COVID-19 and the National State of Emergency: The Impact on Hospitals

Hospitals are already feeling the impact of the coronavirus (COVID-19) and that impact is expected to get worse before it gets better. On March 13, 2020, President Trump declared a national emergency under the Stafford Act, freeing up funds which can be used to pay medical personnel, purchase medical supplies, establish additional medical treatment arrangements and sites, and ideally bolster the hospital infrastructure within the United States to better withstand the expected tidal wave of patients. Specifically, once a President declares a national emergency, the Federal Emergency Management Agency (FEMA) can be mobilized and direct its disaster funds to the states to address the pandemic.

While the government's focus is on enabling the management of this health crisis, hospitals must also be cognizant throughout of their regulatory obligations. While CMS has indicated some relaxation of certain requirements may be on the horizon, this hyper-regulated industry cannot ignore the myriad of regulatory parameters in addressing and preparing for COVID-19.

For example, hospitals cannot legally turn away patients unless they formally go on diversionary status due to insufficient capacity, under the Emergency Medical Treatment and Labor Act (EMTALA). The Centers for Medicare and Medicaid Services (CMS) clarified on March 9, 2020 that EMTALA compliance means that hospital must be equipped and staffed to appropriately screen for COVID-19 and to immediately identify, isolate and treat infected patients. Some interesting aspects of this guidance include:

• Smaller hospitals may not have the capacity to adequately screen for or address COVID-19, in which case those facilities who do have this capacity are required to accept patients in transfer
• It is permissible to set up alternate testing sites around the hospital for the medical screening exam—outside of the emergency department
• Hospitals may set up sites off campus for screening of influenza-like illness, but may not hold these out as urgent care or emergency departments, and may not redirect patients from the emergency department to the off-campus screening sites
• If a patient meets the screening criteria for COVID-19, the patient is to be immediately isolated
• Hospitals are expected to follow guidance from the Centers for Disease Control (CDC) which currently require reporting to and coordinating with state health officials
• Whether transfers between hospitals are appropriate under EMTALA will be evaluated in light of then-current CDC guidance on COVID-19

EMTALA is just one of many legal pathways for enforcement of hospital requirements in the midst of this crisis—hospitals must also follow all other legal regulations (e.g., the Conditions of Participation for Hospitals and Critical Access Hospitals). On March 4, 2020, CMS announced that it was suspending all non-emergency regulatory surveys other than those related to infection control and the guidelines that would be used in surveying compliance in light of COVID-19 including a detailed checklist of measures that the hospitals should be implementing. Among other things, surveyors will be looking for updated infection control policies and procedures, rigorous hand hygiene, personal protective equipment, transmission-based precautions, laundry management, and appropriate use of antibiotics and immunizations.

Some hospitals have implemented protective measures such as prohibiting visitors or requiring visitor health clearance, establishing quarantine areas within the hospital, arranging for more staff, supplies, personal protective equipment, and other measures. CMS has noted that some of the regulatory requirements are challenging and that hospital systems will be under significant strain. It is yet to be determined whether the declaration of a national emergency will provide funding to lessen that strain.

For more information on how the impact of COVID-19 can affect your facility, contact your Quarles & Brady attorney or:

• Sarah E. Coyne: (608) 283-2435 / sarah.coyne@quarles.com