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.
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