Governor Polis Executive Order

Effectively Signed October 31, 2021

D 2021 135

EXECUTIVE ORDER

Authorizing the Colorado Department of Public Health and Environment to Order Hospitals and Freestanding Emergency Departments to Transfer or Cease the Admission of Patients to Respond to the Current COVID-19 Disaster Emergency in Colorado

Pursuant to the authority vested in the Governor of the State of Colorado and, in particular, pursuant to Article IV, Section 2 of the Colorado Constitution and the relevant portions of the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., including C.R.S. § 24-33.5-704.5(1)(e)(II), I, Jared Polis, Governor of the State of Colorado, hereby issue this Executive Order authorizing the Colorado Department of Public Health and Environment (CDPHE) to order hospitals and freestanding emergency departments to transfer or cease the admission of patients to respond to the current disaster emergency due to coronavirus disease 2019 (COVID-19) in Colorado.

I. Background and Purpose

On March 5, 2020, CDPHE’s public health laboratory confirmed the first presumptive positive COVID-19 test result in Colorado. I verbally declared a disaster emergency on March 10, 2020, and on March 11, 2020, I issued the corresponding Executive Order D 2020 003, as amended and extended. On March 25, 2020, I requested that the President of the United States declare a Major Disaster for the State of Colorado, pursuant to the Stafford Act. The President approved that request on March 28, 2020. On July 8, 2021, I rescinded Executive Order D 2020 003, as amended and extended, and issued Executive Order D 2021 122, the Colorado COVID 19 Disaster Recovery Order, which memorialized and continued the declaration of disaster, pursuant to C.R.S. § 24-33.5-704(4), from Executive Order D 2020 003, as amended and extended.

My administration, along with other State, local, and federal authorities, has taken a wide array of actions to mitigate the effects of the pandemic, prevent further spread, and protect against overwhelming our health care resources. Despite significant progress, there has been an increase in COVID-19 cases, largely due to the highly contagious Delta variant and the 20% of Coloradans who have yet to get the highly effective, safe vaccine. As a result, the number of persons seeking medical treatment at hospitals may exceed the capacity of any given hospital. The State faced this same scenario in November 2020, when I first issued this Executive Order. CDPHE may once again need to order hospitals who have reached capacity or are reasonably anticipated to reach capacity during the duration of this Executive Order to cease admitting patients and may also need to transfer patients to a separate facility without first obtaining the individual’s or the separate facility’s written or informed consent for such transfer. The transfer of patients from hospitals that have reached capacity or are reasonably anticipated to reach

Executive Order D 2021 135

October 31, 2021

Page 2 of 4

capacity to other specified care facilities will help to ensure that Coloradans have adequate care as we continue to combat COVID-19 and promote public health and protect the ability of hospitals to serve those with COVID-19 and other conditions. This Executive Order is particularly urgent at this moment in the pandemic because statewide hospital capacity is less than 10%.

C.R.S. § 24-33.5-704.5(1)(e)(II) specifically empowers the Governor, in the event of an emergency epidemic that has been declared a disaster emergency, to act by Executive Order to order hospitals “to transfer or cease admission of patients or perform medical examinations of persons.”

The Federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, requires hospitals receiving Medicare funds to provide appropriate medical screening to determine whether a patient has an emergency medical condition. EMTALA prohibits a hospital from transferring a patient with an emergency medical condition unless and until that condition has been stabilized. One of the purposes of EMTALA is to prevent hospital emergency departments from “dumping” patients who are unable to pay. EMTALA also states that “[t]he provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” 42 U.S.C. § 1395dd(f). The Secretary of Health and Human Services and the Centers for Medicare and Medicaid Services (CMS) waived 42 U.S.C. § 1395dd(a) to give hospitals the ability to screen patients at a location offsite from the hospital’s campus to prevent the spread of COVID-19. This Executive Order is not intended to conflict with EMTALA, and hospitals must still comply with all non waived sections of EMTALA.

This Executive Order authorizes CDPHE to order hospitals and freestanding emergency departments to transfer or cease the admission of patients to respond to the current rise in cases due to COVID-19 in Colorado within the requirements of federal law.

II. Directives

A. I authorize CDPHE to determine whether a hospital or freestanding emergency department is at, or reasonably anticipated to reach, capacity. CDPHE is then authorized to take the following actions, as necessary:

1. Direct the hospital or freestanding emergency department to cease admitting patients and direct any persons thereafter seeking treatment to another hospital or facility designated by CDPHE;

2. Direct the transfer of patients from the hospital or freestanding emergency department to another hospital, skilled nursing facility, dormitory, alternative care facility, or other facility designated by CDPHE. CDPHE may direct the transfer of patients without first obtaining the patient’s written or informed consent to such a transfer; and

Executive Order D 2021 135

October 31, 2021

Page 3 of 4

3. Direct a hospital, skilled nursing facility, or other facility to accept patients transferred from a hospital or freestanding emergency department pursuant to this Executive Order.

B. A hospital must comply with the non-waived sections of EMTALA, including the requirements to provide stabilizing treatment within the hospital’s capabilities and capacity prior to the initiation of a transfer to another hospital, and to provide a medical screening examination to any individual who comes to the emergency department and requests examination or treatment.

C. Hospitals and freestanding emergency departments shall not consider a patient’s insurance status or ability to pay when making transfer decisions pursuant to this Executive Order.

D. Hospitals, physicians, health insurers or managed health care organizations, health care providers, public health workers, or emergency service providers that in good faith comply completely with this Executive Order shall be immune from civil or criminal liability for any action taken to comply with this Executive Order pursuant to C.R.S. § 24-33.5-711.5(2).

E. A person receiving care in a hospital or freestanding emergency department who is transferred to another hospital or facility pursuant to this Executive Order is deemed to have an emergency medical condition, and all services for the transfer and treatment at the receiving facility are considered to be emergency services for purposes of C.R.S. § 10-16-704(5.5), including the in network cost sharing benefits and consumer protections against balance billing and the prohibition against prior authorization.

F. I direct CDPHE and the Colorado Division of Insurance to work with carriers, hospitals, freestanding emergency departments, other facilities, and any entity that has transferred or received patients pursuant to this Executive Order to develop methods of identifying patients transferred or received pursuant to this Executive Order to ensure that those patients are protected by the consumer protections set forth in Section II.E. of this Executive Order. If necessary, CDPHE may direct carriers, hospitals, freestanding emergency departments, facilities, transporting entities, and any other entity that has transferred or received patients pursuant to this Executive Order to take certain actions to ensure that CDPHE is able to identify those patients.

G. Employers and third party administrators of self-funded health insurance programs that are governed under the Federal Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., are strongly encouraged to take all necessary steps to protect consumers enrolled in their plans from being balance billed by any hospital, facility, or transferring entity if those consumers are transferred pursuant to this Executive Order.

Executive Order D 2021 135

October 31, 2021

Page 4 of 4

III. Duration

This Executive Order shall expire thirty (30) days from October 31, 2021, unless extended further by Executive Order.

GIVEN under my hand and

the Executive Seal of the

State of Colorado, this thirty

first day of October 2021.

Jared Polis

Governor