The Center for Medicare & Medicaid Services (CMS) issued a Memorandum on August 14, 2009, in response to concerns from hospitals (and others) that they may have difficulty complying with the requirements of the Emergency Medical Treatment & Active Labor Act (EMTALA) if projections are correct that there will be a surge in Emergency Department volume based upon the H1N1 influenza.

CMS has provided the following options:

A hospital may set up alternative screening sites on the hospital’s campus to perform medical screening examinations (MSE).

In this situation, after a patient is logged in with the Emergency Department (ED) (either inside the ED or outside the ED entrance), the patient may be redirected to another location on campus where the MSE will take place. The person doing the “redirecting” must be sufficiently qualified to recognize individuals who are in obvious need of immediate treatment in the ED itself (such as a registered nurse).

If the patient is determined to have an emergency medical condition (EMC), the general EMTALA rules thereafter apply.

Remember: The scope of an MSE varies depending upon the patient’s condition. It may be as simple as a few well-directed questions in which both the qualified person and the patient agree that the patient is not presenting for an EMC to a complex assessment that requires drawing upon other resources of the hospital.

A hospital may set up screening sites at off-campus hospital-controlled locations.

In this situation, hospitals (and community officials) may encourage the public to go to designated locations in the community – instead of the hospital – for screening for an influenza-like illness (ILI). These sites should be held out as an "ILI Screening Center” and not as a location that provides urgent, unscheduled care. A hospital may not direct an individual to an off-campus location for an MSE once the patient has presented to the hospital's ED.

If the patient is determined to have an EMC, arrangements must be made for an appropriate referral/transfer consistent with the Medicare Conditions of Participation. The EMTALA regulations will not apply unless the off-campus location has previously been recognized as a dedicated ED of the hospital.

Communities may set up screening clinics at sites not under the control of a hospital.

In this situation, EMTALA will not apply. However, a hospital may not direct an individual to a screening clinic site once the patient has presented to the hospital’s ED; rather, hospital ED personnel must perform the MSE.

A waiver may be granted in limited circumstances.

A waiver may be granted in the event the President declares an emergency or disaster; and the Secretary of Health & Human Services ("HHS") has declared a public health emergency; and the Secretary of HHS invokes his/her waiver authority (which may be retroactive) including notifying Congress at least 48 hours in advance; and the waiver includes waiver of EMTALA requirements; and the hospital is covered by the waiver. As is apparent, this is not a “case-by-case” alternative; rather, this will be regional and/or national waiver. Accordingly, it is our sincere hope that this alternative will not need to become an option.