Biomedical Engineering Reference
In-Depth Information
handle particular categories of patients, then hospi-
tals in the area that are not designated facilities
must still provide a medical screening exam, but
may then transfer patients in those categories to
a designated facility without triggering EMTALA
sanctions.
71
The Project Bioshield Act of 2004, signed into
law on July 21 of that year, contains a brief
provision relating to EMTALA's screening obli-
gations, allowing the DHHS Secretary to waive
standard EMTALA requirements, and allow for
“the direction or relocation of an individual to
receive medical screening in an alternate loca-
tion pursuant to an appropriate State emergency
preparedness plan.”
72
insurance. Reinsurers, who are not regulated by
state insurance commissioners, however, are not
required to provide reinsurance for terrorism risk,
creating a major weakness in the support structure
of the insurance industry.
In late 2002, the Terrorism Risk Insurance
Act
73
(TRIA) was enacted. The act's enumerated
purposes are “to address market disruptions, ensure
the continued widespread availability and afford-
ability of commercial property and casualty insur-
ance for terrorism risk, and to allow for a transition
period for the private markets to stabilize and build
capacity while preserving State insurance regula-
tion and consumer protections.”
74
The Act's “make
available” provision found in § 103(c) requires
all entities that meet the act's definition of insurer
to “make available” in their “property and casu-
alty insurance policies, coverage for insured losses
resulting from an act of terrorism.”
75
This coverage
cannot differ materially in form from coverage
applicable to losses arising from other events.
The Terrorism Risk Insurance Program places
the federal government in the role of reinsurer.
76
However, several limitations apply. Under the act,
the federal government only reimburses insurers for
a portion of their “insured losses”
77
resulting from
certified “acts of terrorism.”
78
The “act of terrorism”
must meet specific requirements including commis-
sion “by individual(s) on behalf of any foreign
person or foreign interest, as part of an effort to
coerce the U.S. civilian population or to influence
the policy or affect the conduct of the U.S.”
79
Thus,
acts of domestic terrorism are excluded.
Appendix A.B
Risk-Management Considerations
Terrorism Risk Management
Individuals and businesses typically purchase
insurance coverage from direct insurers. Direct
insurers write the policies, collect the premiums,
and pay claims to the insured. Reinsurers, on the
other hand, provide some protection from exposure
for direct insurers by acting as insurance for the
direct insurers. Following the attacks on September
11, 2001, the majority of the property and liability
loss was passed on to reinsurers. As a result, rein-
surers began excluding terrorism risk from their
policies, which led direct insurers to begin taking
similar actions. Currently, state insurance regula-
tors
require
direct insurers to offer terrorism risk
71
Letter to State Survey Agency Directors,
supra
note 69, at 31.
72
Project Bioshield Act of 2004, Pub. L. No. 108-276 § 8, 118 Stat. 835, 864 (codified as amended at 42 U.S.C. § 1320b-5).
73
Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, 116 Stat. 2322 (codified in scattered sections of 12, 15, 28 U.S.C.).
74
Id
. § 101(b), 116 Stat. at 2323.
75
Id
. § 103(c), 116 Stat. at 2327.
76
The Federal “reinsurance” is 90% of covered losses that exceed an insurer's deductible. This share is subject to an annual industry
aggregate limit of $100 billion. The insurer's deductible is based on an insurance company's earned premiums from the previous
calendar year.
Id
. § 103(e)(1)(A), 116 Stat. at 2328.
77
The Act defines “insured loss” as any loss resulting from an “act of terrorism.” Terrorism Risk Act of 2002 § 102(5), 116 Stat.
at 2325.
78
Under the Act, the “act of terrorism” must be certified as such by the Secretary of the Treasury, in concurrence with the Secretary
of State and the Attorney General. 31 C.F.R. § 50.5(b) (2004).
79
Additionally, the act must “be a violent act or an act that is dangerous to human life, property, or infrastructure;” must occur in the
United States or abroad in the case of air carriers, vessels, or missions; and must result in damages in excess of $5 million.
Id
.An
act cannot be certified if it occurs in the course of a “war declared by Congress” (except for workers' compensation coverage).
Id
.
