Hospital emergency rooms are preparing for the possibility that the COVID-19 epidemic will get so bad that they may need to turn people away, forcing emergency doctors to make wrenching triage decisions about who can be treated and who cannot.
With that possibility looming, health care groups and states afflicted by the outbreak are petitioning the government to stop enforcing a federal law which mandates that emergency rooms screen and stabilize anyone who shows up at their doors.
The law sets strict limitations on when and how a hospital can transfer unstable patients to other hospitals, and there’s a growing push to let hospitals divert those people elsewhere.
The need to relax the mandate on who hospitals must treat was sparked by discussions among emergency physicians, health insurers, and hospitals anticipating a looming tsunami of COVID-19 patients. As hospital emergency rooms get inundated, the thinking goes, doctors will need the freedom to make grim decisions about who needs immediate treatment and who to turn away for testing.
The request would be unthinkable in normal circumstances. That a change to hospital requirements of this scope is even being considered speaks to the extremely dire situation facing medical providers who are overwhelmed by the COVID-19 outbreak.
“In a pandemic, if an emergency department gets overwhelmed, they can’t possibly see everybody,” Robert Bitterman, a health law consultant, told TPM. “Instead of screening everybody who shows up at our doors, we want to be able, in times of true emergencies, to redirect them to another location away from the hospital that might be able to provide the screening.”
The discussion reflects a growing recognition that the U.S. — and not just in Washington, where the outbreak has hit hardest — may be headed to an Italy-like scenario where tough decisions must be made about triage and rationing care.
Some virus-stricken Italian cities have seen overburdened hospitals make horrifying decisions about who to treat. The peak of the epidemic in Wuhan saw patients being treated in hospital hallways as emergency rooms were converted into COVID-19 wards.
“It’s maybe the toughest of all the issues,” Sara Rosenbaum, a health law and policy professor at George Washington University said, comparing it to the other federal requirements that state health departments and hospitals are seeking leniency from. “In the sense this is the sort of bottom-line protection for people in the United States.”
But now federal hospital requirements may prove to be an obstacle for providers who need to make quick decisions about where to screen and stabilize patients, while protecting their facilities from further spread of the virus.
Because of the law, “hospitals have no way to control volume,” Bitterman said. “What we want to be able to do in true emergencies is to be able to send [patients] somewhere else; so maybe the state preparedness body sets up a screening site in a mall parking lot — they want to send people to that screening site as opposed to coming into the emergency department.”
The law — the Emergency Medical Treatment and Labor Act — was passed in 1986 to force hospital emergency departments to provide stabilizing care regardless of a patient’s economic situation or citizenship status.
“People were bleeding to death, moms were having babies on the road,” Bitterman, the health law consultant, told TPM.
But the idea of changing the law to allow emergency rooms to triage care — and to potentially turn away patients for both screening and treatment — has gained steam among states, doctors, and medical associations.
Washington state pushed for the change on Sunday in a wide-ranging request to the federal government for emergency changes to its state Medicaid program, asking the Trump administration to suspend enforcement of the law, known by its acronym as EMTALA.
North Carolina on Wednesday also asked the federal government to waive the law’s requirement so that hospitals can redirect patients to “alternative” locations to be screened.
That kind of shuffling people around would normally be prohibited, but could be allowed in an extraordinary case like a pandemic.
The American Hospital Association told TPM in a statement that the group supported relaxing the requirements — a change that will need to be approved by the Centers for Medicare & Medicaid Services (CMS), which implements the federal government’s major health spending programs.
In a statement to TPM, AHA vice president Nancy Foster said that getting “flexibility” from the federal government “will allow health systems to designate a specific facility to treat patients presenting with suspected COVID-19 cases.” That will slow the spread of the infection and conserve the “scarce” equipment medical professionals use to protect themselves, her statement said.
CMS administrator Seema Verma acknowledged the request on a call with providers Tuesday evening, call participants told TPM, and said the idea was under discussion.
CMS confirmed that it had received TPM’s inquiry about the discussions, but did not provide a response in time for publication.
CMS earlier this week released guidance on EMTALA, but it continued to specify that hospitals “may not tell individuals who have already come to their [emergency department] to go to the off-campus locations” for screening.
“To the extent they want patients who have corona not to infect the entire emergency room, if I were at CMS, I’d ask the hospitals, ‘what’s your alternative?’” Rob Berenson, a health care policy expert at the Urban Institute and former CMS staffer told TPM.
The outbreak hasn’t yet spread everywhere, noted Dr. Mark Langdorf, a professor at UC-Irvine’s Department of Emergency Medicine who’s studied EMTALA enforcement. He warned against eroding “a 50 year history of the ER serving as a true social safety net for medical illness.”
He said at this point, waiving the law would be appropriate on “almost a case-by-case basis, or maybe a county-or-county basis.”
It’s not unprecedented for EMTALA to be relaxed in times of crisis. However, those previous instances have been for national disasters like Hurricanes Irma and Dorian, where the geographic area where enforcement was being suspended was relatively small, Rosenbaum said.
When policy makers were debating in the early 2000s whether to change the law to allow for EMTALA to be waived in times of emergency declarations, Rosenbaum said, the argument for doing so was focused on situations of these localized disasters that overwhelmed hospitals well beyond the point of capacity.
“We’re seeing these phenomena, but we’re seeing it nationwide — and it’s much scarier to look at it nationwide,” Rosenbaum said.
Correction: A previous version of this story inaccurately described Mark Langdorf as the chair of UC Irvine’s Department of Emergency Medicine. He no longer holds that position.