Hospital and public health officials who worry about being deluged this fall by sick and worried well patients fearing H1N1 now have comforting federal guidance on how to re-direct crowds without violating the law.
First, jammed hospital emergency departments can set up alternate screening sites elsewhere on campus, with personnel stationed outside the emergency department to log in and redirect patients seeking care to that alternate site.
This triage system is acceptable as long as the personnel are qualified physicians, RNs, physician's assistants or nurses trained to perform such exams.
Second, hospitals may set up screening at an off-campus site if it is controlled by the hospital. And hospital and community officials may encourage the public to go to these sites instead of the hospital for screening for influenza-like illness.
Third, hospitals and community health officials may encourage the public to go to those sites instead of the hospital for influenza screening.
And fourth, the required medical screening exam does not need to be an extensive work-up in every patient's case.
The guidance was issued in a fact sheet distributed to hospitals by the Centers for Medicare and Medicaid Services in response to hospital and agency concerns.
However, there are some important caveats.
A hospital may not tell individuals who have already come to the ED to go to the off-site location for the exam. And the hospital cannot announce or advertise the off-site location as a place that provides care for general, urgent, unscheduled emergency medical conditions, other than those involving influenza-like illness.
Hospital and public health officials concerns stem from requirements under the federal Emergency Medical Treatment and Labor Act (EMTALA). The law says hospital emergency rooms that participate in the Medicare program must provide medical screening exams to any patients who arrive at their doors, regardless of the patients' ability to pay.
If patients have an emergency medical condition, the hospital must treat and stabilize the patient within its capability or transfer to a hospital that does have the capability and the capacity to do so. Receiving hospitals with appropriate capabilities and capacity cannot refuse those transfers.
But in recent months, hospitals, state health departments, and federal emergency agencies wrote and called CMS and "expressed significant concerns" about their ability to comply with legal requirements in the event of an H1N1 surge, according to a CMS memo from Thomas Hamilton, director of CMS' Survey and Certification Group, in a memo sent to hospitals nationally.
"Many stakeholders perceive that EMTALA imposes significant restrictions on hospitals' ability to provide adequate care when EDs experience extraordinary surges in demand," he said.
Hamilton's memo clarifies the law, spelling out several options that are permissible under EMTALA, "to reassure the provider community and public health officials that there is existing flexibility under EMTALA."
Matt Wall, associate general counsel for the Texas Hospital Association, said his group was one with concerns about how it would manage a widespread outbreak of illness. But, he said, this memo "clarified" the rules and reassured his organization.
"One of the beneficial aspects of this memo was the explanation that on your hospital campus, you can set up alternate screening sites. And this will help relieve some of the overcrowding in the actual emergency department," he said.
The other bit of relief came in guidance that hospitals and public health officials can "publicly recommend and encourage the public to go to an off-campus site that is controlled by the hospital. That will help relieve some of the bottlenecks in the emergency departments too."
Hamilton's fact sheet also noted that communities may set up screening clinics that are not under the control of the hospital, and those sites are not under EMTALA obligation. However, a hospital may not tell individuals who have already come to their emergency departments to go to the off-site location.
A spokeswoman for the Texas hospital group, Amanda Engler, says the organization is happy that CMS "is addressing this situation earlier rather than later."
CMS' fact sheet did not address what hospitals should tell people who call the hospitals asking where they should go.
In California, spokesman for the state Department of Public Health, Ken August, notes that worries about how to triage patients in the event of an H1N1 scare this fall has not been an issue, and California was not one of those states with significant concerns.
"For us, disasters and other emergencies come annually, whether they are earthquakes, wildfires, or floods, so this kind of a question has been raised many times before," August says. In California, state law allows public health officers in each county great latitude to be flexible with rules governing such situations, he says.