Reader Question

There are exceptions to EMTALA during disasters

Question: I’ve heard that the final Emergency Medical Treatment and Labor Act (EMTALA) states that the federal Centers for Medicare & Medicaid Services (CMS) will not sanction hospitals for inappropriate transfers during a national emergency if the hospital is the area affected by the emergency. Does a large-scale disaster in our community, such as an airliner crash, qualify? Should we have a procedure in place to suspend EMTALA during major emergencies?

Answer: It is not true that EMTALA will be overlooked during a national emergency or that you can unilaterally "suspend" EMTALA in your institution because of one, says M. Steven Lipton, JD, an attorney specializing in EMTALA interpretation with the law firm of Davis Wright in San Francisco.

There is a grain of truth to this misconception, however. Lipton says the idea is based on a passage in the final EMTALA rule that states that "sanctions under EMTALA for an inappropriate transfer during a national emergency do not apply to a hospital with a dedicated emergency department located in an emergency area, as specified in section 1135(g)(1) of the Act. In the event of such a national emergency, CMS would issue appropriate guidance to hospitals."

But what exactly does that mean in a practical sense? Lipton says the answer is found partly in the rule’s explanation of how that passage came to be. When CMS was collecting comments on EMTALA and considering changes, one commenter referenced the recently issued CMS guidance, in the form of letters to regional administrators and state survey agencies, regarding EMTALA responsibilities in the event of a bioterrorist attack. The commenter believed that the guidance might be viewed as being inconsistent with a hospital’s statutory responsibility to provide screening services under EMTALA, and suggested that the regulatory language be revised to reflect the guidance so that hospitals that follow it would not be at risk for a citation of noncompliance with EMTALA.

In the final rule, CMS wrote, "We agree that hospitals should be informed of their EMTALA responsibilities in the event of a bioterrorist attack or other national emergency. We also believe the commenter’s suggestion is consistent with the intent of section 143 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. 107-188, enacted June 12, 2002) . . . ," which allows health care providers to forego some standard obligations in order to respond to a national crisis. Then the rule states that sanctions may not be handed out in some circumstances involving a national emergency.

"So the [Department of Health and Human Services] Secretary has the ability to waive sanctions, but that does not mean EMTALA does not apply," Lipton explains. "And we’re only talking about waiving sanctions for inappropriate transfer. That’s all that’s involved here. They don’t say anything about waiving sanctions for any other kind of EMTALA violation."

Lipton says the definition of a "national emergency" is unknown for the purposes of knowing when transfer sanctions might be waived. But he says that the explanation in the final rule implies a significant disaster with national implications, such as the bioterrorism specifically mentioned by CMS. A more typical community disaster is not likely to be included, he says, even if it strains the local hospital’s abilities to provide care.

And even in the narrowly defined circumstances in which CMS might not sanction a hospital for EMTALA transfer violations, there is little that risk managers can do to take advantage of this promise. The hospital always is obligated to comply with EMTALA, Lipton says, and this passage in the final rule does not change that.

Even alerting emergency department staff to this provision could be a bad move for the risk manager, he suggests, because the details may be lost in translation and staff may seize on this idea to cut corners with EMTALA during a crisis. "This is just an acknowledgment from CMS that in these rare circumstances they might understand why you couldn’t comply with all the necessary EMTALA paperwork for a transfer. They’re saying they know that can happen and they might not penalize you for it, but only in these rare cases," Lipton says.

"It would be a serious mistake to think that you can just tell CMS your ED was swamped and you were in disaster mode so you couldn’t comply with EMTALA. They won’t go for that, and you shouldn’t even hint to your emergency staff that they can use that as an excuse," he adds.