EMTALA and Disasters – Key Facts about Waivers

PUBLISHED: May 24, 2018
Relevant to: Critical Access Hospitals, Hospitals

This US Department of Health and Human Services Office of the Assistant Secretary for Preparedness and Response has updated their fact sheet about the Emergency Medical Treatment and Labor Act (EMTALA) and disasters. The fact sheet provides answers to frequently asked questions and links to resources for more information.

Under certain circumstances, sanctions for violations of EMTALA obligations may be waived for a hospital. The EMTALA medical screening exam (MSE) and stabilization sanctions can be waived under the following circumstances:

  • The President of the United States declares an emergency or disaster under the Stafford Act or the National Emergencies Act, AND
  • The Secretary of Health and Human Services declares that a Public Health Emergency (PHE) exists and also authorizes EMTALA waivers under section 1135 of the Social Security Act. Notice of EMTALA waivers will be provided through CMS to covered entities; AND
  • Unless EMTALA waivers are granted for an entire geographic area, the hospital applies for a waiver; AND
  • The hospital must have activated its emergency operations plan; AND
  • The State must have activated its emergency operations plan or pandemic plan for an area that covers the affected hospital.

A waiver generally lasts for 72 hours after the emergency is declared and the facility’s emergency plan is activated (in case of a pandemic the waiver will last until the termination of the PHE declaration). Even in the case of a waiver, however, the hospital is still responsible for ensuring the safety of the patients in its care. Hospitals should be aware that local or state declarations or waivers cannot alter, waive, or otherwise address EMTALA, as EMTALA is a federal law.

Waivers can be applied retroactively to the effective date of the emergency period AND activation of the hospital emergency operations plan. The emergency period begins on the date in which there are both a disaster or emergency declaration by the President and a PHE declaration by the HHS Secretary for the event. A waiver cannot be applied before the effective date of the emergency period.

In order to manage surge, hospitals may set up alternative screening sites on campus for emergencies such as pandemics or other events where an alternative area is appropriate. However, regardless of emergency medical service diversion or plans in the community to direct patients to specific facilities, once a patient arrives at an ED, EMTALA applies. Providers needing to comply with the CMS Emergency Preparedness Final Rule should be sure that management of patient surge during a disaster is considered in the development of a facility’s risk assessment and overall emergency preparedness program.

Included with today’s notice is a link to the updated EMTALA and Disasters Fact Sheet as well as an example policy related to EMTALA and disasters.

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