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Declared Public Health Emergency has Potential Implications for EMS

Nov 02, 2009

President Obama’s declaration of a public health emergency has potential implications for EMS. The President’s declaration puts in motion the government’s ability to grant "EMTALA waivers" to hospitals that are unable to manage patient surges in face of influenza. In response to the 2009 H1N1 influenza virus, the Secretary of Health and Human Services, Kathleen Sebelius, first declared a public health emergency under section 319 of the Public Health Service Act, 42 U.S.C. 247d on April 26, 2009. The Secretary has renewed that declaration twice, on July 24, 2009, and October 1, 2009.


An EMTALA waiver allows hospitals to:
  • Direct or relocate individuals who come to the ED to an alternative off-campus site, in accordance with a State emergency or pandemic preparedness plan, for the MSE.
  • Effect transfers normally prohibited under EMTALA of individuals with unstable EMCs, so long as the transfer is necessitated by the circumstances of the declared emergency.

By law, the EMTALA MSE and stabilization requirements can be waived for a hospital only if:
  1. The President has declared an emergency or disaster under the Stafford Act or the National Emergencies Act; and
  2. The Secretary of HHS has declared a Public Health Emergency; and
  3. The Secretary invokes her/his waiver authority (which may be retroactive), including notifying Congress at least 48 hours in advance; and
  4. The waiver includes waiver of EMTALA requirements and the hospital is covered by the waiver.

CMS will provide notice of an EMTALA waiver to covered hospitals through its Regional Offices and/or State Survey Agencies. Duration of an EMTALA waiver:

  • In the case of a public health emergency involving pandemic infectious disease, until the termination of the declaration of the public health emergency; otherwise
  • In all other cases, 72 hours after the hospital has activated its disaster plan.
  • In no case does an EMTALA waiver start before the waiver’s effective date, which is usually the effective date of the public health emergency declaration.

NAEMT is not aware that Secretary Sebelius has invoked her waiver authority but it appears that this situation is imminent. EMTALA waivers have the potential to create uncertainty and chaos in the EMS environment. Some states regulate EMS patient destination, and as such, the state EMS regulatory authority may be called upon to assist in the review of cases where EMTALA violations are reported. 

NAEMT members are encouraged to work with their local hospitals in finding solutions that do not overtax any component of the health care system.