Obese patients covered under EMTALA, ADA

Hospitals and physician offices must accommodate obese patients or risk running afoul of the Emergency Medical Treatment and Labor Act (EMTALA), the Americans with Disabilities Act (ADA), or the Rehabilitation Act, cautions Roy W. Breitenbach, JD, a partner with Garfunkel Wild in Great Neck, NY.

Hospitals and physician offices are considered public accommodations for purposes of the ADA and, to the extent that hospitals or physician practices are Medicare or Medicaid participants, they also are governed by the requirements of the Rehabilitation Act, Breitenbach explains. Both of these federal statutes prohibit public accommodations or recipients of federal funds from discriminating against persons based on their disability — in this case, extreme obesity. These statutes also require that organizations make "reasonable accommodations" to disabled persons — such as changing policies or procedures, offering auxiliary aids or services, or providing adaptive equipment — that would enable them to receive the same services from the public accommodation that nondisabled people receive.

Breitenbach notes that for the last decade, the question of whether obesity is considered a disability for purposes of the ADA or the Rehabilitation Act has been hotly contested. The answer still is not certain, he says, but the trend is for courts to determine that obesity is a disability in many but not all cases.

"The trend of the cases holds that obesity, in and of itself, is not a disability, unless there is an identified physiological condition underlying and causing the obesity," he says. "If such a physiological condition is the cause of the obesity, then the obesity could be considered a disability if the condition significantly impacts a major life activity, such as walking or working."

Finding a physiological condition that contributes to the obesity is not a high hurdle, and Breitenbach notes that there is no way for you to know whether that condition is met when the patient first enters your hospital. Therefore, there is no way to know up front that certain obese patients are protected by the ADA and Rehabilitation Act.