QUESTION:       We are a small, rural hospital and do not have the capabilities (e.g., lifts, reinforced toilets, etc.) to accommodate morbidly obese patients.  Are we permitted to implement a policy on transferring these patients to another hospital that can?

ANSWER:           The answer to this question isn’t entirely clear but a couple of laws which you should consider in implementing this type of policy include the Americans with Disabilities Act (“ADA”) and EMTALA.

Even though there is not widespread consensus on whether morbid obesity is a disability under the ADA, there appears to be a recent trend concluding that it is, following the amendment of the ADA which gave a broader definition to the term “disability.”  In fact, the Equal Employment Opportunity Commission (“EEOC”) has been involved in at least one suit alleging that an individual was discriminated against in violation of the ADA because of his morbid obesity.

Under Title III of the ADA, hospitals are places of public accommodation.  Thus, the mandates of Title III apply.  Title III requires places of public accommodation to make reasonable modifications unless such modifications would fundamentally alter the nature of the services.  The regulations permit hospitals and other medical service providers to refer an individual with a disability to another medical service provider for specialized services that the referring medical service does not provide.

If one of the concerns a hospital has with respect to treating morbidly obese patients is that these patients do not fit into some of the hospital’s imaging equipment, this would seemingly permit the hospital to transfer the patient without violating the ADA since it does not provide certain specialized services (here, imaging equipment that accommodates morbidly obese patients).

Title III of the ADA also requires hospitals to remove architectural barriers when the removal is readily achievable.  Readily achievable means that it is easily accomplishable and able to be carried out without much difficulty or expense.  In determining whether a removal is readily achievable, several factors must be considered, including the nature and cost of the removal and the overall financial resources of the hospital.

If a hospital does wish to move forward with a policy on transferring morbidly obese patients, it would be wise to do an assessment of exactly how much it would cost to accommodate these patients through architectural/equipment modifications and balance this cost against the finances of the hospital.

Another law which should be taken into consideration is EMTALA.  Even though there is nothing in EMTALA, the EMTALA regulations, interpretive guidelines, or case law directly on point, EMTALA does not appear to restrict the transferring of morbidly obese patients that a hospital cannot accommodate.  EMTALA only requires hospitals with dedicated emergency rooms to provide medical screening examinations and stabilizing treatment for those who come to the hospital’s emergency room within the hospital’s capabilities and capacity.  The Interpretive Guidelines for the EMTALA regulations state that a hospital “must provide screening and stabilizing treatment within the scope of its abilities.”  Thus, as long as a hospital complies with the EMTALA requirements for transferring patients and provides a screening and stabilizing treatment within the scope of its abilities, it should not run afoul of EMTALA.