients to receive an MSE at an alternative site on the hospital’s campus (i.e., within 250 yards).
  2. A hospital that reaches capacity may go on “diversionary status” by requesting that ambulances not bring any new patients. Even under diversionary status, however, EMTALA requires the hospital to provide an MSE to any patient who arrives at the ED.
  3. State or local officials may establish communitywide protocols that direct ambulances to take certain types of patients to certain hospitals. As in scenario #2, however, each hospital remains obligated to provide an MSE to any patient who arrives at the ED, protocol notwithstanding.
  4. Pursuant to CMS’s recent 1135 waiver, hospitals may redirect ED patients to receive an MSE at an off-campus alternative screening site, as long as (a) the alternative screening site is under the hospital’s ownership or control, and (b) the off-campus diversion is consistent with the state’s emergency plan. (CMS will review, on a case-by-case basis, requests for 1135 waivers permitting hospitals to divert patients to off-campus sites that are not under their ownership or control.)

Hospitals should exercise these options as needed during the COVID‑19 crisis to maximize their ED capacity while minimizing the risks of contagion for both patients and providers.

Click here to access Manatt Health’s COVID-19 resource center with the latest updates and guidance.