EMTALA Requirements and Options for Hospitals and Their Communities in Disasters

24 August 2009 Publication
Authors: Shirley P. Morrigan

American Health Lawyers Association

By Shirley P. Morrigan

On August 14, 2009, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum and a Fact Sheet which address the applicability of the Emergency Medical Treatment and Labor Act (EMTALA) in a disaster. CMS developed the memorandum and Fact Sheet to help hospitals and their communities in any disaster which might cause a potential surge in the Emergency Department (ED) volume, especially this Fall as related to H1N1 influenza. CMS clarifies various options that are permissible under EMTALA and reassures both hospitals, as well as community and public health officials, of the flexibility available under EMTALA. CMS also summarizes requirements for EMTALA waivers in disasters. CMS expressly states that it expects surveyors to be aware of and understand the flexibilities when they assess a hospital's compliance with EMTALA during a survey.

EMTALA is a federal law that requires all Medicare-participating hospitals with EDs to provide an appropriate medical screening exam (MSE) and, if there is an emergency medical condition, either treat and stabilize the condition or transfer the individual appropriately. CMS again emphasizes the fact that receiving hospitals with specialized capabilities, whether or not they have an ED, may not refuse an appropriate transfer under EMTALA if they have the capacity to treat the person whose transfer is being proposed. This is true even if the receiving hospital believes that the transferring hospital itself has capacity to treat the patient it proposes to transfer. And the list of specialized capabilities is not limited to those listed in the regulations. At times, even general surgery could be a "specialized capability." Although these strict EMTALA requirements still apply, even in disasters, to hospitals with ED, CMS wants hospitals and their communities to understand that EMTALA is not an obstacle to good patient care.

Options for Hospitals that Experience "Extraordinary ED Surges" and Specific Requirements for Each Option

1. The hospital could set up alternative screening sites on the hospital campus.

  • The individual who presents to the ED must be logged in.
  • Redirection may occur outside the entrance to the ED or another place as long as it is conducted by a qualified person (such as an RN).
  • The MSE must be conducted by qualified personnel whose positions (such as physician assistants) have been approved to perform MSEs under the hospital's EMTALA policy and who do not exceed the scope of their State Practice Acts.

2. The hospital could set up screening at off-campus, hospital-controlled sites.

  • Hospitals and community officials may encourage the public to go to other sites besides the hospital for influenza-like illness (ILI).
  • The hospital may not tell people who have already come to the ED to go to the off-campus site for the MSE. As long as the off-campus site is not already a dedicated ED, EMTALA does not apply.
  • The hospital should hold the off-campus site out as an ILI screening center.
  • Staffing must include personnel trained to deal with ILIs.
  • If the individual needs additional medical attention the hospital is required to arrange an appropriate transfer.

3. The community could set up screening clinics at sites not under the control of the hospital.

  • There is no EMTALA obligation here.
  • The hospital may encourage the public to go to these screening clinics instead of the hospital.
  • The hospital may not tell people who have come to the hospital campus to go to such a screening clinic.

EMTALA Waivers
EMTALA waivers are available to allow hospitals to direct patients to an alternate off-campus site, in accordance with a state emergency or pandemic preparedness plan. Hospitals under EMTALA waivers may perform transfers normally prohibited under EMTALA as long as the transfer is necessitated by the emergency.

Hospitals should remember that an EMTALA waiver can only be issued if all of the following are true:

  • The President has declared an emergency or disaster; and
  • The Secretary of HHS has declared a Public Health Emergency; and
  • The Secretary invokes waiver authority; and
  • The waiver includes a waiver of EMTALA requirements.

EMTALA waivers last only as long as the public health emergency in the case of a pandemic infectious disease. Otherwise, in all other cases, EMTALA waivers last seventy-two hours after the hospital has activated its disaster plan. And last, an EMTALA waiver cannot start before the waiver's effective date.

Copyright 2009 American Health Lawyers Association, Washington, DC 

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Shirley P. Morrigan

Retired Partner

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