Does EMTALA apply during a disaster?
Suppose a crowd at a major public event is sprayed with an unknown chemical agent, and dozens of contaminated come to your ED. Would you be concerned about complying with the Emergency Medical Treatment and Active Labor Act (EMTALA)?
A letter sent by the Centers for Medicare and Medicaid Services (CMS) to its regional administrators suggests that if hospitals transfer patients to other facilities during a bioterrorism event, they will not be in violation of EMTALA provided the transfer is under specific circumstances. The letter was prompted by hospitals seeking clarification of EMTALA in light of recent anthrax cases.
"In the new comments, CMS seems to authorize all of the patients to be sent to a central point for triage, decontamination, and dispersal as needed for care without worrying about EMTALA transfer and documentation rules," says Stephen Frew, JD, president of the Rockford, IL-based Frew Consulting Group, which specializes in compliance with EMTALA. "I am not prepared, however, to say that a hospital could refuse to provide life-saving care to a patient and send them away to the proper’ hospital, especially if they are brought in by nonmedical personnel or families rather than EMS."
CMS is unlikely to risk compromising care in a disaster by insisting on compliance with paperwork, Frew argues. "By the same token, however, any hospital that turns its injured community away from its doors and lets them die because the hospital is unprepared is going to face issues much worse than EMTALA."
Here are key points to consider:
• Different standards do exist for mass casualty incidents.
There is a question of whether hospitals can use disaster triage standards to move patients to other locations based on initial triage only, says Frew. "The answer has been uncertain up to now, but CMS has historically allowed a window’ of looking the other way during a reasonable period following a mass casualty incident," he reports.
The new policy statement appears to clarify that transfer under EMTALA will not be enforced during a declared disaster, and that disaster plans for transferring out triaged patients will supercede general EMTALA restrictions on transfers, says Frew. However, the relaxed standards would not apply for anthrax contamination, because it’s identified only after medical examination, says Frew. "You will not have dozens of ambulances racing to your facility with the victims," he says. "I do not believe there is any significant relief from EMTALA requirements for this level of incident."
• The same level of documentation probably will not be required.
"Obviously, in a disaster situation, documentation is a time-consuming luxury that can cost lives," Frew says. "It appears from this statement and prior information from CMS that they will not automatically look for the same level of documentation during a declared disaster as during normal operations." However, records of some sort will be necessary under standards of the Joint Commission on Accreditation of Healthcare Organizations, to keep track of who came into the triage system, where they were sent, and why, Frew warns. The CMS comments apply to mass casualty incidents, not to internal overload incidents caused by several patients presenting at the same time with significant acuity, he adds.
• There may be situations when you can refer patients before the medical screening exam (MSE).
CMS says that there may be situations where referral of a potentially exposed patient prior to an MSE is appropriate "if hospitals have coordinated plans with state and local government entities."
This statement suggests that CMS will take a hospital’s formal emergency preparedness plans into consideration when determining violations, says Gloria Frank, JD, former lead enforcement official on EMTALA for CMS and owner of EMTALA Solutions, an Ellicott City, MD-based consulting firm. "However, in Washington, DC, to my knowledge, hospital EDs were turning patients away before screening for anthrax, sending them to the public health department," she adds. "That does not seem like coordinated plans with state and local government entities’ to me."
Do not interpret the CMS comments as meaning that you can send out patients without being seen at all during the aftermath of a terrorist attack, says Frew. EMTALA fundamentally prohibits turning patients away without assessment, and the CMS statement does not give a clear exemption from EMTALA, says Frew. "Joint Commission requires all accredited hospitals to have decontamination capability of some sort. So merely saying we don’t do bio’ is not enough," he adds.
• Don’t assume patients will be diverted.
Many communities have designated a particular hospital as a decontamination location and central triage point in their community disaster plans, Frew says. "Under existing EMTALA laws, CMS would allow hospitals to divert EMS units to the central point, even if they were hospital-owned ambulances," he says. Frew gives the example of a known exposure to a toxic substance, with a large number of seriously injured patients who are potentially dangerous to caregivers by contact contamination. These patients will not be successfully diverted, so you must be prepared to safely address these casualties, says Frew. "Any belief that the central point triage and decontamination approach will prevent this type of patient from turning up at other hospitals is wishful thinking," he says.
Sources
For more information about EMTALA compliance during a disaster, contact:
• Gloria Frank, JD, EMTALA Solutions, P.O. Box 1340, Ellicott City, MD 21041. Telephone: (800) 972-7916. Fax: (410) 480-9116. E-mail: [email protected]. Web: www.gloriafrank.com.
• Stephen Frew, JD, Frew Consulting Group, 6072 Brynwood Drive, Rockford, IL 61114. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: [email protected].
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