Getting EMTALA Right During the Viral Pandemic

Not all waivers are created equal.

Last week’s article briefly discussed the Emergency Medical Treatment & Labor Act (EMTALA).

Here is a more detailed discussion. The legal analysis here is among the more difficult I’ve worked on in recent times. My colleagues and I spent hours trying to be sure we had it right, and during the debate, our interpretations evolved. To be clear, my practical advice remains unchanged. During the pendency of this crisis, do what’s right, and deal with the legal consequences later. But I understand that you may want to know the law and the possible consequences. 

On Friday, March 13, U.S. Health Secretary Alex Azar issued a number of waivers to Medicare and Medicaid requirements.  https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx (You can also access a list of helpful additional waiver-related links here:   https://www.fredlaw.com/wp-content/uploads/2020/03/Health-Law-Webinar-Flyer-032020.pdf 

Section 1.c of the waiver relates to EMTALA. The language is somewhat dense, but it is not really a true “waiver” of EMTALA. There are two significant catches. First, rather than affirmatively waiving any of the requirements of EMTALA, this waiver permits the government to grant waivers. This is weird and confusing, but the waiver by itself doesn’t suspend anything. It allows hospitals to request a waiver of some of EMTALA’s requirements. The provision is really just authorization to ask for a waiver. 

Second, the only parts of EMTALA that may be waived are those that relate to transferring patients to another facility. If the hospital seeks and receives a waiver under the directive, it may transfer a patient to another location to get medical screening while following a state emergency preparedness plan, or it may transfer a patient who has not yet been stabilized because of circumstances related to the COVID-19 pandemic, without risk of penalties under EMTALA. However, as we discussed last week, if a patient presents in the ED and the emergency room physician is trying to determine whether to place him or her in observation or send them home, there is no protection for a decision to send the patient home, even if that decision is motivated by a desire to protect the patient, or free up beds for others with more life-threatening symptoms. 

There are several important lessons here. First, if you Google “EMTALA waiver,” you will find articles that claim all of EMTALA is suspended. Google is still an imperfect legal research tool. I certainly use it, but I never, ever rely on any article it uncovers. You need to independently verify the information. Second, this analysis is hard enough now that law firms are split on how to interpret it. I understand that. I am split on how to interpret it. Third, understand that there are two types of waivers. Some are true waivers; they completely suspend rules. Others are merely permission to ask for permission. The EMTALA waiver falls into the latter category. It may be better to call it a “solicitation for request for waivers.”

It is fair to ask how much to focus on the detailed legal analysis. While I am happy to dig into the details on all of these regulations for clients,  and have been doing so for weeks, I remain convinced that in many situations, the best approach is to focus on the big picture during the pendency of this crisis. If you are facing a quick decision, choose the path that helps the most people, and sort out the legal issues afterward.

My wish is that Congress would pass a law saying something like “to the extent that a person or entity takes an action in good faith, motivated primarily by a sincere intent to improve the delivery of healthcare to patients during the COVID-19 emergency, all statutes and regulations, whether civil or criminal, that would otherwise interfere with or limit actions, are suspended.” 

It’s a big ask, but we’re facing a big crisis.

As we confront it, I hope you stay healthy, and stay sane.

Programming Note: Listen to David Glaser’s live reporting every Monday on Monitor Mondays, 10-10:30 a.m. EST.

Facebook
Twitter
LinkedIn

David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

Related Stories

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

2026 IPPS Masterclass 3: Master MS-DRG Shifts and NTAPs

2026 IPPS Masterclass Day 3: MS-DRG Shifts and NTAPs

This third session in our 2026 IPPS Masterclass will feature a review of FY26 changes to the MS-DRG methodology and new technology add-on payments (NTAPs), presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 14, 2025
2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

This second session in our 2026 IPPS Masterclass will feature a review the FY26 changes to ICD-10-PCS codes. This information will be presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 13, 2025
2026 IPPS Masterclass 1: Master ICD-10-CM Changes

2026 IPPS Masterclass Day 1: Master ICD-10-CM Changes

This first session in our 2026 IPPS Masterclass will feature an in-depth explanation of FY26 changes to ICD-10-CM codes and guidelines, CCs/MCCs, and revisions to the MCE, presented by presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 12, 2025

Trending News

Featured Webcasts

The Two-Midnight Rule: New Challenges, Proven Strategies

The Two-Midnight Rule: New Challenges, Proven Strategies

RACmonitor is proud to welcome back Dr. Ronald Hirsch, one of his most requested webcasts. In this highly anticipated session, Dr. Hirsch will break down the complex Two Midnight Rule Medicare regulations, translating them into clear, actionable guidance. He’ll walk you through the basics of the rule, offer expert interpretation, and apply the rule to real-world clinical scenarios—so you leave with greater clarity, confidence, and the tools to ensure compliance.

June 19, 2025
Open Door Forum Webcast Series

Open Door Forum Webcast Series

Bring your questions and join the conversation during this open forum series, live every Wednesday at 10 a.m. EST from June 11–July 30. Hosted by Chuck Buck, these fast-paced 30-minute sessions connect you directly with top healthcare experts tackling today’s most urgent compliance and policy issues.

June 11, 2025
Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Substance abuse is everywhere. It’s a complicated diagnosis with wide-ranging implications well beyond acute care. The face of addiction continues to change so it’s important to remember not just the addict but the spectrum of extended victims and the other social determinants and legal ramifications. Join John K. Hall, MD, JD, MBA, FCLM, FRCPC, for a critical Q&A on navigating substance abuse in 2025.  Register today and be a part of the conversation!

July 16, 2025

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24