Biomedical Engineering Reference
In-Depth Information
that point, administrative and case law involving
EMTALA had not contemplated public health
emergencies. The statute itself contains no sugges-
tion that its obligations would vary in the face
of a community-wide emergency; nevertheless,
when such events began to seem more likely,
concerns and questions arose.
62
Although it reit-
erated to some extent the continued application
of EMTALA's obligations, the 2001 CMS letter
suggested that there was an exception to the
stabilization requirement if a community response
plan is in place.
63
Moreover, the letter indicated
that a hospital's initial screening obligation might
be limited if a community-response plan desig-
nated certain facilities to handle particular cate-
gories of patients in a bioterrorism situation, and
if the hospital in question is not such a designated
facility.
64
The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002
65
artic-
ulated a more formal policy regarding EMTALA
obligations in an emergency situation. The legis-
lation authorized the Secretary of the Department
of Health and Human Services (DHHS) to waive
sanctions for EMTALA violations when the viola-
tions when the violation comes from an inappro-
priate transfer of an unstable patient in public
health emergency circumstances (as defined by a
presidential declaration). This potential limitation
on EMTALA obligations during a public health
emergency is more circumscribed than what the
2001 CMS letter suggested, as it does not indicate
a reduction in the screening obligation (nor does it
eliminate private individuals' right of action).
The final EMTALA rule promulgated on
September 9, 2003,
66
also addressed public health
emergency situations. Similar to the 2001 CMS
letter and the 2002 Public Health Security and
Bioterrorism Preparedness and Response Act, this
final rule did not answer definitely the question
regarding the extent of EMTALA obligations in a
crisis situation. The preamble to the rule references
the 2001 CMS letter, and notes that the final rule
adds a public health emergency provision to the
EMTALA regulations.
67
The new provision states
that “sanctions under EMTALA for an inappro-
priate transfer during a national emergency do not
apply to a hospital with a dedicated emergency
department located in an emergency area .In
the event of such an emergency, CMS would issue
appropriate guidance to hospitals.”
68
CMS Interpretive Guidelines issued to State
Survey Agency Directors on May 13, 2004,
69
seemed to restate the position taken in the
2001 CMS letter. Referencing the new regula-
tory provision implemented with the 2003 final
rule,
70
the guidelines state that, in the event
of a national emergency or crisis, if state or
local governments have implemented community-
response plans designating certain facilities to
62
New indications that hospitals are not adequately prepared for bioterrorism or similar incidents have heightened such concerns.
See
Joint Comm'n on Accreditation of Healthcare Orgs., Health Care at the Crossroads: Strategies for Creating
and Sustaining Community-wide Emergency Preparedness Systems,
available at
www.jcaho.org/about
+
us/public
+
policy
+
initiatives/emergency
+
preparedness.pdf (last visited Sept. 20, 2004); U.S. General Accounting Office, Hospital Preparedness:
Most Urban Hospitals Have Emergency Plans but Lack Certain Capacities for Bioterrorism Response, GAO-03-924, at
1 (Aug. 2003),
available at
www.gao.gov/new.items/d03924.pdf (last visited Sept. 25, 2004).
63
Letter to Regional Administrators,
supra
note 61.
64
Id
.
65
Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116 Stat. 594 (codified as
amended in scattered sections of 7, 21, 29, 38, 42, 47 U.S.C.).
66
Clarifying Policies Related to the Responsibilities of Medicare-Participating Hospitals in Treating Individuals With Emergency
Medical Conditions, 68 Fed. Reg. 53,222 (Sept. 9, 2003) (to be codified at 42 C.F.R. pts. 413, 482, 489).
67
Id
. at 53,257.
68
Id
.
69
Letter from Director, Survey and Certification Group, Ctrs. for Medicare and Medicaid Servs., to State Survey Agency Direc-
tors (May 13, 2004) (Revised Emergency Medical Treatment and Labor Act (EMTALA) Interpretive Guidelines),
available at
www.cms.hhs.gov/medicaid/survey-cert/sc0434.pdf. (last visited Sept. 25, 2004) [hereinafter Letter to State Survey Agency Directors].
70
42 C.F.R. § 489.24(a)(2) (2004).
