[Editor’s Note: This column is part of an ongoing series to address reader questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Staci Kusterbeck, Editor, ED Management, 280 Nassau Road, Huntington, NY 11743. Telephone: (631) 425-9760. Fax: (631) 271-1603. E-mail: StaciKusterbeck@aol.com.]

Question: I’m confused about the new policy statement from the Baltimore-based Centers for Medicare & Medicaid Services (CMS) which implies that disaster plans for transferring patients will supercede EMTALA. My question is, whose definition of a disaster? Many hospitals these days use a modified disaster plan when the hospital or the ED is overloaded. For small hospitals, a handful of patients may activate the disaster response. For others it may be 10, 20, or 30 patients. Who decides what definition will be used?

Answer: According to Stephen Frew, JD, risk management consultant at Physicians Insurance Company of Wisconsin, based in Loves Park, IL, the CMS policy statement has resulted in significant confusion. "The reader’s point is well-taken and reflects my own concerns with the policy statement," he acknowledges. "I do not believe that it affirmatively grants any dispensations."

Frew gives the following summation of the CMS statement: Based on a community disaster plan, under some circumstances, it may be permissible to refer patients away to a central bioclearance location. "That is a long way from saying that EMTALA does not apply to disasters," he warns.

It will be CMS officials who determine whether a situation is a disaster, probably on a case-by-case basis, says Frew. "They will probably look at the formal community disaster plan, because that is the only one mentioned in the release," he says.

The statement does not address issues of documentation, transfer procedures, medical screening standards, advance acceptance, duty to accept, or any other EMTALA specific issues, and does not apply to any situation other than bioterrorism, adds Frew.

A hospital may not rely on this statement to create its own internal policies in any way, adds Frew. "At best, if there is a community wide disaster plan, the hospital may be at less risk of EMTALA violations if they are operating under that plan," he says. "It is by no means an assurance."

Question: A computed tomography (CT) scan or other specialized examination is often necessary for patients at our satellite ED, which is 25 miles from our main campus, to determine if an emergency medical condition exists. These patients come by ambulance to the main campus to have this testing done. Must the patient be transferred over only for the specialized exam, and then officially transferred to the ED only if there are positive findings?

Answer: According to Frew, if you provide necessary pre-transfer evaluation and stabilization within your capability, and the main campus is willing to accept the patient, then with proper EMTALA documentation, you can transfer the patient to the main campus, rather than just transferring the patient for testing. "With a 25-mile drive and limited resources back at the rural facility, this seems in the best interest of the patient," he says.


For more information about EMTALA, contact: Stephen Frew, JD, Risk Management Consultant, Physicians Insurance Company of Wisconsin, P.O. Box 15665, Loves Park, IL 61132. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: sfrew@medlaw.com. Web: www.medlaw.com.