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PEDIATRICIANS AND THE LAW

EMTALA disaster rules and pandemic H1N1 influenza

The federal Emergency Medical Treatment and Labor Act (EMTALA) applies to nearly all U.S. hospitals. Under EMTALA, these hospitals and their physicians must provide medical screening and stabilizing treatment, regardless of ability to pay, to all who come to the emergency department (ED) seeking care. The law provides for severe penalties for violations.

EMTALA is directed primarily at ED physicians, but it also has important implications for community pediatricians and their patients in the event of pandemic disease.

In April 2009, the Centers for Disease Control and Prevention declared a national public health emergency in response to an outbreak of H1N1 influenza. Within days, hospitals reported dramatic increases in their ED volumes. Although initial incidence of disease was minor, it increased over time, and in June the WHO declared a global pandemic.

The burden of EMTALA during a pandemic

EMTALA requires that hospital EDs provide an appropriate medical screening examination to all patients who present for treatment of any medical condition. The Centers for Medicare & Medicaid Services (CMS) has acknowledged that all presenting conditions are not equal, and the "appropriate" screening examination for some conditions may be far less extensive than for others. Nonetheless, for every patient, the hospital must provide a screening examination sufficient to determine whether an emergency condition exists.

Dr. McDonnell

In 2003, CMS provided additional guidance of what constitutes an "appropriate" screening examination using a hypothetical suture removal case. The physician would meet the screening requirement by obtaining a history, examining the sutures and determining that the wound is healing appropriately. If the physician then concludes that the patient does not have an emergency medical condition, the EMTALA screening requirement would be satisfied.

Whether EMTALA presents an undue burden on hospitals and whether it contributes to ED crowding and increased waiting times remains controversial. However, there is little dispute that EMTALA could become increasingly burdensome to EDs in a pandemic.

Congress and CMS have long recognized that the usual EMTALA requirements might pose an unacceptable burden in times of public health emergencies, and the law specifies certain circumstances under which EMTALA may be suspended temporarily.

In August, CMS announced guidance for hospitals and physicians during a pandemic. CMS offered specific advice regarding EMTALA obligations under two distinct scenarios: 1) surges in ED patient volumes while EMTALA remains intact; and 2) surges in patient volumes when EMTALA requirements are suspended.

Options while EMTALA remains intact

CMS reminded hospitals that a medical screening exam does not necessarily have to be performed in the ED. Instead, hospitals may set up alternate influenza centers in other hospital areas. Patients who do not require immediate emergency care may be redirected to these centers.

In August, the Centers for Medicare & Medicaid Services provided guidance for hospitals and physicians regarding Emergency Medical Treatment and Labor Act requirements during a pandemic.

At the influenza center, patients must be given screening exams. These exams must be performed by staff designated by the hospital bylaws as "qualified personnel." The hospital may designate as qualified personnel physicians, nurse practitioners, physician’s assistants and/or RNs trained to perform screening exams. If found to have an emergency condition, patients must be moved to the ED (or an inpatient area) and the condition stabilized.

CMS also reminded hospitals that EMTALA requirements do not apply to patients who have not yet come to the hospital. Therefore, hospitals may establish off-campus influenza screening centers and advise the public to go to those screening centers for evaluations instead of coming to the ED. Patients at the screening centers with emergency conditions should be transported to the hospital for stabilization.

Hospitals are cautioned that if a patient ignores the recommendation to go to an off-campus center and instead comes to the hospital, then EMTALA does apply, and a screening exam must be provided at the hospital.

EMTALA waivers

The law sets forth specific conditions under which EMTALA may be suspended temporarily. A hospital’s screening and stabilization obligations will be suspended if all of the following conditions are met:

1. The President of the United States declares an emergency or major disaster.
   
2. The Secretary of the Department of Health and Human Services (HHS) declares a public health emergency.
   
3. The Secretary of HHS specifically issues an EMTALA waiver.
   
4. The waiver specifically covers the hospital.
   

EMTALA waivers issued in response to pandemic influenza will expire automatically when the declaration of a public health emergency is terminated. While the EMTALA waiver is effective, the hospital may, if necessary under the circumstances, transfer, discharge or redirect patients without performing medical screening examinations or providing treatment.

Coordinating efforts

Pandemic influenza holds the threat of tremendous surges in ED patient volumes. Hospitals can and should prepare to address anticipated surges with plans that will allow the hospitals to remain in compliance with EMTALA. For example, hospitals may find it useful to plan for "influenza screening centers" in areas of the hospital apart from the ED. Hospitals might decide to utilize non-physician providers to perform the medical screening exams in such centers. However, if hospitals are considering altering their usual medical screening processes in this fashion, formal hospital bylaws changes designating these providers as "qualified personnel" should be made in advance.

Community pediatricians should consider how they can be part of the solution to the challenges posed by the threat of pandemic influenza.

Pediatricians should be aware of local hospitals’ plans to manage patient surges. Pediatricians can provide valuable suggestions and assistance in establishing community influenza clinics that could manage large numbers of influenza patients at locations away from the hospital campus. Their familiarity with pandemic preparations also will help pediatricians guide their patients to the appropriate sources of care when necessary.

Pediatrician involvement may help ensure that the needs of children are properly addressed by communities’ pandemic disaster plans.

Dr. McDonnell is a member of the AAP Committee on Medical Liability and Risk Management.

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This Article Full Text (PDF) Alert me when this article is cited Alert me if a correction is posted Services E-mail this article to a friend Similar articles in this journal Alert me to new issues of the journal Add to My File Cabinet Download to citation manager Request Permissions Google Scholar Articles by McDonnell, W. M. Related Collections Pediatricians and the Law Social Bookmarking                         What's this?