Advanced Search

Medicare Compliance & Reimbursement

Compliance:

Feds Offer Stern Reminder on EMTALA

Published on Fri Jun 02, 2023

CMS investigations highlight state and federal differences — and enforcement under the law.

If you’re updating your organization’s EMTALA policies and procedures, you may want to review two recent Medicare investigations on the intersection of the law, women’s health, and federal enforcement.

Rollback: On June 24, 2022, the U.S. Supreme Court overturned Roe vs. Wade, which protected a woman’s right to an abortion, in its 6-3 ruling on Dobbs vs. Jackson Women’s Health Organization. Since that decision, the Department of Health and Human Services (HHS) in conjunction with the Centers for Medicare & Medicaid Services (CMS) have offered guidance, both reminding and reaffirming individuals’ rights to reproductive care — particularly emergency treatment.

Reminder: Under the Emergency Medical Treatment and Labor Act (EMTALA), individuals have the right to emergency examination and treatment whether they have insurance or the ability to pay for that care. Moreover, when a patient requests this type of healthcare and the hospital discovers a medical condition that needs treated, “the hospital must provide available stabilizing treatment or an appropriate transfer to another hospital that has the capabilities to provide stabilizing treatment,” CMS reminds in a July 2022 memorandum on the Dobbs decision. Additionally, EMTALA requires providers to offer the exam, care, and transfer “irrespective of any state laws or mandates that apply to specific procedures,” the agency warns.

Here’s the Latest Update

Last year’s landmark decision continues to impact state reforms and spark debates on EMTALA, including guidance from the feds.

“Although certain states have responded to the ruling by implementing legal restrictions on the provision of and access to reproductive and abortion care, HHS reiterated its position that EMTALA’s obligations preempt any directly conflicting state law or mandate that might prohibit necessary stabilizing treatment or that apply to specific procedures, including abortion care,” note attorneys Amy Dilcher and Arushi Pandya with law firm Sheppard Mullin in the firm’s Healthcare Law blog.

Case in point: On May 1, CMS issued reports on two investigations of hospitals, the first enforcement the agency has announced post-Dobbs. CMS looked into the case of a pregnant patient “experienc[ing] a preterm premature rupture of membranes (PPROM), and as a result was advised that her pregnancy was no longer viable,” an HHS release indicates. Physicians at the hospital let the patient know “her condition could rapidly deteriorate,” but that they couldn’t help her based on hospital policies on abortion, the release adds.

So, despite doctors advising the patient that she needed emergency care to alleviate the PPROM, an abortion couldn’t be performed due to the facility’s policies, which was a violation of EMTALA.

HHS Secretary Xavier Becerra warns that the agency will not refrain from EMTALA enforcement if cases like this one arise in the future. “We will use the full extent of our legal authority, consistent with orders from the courts, to enforce protections for individuals who seek emergency care — including when that care is an abortion,” Becerra says in a release.

Review Your Organization’s Policies Amid Changing State Regs

Providers must abide by EMTALA, so it’s critical that your organization review not only the statute but state differences that may impact compliance, too. For example, “two federal courts in Texas and Idaho are currently considering the effect of EMTALA on state laws that restrict abortion care, including HHS’ enforcement authority,” explain Dilcher and Pandya. “Which may ultimately lead to another U.S. Supreme Court case concerning abortion,” they acknowledge.

Confusion over the law abounds, particularly as cases make their way through the court system. Industry insiders like the American Hospital Association (AHA) offer that providers should understand their EMTALA-required obligations while asking the feds for guidance. “Last August, we filed an amicus brief in support of the Department of Justice’s case seeking to enforce EMTALA in Idaho,” says Melinda Hatton, AHA general counsel and secretary in a May 1 release. “As we explained in that brief, it is critical that providers have clarity across state and federal law about what care they may — and, in the context of EMTALA, must — provide, and the AHA will continue to work to obtain that necessary clarity.”

EMTALA Requirements Are Back On Post-PHE

Under the COVID-19 public health emergency (PHE), compliance requirements were either relaxed or paused for a plethora of state and federal regulations — and that included EMTALA, but with the PHE now over, it’s back to business as usual.

Then: “During the PHE, CMS waived the enforcement of EMTALA, allowing hospitals to screen patients at a location offsite, away from the hospital’s campus, to prevent the spread of COVID-19,” remind attorneys Gregory N. Etzel and Sydney Reed Swanson with law firm Morgan Lewis in online analysis.

Now: But this EMTALA relief for hospitals, psychiatric hospitals, and critical access hospitals (CAHs) came to an end on May 11, and federal enforcement of the law has been re-established. Providers should already have reinstituted policies that protect patients’ rights to emergency screenings and care under the provision.

Resource: Review Medicare’s updated COVID fact sheets for post-PHE updates on EMTALA at www.cms.gov/ coronavirus-waivers.

Bottom line: Healthcare providers are legally and professionally bound by EMTALA to help individuals that present with medical conditions like those of the patient in the CMS investigation — and organizations and their staff should aim for compliance with the regulation. “While many state laws have recently changed, it’s important to know that the federal EMTALA requirements have not changed, and continue to require that healthcare professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition,” Becerra advises.

Resources: Read the HHS release and Becerra’s letter at www.hhs.gov/about/news/2023/05/01/hhs-secretary-xavier-becerra-statement-on-emtala-enforcement.html and CMS guidance at https://www.cms.gov/files/document/qso-22-22-hospitals.pdf.

Other Articles in this issue of

Medicare Compliance & Reimbursement

View All