See Something, Say Something: Blowing the Whistle on Hospitals That Turn Away Patients During the COVID-19 Pandemic

As the coronavirus pandemic continues to sweep the country, many patients infected with COVID-19 will need emergency medical care. Hospitals are seeing not only coronavirus carriers, but other patients seeking treatment for different conditions, ailments, and injuries. Although the federal government may enact temporary measures to fight the pandemic, the law is clear; emergency rooms cannot turn away patients needing emergency care, and they cannot retaliate against whistleblowers working in those hospitals who speak up when that happens.

The Emergency Medical Treatment and Labor Act

The Emergency Medical Treatment and Labor Act (EMTALA) requires all hospitals that receive public funding, including Medicare, to provide services to stabilize patients at their Emergency Departments (ED) who have urgent medical conditions, including individuals suspected of having COVID-19, regardless of an individual’s ability to pay and without delaying medical treatment to ask about payment or insurance. However, the facility’s obligations under the law are only to screen and stabilize emergency patients, not to treat them to the point of resolution. Congress enacted EMTALA to address the problem of hospital “patient dumping” – the practice of turning away indigent patients who lack medical insurance or transferring them to other medical facilities before their emergency medical condition has stabilized. A hospital that either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing his or her emergency medical condition violates EMTALA.

Hospitals, even private ones, are covered by the Act if they accept reimbursement from the Medicare health coverage program. However, according to the Department of Health and Human Services’ Center for Medicare and Medicaid Services (CMS), off-campus, hospital-controlled testing sites and community-run testing or screening clinics do not have to comply with EMTALA and so employees at these facilities may not be protected under EMTALA’s whistleblower protections.

Hospitals that violate EMTALA may be subject to civil monetary penalties of up to $50,000 per violation, $25,000 for hospitals with fewer than 100 beds. Because violating EMTALA is a breach of the Medicare provider agreement, the hospital may be excluded from the Medicare program. Individual physicians who violate EMTALA may face civil monetary penalties and potential exclusion from Medicare, too.

EMTALA Obligations and COVID-19 Patient Surges

The Department of Health and Human Services’ Center for Medicare and Medicaid Services (CMS) issued a memorandum on March 9, 2020, related to the coronavirus pandemic. In light of the surge of patients reporting to EDs with known or suspected cases of COVID-19, some hospitals have set up additional locations to perform the required medical screening exam (MSE). The CMS directive states that a hospital may conduct these initial exams in an on-site area separate from the ED but may not require a patient with urgent medical conditions to travel to an off-campus, hospital-controlled site.

EMTALA Whistleblower Retaliation Protections

To encourage hospital employees to report suspected wrongdoing, EMTALA also includes an anti-retaliation provision to protect whistleblowers:

A participating hospital may not penalize or take adverse action against a qualified medical person… or a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section.

The whistleblower provision in EMTALA is intended to increase the likelihood that violations would be reported, and that employees who reported violations would not be punished by the employer hospital. This includes a qualified medical person (QMP) such as a physician, a nurse, or another provider designated as a QMP by the governing body of the hospital. Further, some courts[1] have concluded that EMTALA’s whistleblower protections extend to physicians who have privileges at the hospital but are not considered “employees” of the hospital. Retaliation can include termination of employment, demotion, reduction in pay, or other adverse actions.

Hospital employees who know of or suspect their EDs are illegally turning away patients with emergency medical conditions can report their suspicions to CMS or the Office of the Inspector General. Reporters may remain anonymous if they choose. However, employees should be aware that some courts have held that employees who make internal reports about EMTALA violations would also be protected from retaliation.[2] Be sure to consult with an attorney if you are considering reporting an EMTALA violation to ensure you are protected.

Waivers Change EMTALA Requirements

Employees should also be aware that CMS has the discretion to waive specific EMTALA requirements. For example, on March 13, 2020, CMS began issuing waivers relaxing some EMTALA requirements related to acute patient care, provider licensure, and patient transfers. These waivers allow more rapid responses and the implementation of new operational measures, like exterior tents for screening potential COVID-19 cases, to decrease fatalities and optimize treatment results. EMTALA’s whistleblower protections have not been affected so employees who suspect violations can step forward to report wrongdoing.

Because CMS will likely issue additional waivers as the pandemic continues, it may be challenging to keep up with current requirements. If you are a hospital employee and believe your emergency department is improperly turning away patients or receives patients turned away by another hospital, immediately contact an experienced whistleblower protection attorney to discuss your best options.

[1] Muzaffar v. Aurora Health Care S. Lakes, Inc., 985 F. Supp. 2d 875 (E.D. Wis. 2013) (citations omitted). Accord, Zawislak v. Memorial Hermann Hospital System, No. H-11-1335, 2011 WL 5082422 (S.D. Tex. 2011).

[2] Gillispie v. Regionalcare Hospital Partners, 892 F.3d 585 (3d Cir. 2018).

(*Prior results do not guarantee a similar outcome.)