CMS Announces Comprehensive Plan to Ensure EMTALA Compliance

CMS’s New Actions Related to EMTALA

On January 22, 2024, the Department of Health and Human Services (HHS) announced that, through the Centers for Medicare & Medicaid Services (CMS), it will launch a comprehensive plan related to the Emergency Medical Treatment and Labor Act (EMTALA). The goals of this comprehensive plan are reportedly: (1) to educate the public about their rights related to emergency medical care, and (2) support hospitals that are subject to EMTALA in meeting their obligations. Specifically, this comprehensive plan will:

• Add new informational resources on CMS’s website to help individuals understand their rights under EMTALA and the process for submitting a complaint if they are denied emergency medical care;
• Create partnerships with hospital and provider associations to disseminate training materials on providers’ obligations under EMTALA;
• Convene hospital and provider associations to discuss best practices and challenges in ensuring compliance with EMTALA; and
• Establish a dedicated team of HHS experts who will increase HHS’s capacity to support hospitals in complying with federal requirements under EMTALA.

Background Regarding EMTALA Requirements

EMTALA was passed as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986. It is commonly referred to as a federal “anti-dumping law.” To ensure the public’s adequate access to emergency medical care, EMTALA requires hospitals with emergency departments (EDs) to provide a medical screening examination (MSE) to any individual who “comes to the emergency department” and to ensure that such an examination occurs regardless of that individual’s ability to pay. A hospital may face an EMTALA violation if it fails to provide an MSE and determine whether a patient has an emergency medical condition (EMC).

If a medical provider determines that a patient has an EMC, the hospital is obligated under EMTALA to provide stabilizing treatment within the capabilities and capacity of the hospital. The provisions of EMTALA apply to all individuals, not just Medicare beneficiaries.

Under EMTALA, hospitals with EDs are required to implement the following: (1) adopt and enforce policies and procedures to comply with EMTALA requirements; (2) post signs identifying the rights of individuals who present to the ED with an EMC, including women in labor; (3) maintain medical and other records for a period of five years for those individuals transferred to or from the hospital; (4) maintain an on-call physician list; (5) maintain a detailed central log of all individuals who present to the ED for treatment; (6) provide an appropriate transfer of an unstable individual to another medical facility; (7) accept an appropriate transfer from another facility if the hospital has specialized capabilities and capacity; and (8) prevent adverse actions from being taken for anyone who reports a potential EMTALA violation or a provider who refuses to transfer an unstable patient.

Hospitals must also be aware of certain state-specific regulations related to EMTALA. For example, some states require an MSE to be provided within a certain timeframe of an individual’s arrival to an ED. In recent years, state variations on abortion laws have made compliance with EMTALA difficult for some hospitals. CMS continues to take the stance that the right to emergency care includes abortion care and has provided guidance to hospitals on complying with EMTALA in this regard. For details on CMS’s guidance on providing emergency medical care to pregnant women in the wake of the Dobbs decision, please refer to EBG’s publication “In Wake of Dobbs Decision, CMS Issues Guidance to Hospitals on EMTALA Obligations.”

EMTALA as a Complaint-Driven Process

Federal enforcement of EMTALA is a complaint-driven process that typically begins after CMS receives information about a potential violation from, typically, another hospital, a patient, or another individual. Hospitals do not have an obligation to self-report but are required to report a suspected EMTALA violation of another hospital within 72 hours. CMS does not, currently, perform random audits of hospitals to ensure hospitals are complying with EMTALA regulations. Complaints typically arise from the failure of a hospital to perform an MSE, to appropriately identify an EMC, or to provide or accept an appropriate transfer to or from another facility. Potential violations of EMTALA are more likely to arise from interaction with patients with psychiatric conditions and women in labor than other patient populations.

CMS Investigations

CMS is required to evaluate all allegations of an EMTALA violation and to investigate those that warrant further evaluation. These investigations are typically handled through the state’s survey agencies and local/regional CMS offices and are initiated with an unannounced visit to the hospital.

While the focus of these investigations is primarily on the initial violation report, the surveyors must determine if the hospital is abiding by all EMTALA requirements with a focus on the hospital’s compliance within the last 6 months. For these reasons, investigators may request not only the medical records involved with the potential violation but also unrelated dedicated ED logs, policies and procedures, transfer consent forms, ED committee meeting minutes, staffing schedules, medical staff bylaws, medical staff meeting minutes, medical staff roster, census reports, on-call physician lists, credentialing files, quality improvement plans, quality meeting minutes, personnel records, in-services and trainings, ambulance trip records, etc.

CMS will review a sample of at least 20 patients with a focus on other similarly situated patients to the alleged violation. In addition, the review may also include patients transferred to other facilities, those who left against medical advice (AMA), those who left without being seen (LWBS) by a provider, and those patients who return to the ED within 48 hours. The surveyor will often identify days that are typically busier in the ED or those days with longer than normal wait times.

CMS will review medical records, conduct interviews, and review all other documentation requested. Interviews are not only of those involved with the alleged violation but also random hospital employees to alert appropriate personnel of the hospital’s obligations under EMTALA. Subsequently, CMS will conduct an exit conference with appropriate hospital personnel to inform the hospital of the scope of the investigation, the nature of the complaint, the investigation process, and the potential consequences of any violations identified, which can include termination of its contract with CMS and / or imposition of civil monetary penalties (CMPs).  Unfortunately, during an EMTALA investigation, CMS is not limited to just reviewing or identifying EMTALA violations but may also determine that a hospital violated a Condition of Participation (COP).

At times, an EMTALA investigation will require a physician to provide a peer review, which is required for the imposition of a CMP or the termination of a provider agreement. While the focus is typically on the hospital, providers can also be held individually responsible for EMTALA violations and fined accordingly.

What Hospitals Can Do Now to Prepare

The details of the comprehensive plan purported by CMS have not yet been released. But as CMS ramps up patient awareness of their rights under EMTALA, it is likely there will be an uptick in complaints made and more CMS investigations in response to the allegations raised. While CMS indicates that the agency intends to help facilities become more compliant, this may not avoid an EMTALA violation in the first instance. Hospitals should be diligent to avoid even the appearance of an EMTALA violation, and education and preparation are the key. Here are some suggested steps a facility can take now to be ensure compliance with EMTALA requirements: 

• Review and/or prepare EMTALA-related policies and procedures;
• Educate all relevant personnel on the requirements of EMTALA and new or revised policies and procedures;
• Ensure training on EMTALA occurs at least annually;
• Determine if EMTALA signage is appropriate in language and location;
• Review central log to determine if it maintains the appropriate information;
• Review on-call list to ensure it includes appropriate information;
• Review transfer log and physician certifications;
• Regularly view medical records of patients transferred, left AMA, LWBS, or had a long arrival to MSE time and educate when deficiencies are identified; and,
• Conduct mock EMTALA audits, including record review and interviews.

For additional information about the issues discussed in this post, or if you have any other questions or concerns regarding EMTALA or other regulatory requirements for provision of emergency medical services, please contact one of the authors of this post or the EBG attorney who regularly handles your legal matters.