How the COVID-19 Pandemic Impacted EMTALA Requirements

A Wisconsin healthcare lawyer reflects on legal challenges from the onset of the coronavirus

By Trevor Kupfer | Reviewed by Canaan Suitt, J.D. | Last updated on December 13, 2023 Featuring practical insights from contributing attorney Sarah E. Coyne

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Sarah E. Coyne is a healthcare attorney who primarily advises small, rural hospitals in Wisconsin—many with capacities hovering around 25 beds. In the normal flow of her business, she could see legal changes coming down the pipeline, take the time to absorb and understand how they would impact the healthcare system, and then distribute that information to her healthcare professional clients. Then, the COVID-19 public health emergency hit the United States.

Of that time, Coyne says, “Now I’m a processor of these changes and am broadcasting them out in as digestible a form as I can and as fast as I can because it’s happening so fast, and it’s in regulatory language that these hospital clients don’t have the time to sit down and figure out.”

Healthcare providers have been looking for legal advice ever since. The biggest change, Coyne says, had to do with healthcare facility obligations under the Emergency Medical Treatment and Labor Act (EMTALA). The law says you can’t turn away a patient or refuse emergency treatment except under limited circumstances.

“It’s a law that, even though it’s fairly simple in concept, even in the best of times, poses a lot of challenges,” Coyne says. “If you then add a surge of people panicking about a disease that isn’t well understood and who are going to emergency departments to be tested, potentially spreading it even further, let’s just say [there were] a whole lot of calls about it.”

Coyne says some hospitals misunderstood the governmental changes, questioning their obligation to comply with EMTALA obligations at all. “One of my key missions communicating with clients [during the COVID-19 pandemic was] that you are still absolutely obligated to comply with EMTALA,” she says.

[EMTALA is] a law that, even though it’s fairly simple in concept, even in the best of times, poses a lot of challenges… One of my key missions communicating with clients [during the COVID-19 pandemic was] that you are still absolutely obligated to comply with EMTALA.

Sarah E. Coyne

The Good News About COVID-19 EMTALA Requirements

Coyne says the changes are a bit of a good news, bad news situation. Let’s start with the good.

“There’s going to be a higher bar before the government considers something a violation, in terms of moving patients to other sites to be tested or transferring patients to other hospitals that are better equipped to deal with COVID-19,” she says.

“Having a lot of rural hospital clients, you know, they have the basics but not a lot of sophisticated testing equipment or ventilation equipment and things like that. So I was glad to see one of the good news pieces being, ‘Do your best and get your patients to places where they will be best treated, and there will be less scrutiny about whether you ticked every box before transfer under EMTALA.’”

Other aspects that have loosened include who is allowed to do exams and where you’re allowed to do the testing of COVID-19 patients.

“Lots of hospitals are setting up drive-thrus or tents in the parking lot, or repurposing a building that wasn’t being used to be a surge testing site. That’s all blessed by the temporary relaxation of EMTALA,” Coyne says. “What isn’t blessed is redirecting patients who are in an emergent condition or need emergent treatment to some other building to test and treat them. That’s a subtle distinction, with a lot of subjectivity and a lot of judgment calls. The way I think of it is, if someone comes in with a cough and fever and wants to be tested, you can reroute those people to a testing site.”

If you’re a small hospital with limited beds, Coyne adds, the government (and CDC) has also loosened that capacity. And they’ve encouraged more virtual visitation or telehealth.

“Providers are going to be compensated for telehealth, whereas before they weren’t, and it used to be limited to rural areas and patients in another medical facility,” she says. “The patient can be in their home, and the provider can communicate with the patient on a smartphone or computer, where they have audio and video. That’s huge in accommodating those sheltering and staying at home while still providing care. Virtual consultation is now another tool in the arsenal.”

The Bad News About COVID-19 EMTALA Requirements

As for the bad news, or, as Coyne puts it, “the hard-to-deal-with news, since it’s absolutely necessary,” every hospital is expected to be able to screen for and immediately isolate patients who meet the screening criteria for COVID-19 testing.

“That’s one thing at a large center and another at a little critical access hospital in the country,” she says. “Other things we’re seeing are shortages of staff, of equipment for respiratorily compromised patients, and of protective equipment for the staff so they don’t get sick and spread it around. I’m used to solving problems for hospitals by giving legal solutions, but for some of those issues, there isn’t a solution; hospitals just have to do the best they can.”

Coyne is also fielding queries from hospitals with OB services since pregnant women may expose themselves to the virus. “So they’re scrambling to do more over the phone or virtually, to figure out if they’re in labor. But there’s no perfect answer there, either, because you don’t want to wait too long,” she says.

“Many have also expressed concern about financial viability. It was already a tough time for rural hospitals, but now they’re being told to shift to inpatient and emergent care and to postpone the more lucrative elective procedures. That is scary, financially,” Coyne adds.

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