Hospitals and healthcare providers should continue to understand their professional and legal duties under the Emergency Medical Treatment and Labor Act (EMTALA) in anticipation of the comprehensive plan the Department of Health and Human Services (HHS) announced it would launch together with the Centers for Medicare & Medicaid Services (CMS) in a press release on January 22, 2024.

The purpose of the plan is to educate patients on their rights to emergency medical care in response to the growing number of inquiries CMS has received from both patients and providers. HHS announced that its comprehensive plan intends to:

  • Provide new information on CMS’s website to help patients gain a understanding of their rights under EMTALA, along with information regarding the process for submitting a complaint if denied emergency medical care;
  • Partner with hospitals and provider associations to disseminate training materials regarding a provider’s obligation under EMTALA; 
  • Convene with hospital and provider associations to discuss best practices and challenges in ensuring compliance with EMTALA; and
  • Establish a dedicated team of HHS experts to increase HHS’ capacity to support hospitals in complying with federal requirements under EMTALA.

Education and preparation will be critical. Educating providers through a Focused Professional Practice Evaluation (FPPE), or rehabilitating providers though an Ongoing Professional Practice Evaluation (OPPE), are two ways to prevent a violation before one occurs when navigating the uncertainties of state abortion laws. Internal investigations into whether medical staff has failed to offer necessary stabilizing care to a pregnant patient can be an effective way to monitor compliance with EMTALA by preventing harm to the putative patient.

Another way to prevent potential violations is to prepare for whether hospitals will withstand a CMS investigation if CMS learns of a potential violation from another hospital, or a patient or other individual. While CMS does not perform random audits and hospitals do not have an obligation to self-report a suspected EMTALA violation, hospitals do not want to be exposed by another hospital that is required to report a potential violation at their facility. To properly prepare, hospitals should review emergency room policies and procedures; census reports; transfer consent forms; medical staff rosters, schedules, and credentialing files; in conjunction with the medical staff bylaws, medical staff meeting minutes, quality improvement plans, and quality meeting minutes. These are the materials CMS will request in the event of a violation in connection with the medical records of a patient. Understanding the current state of the hospital’s affairs in advance of the comprehensive program will improve quality of care and patient safety through the early detection of existing deficiencies.

On May 9, 2024, the U.S. House Ways and Means Committee advanced legislation to extend pandemic-era telehealth flexibilities through 2026. The bill, referred to as the Preserving Telehealth, Hospital, and Ambulance Access Act, would extend the ability of Medicare beneficiaries to access care via telehealth through December 31, 2026, among other things.

During the pandemic, the federal government had taken steps to expand the ability of healthcare providers to offer medical care via telehealth to ensure patients could continue to access care. When the public health emergency expired, many of those telehealth flexibilities were set to expire as well. While some were made permanent, many were temporarily extended through 2024 while Congress and CMS continued to evaluate the future of telehealth services.

The recently advanced legislation would further extend a number of flexibilities, including the removal of geographic restrictions, expanding the list of providers that can offer virtual services, and the continued allowance of certain audio-only telehealth care. The bill would also extend the Medicare acute hospital at home program for an additional five years.

Following the Committee’s advancement of the bill, the legislation will now proceed to the floor of the House for further debate and consideration. While this development suggests that a move to make these telehealth flexibilities permanent may be off the table for the time being, the continued extensions further engrain these modes of delivering healthcare in the minds of Medicare beneficiaries and are likely to only bolster the desire of many to eventually make the expansion of telehealth permanent.

John Zen Jackson, Of Counsel to the firm’s Healthcare Department, has been appointed Vice-President of the Medical History Society of New Jersey (MHSNJ). Mr. Jackson has been an MHSNJ member since 2013.

Founded in 1980, the MHSNJ is a non-profit organization devoted to promoting and encouraging historical research, analysis, and publication concerning the history of medicine and allied fields. Members present scholarly papers at dinner programs and Zoom meetings. These include one of two named lectures delivered by a prominent medical historian. The Saffron Lecture series is named after Morris H. Saffron, M.D., PhD, a dermatologist and medical historian. The Kent Memorial Lecture series is named after physician, teacher, and humanist Donald F. Kent, M.D., PhD.

Mr. Jackson’s healthcare practice emphasizes litigated matters in judicial and administrative forums, including professional liability claims, licensure and credentialing issues with administrative agencies and health care entities, reimbursement and insurance fraud disputes. He is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and has extensive experience in trying jury cases to a verdict. He has published several articles and made presentations regarding healthcare providers of the 19th and early 20th centuries on behalf of the MHSNJ. In 2017, he delivered the 14th annual John S. Rock Memorial Lecture before the Salem County Historical Society.

Healthcare sector employers should take steps to familiarize themselves with the U.S. Department of Labor’s just- announced final rule providing for two-step increases to both the minimum salary level for exempt employees and the thresholds for “highly compensated employees.” Although it remains to be seen whether the rule will survive anticipated legal challenges, if adopted in its current form it will bring considerable impacts to the healthcare industry by sweeping significant numbers of employees who are currently below the new thresholds into the hourly worker category. As explained in this Client Alert by our partner Maja M. Obradovic, virtually all employers, including those in the healthcare arena, should take steps to address these changes proactively and plan for adjustments in their workforce as necessary.  

The Federal Trade Commission’s approval this week of a final rule voiding and banning nearly all non-compete clauses raises several unanswered questions which are of particular interest to healthcare industry entities. These include whether the FTC will try to enforce the rule against tax-exempt entities, whether healthcare employers will be hesitant to enforce non-compete clauses against employed physicians should the rule survive legal challenges, and whether existing agreements with C-suite and other senior hospital and health system executives containing non-compete clauses, (which are outside the scope of the FTC’s rule) will become subject to the rule if they are amended, and should the rule become effective. Learn more about the FTC’s final rule and its potential impacts in our just-published client alert from Greenbaum partner Thomas C. Senter.

On January 2, 2024, the United States Court of Appeals for the Fifth Circuit affirmed the Texas District Court’s ruling allowing Texas to ban emergency abortions in spite of the Emergency Medical Treatment and Active Labor Act (EMTALA). Following a preliminary injunction blocking the U.S. Department of Health and Human Services (HHS) from enforcing the memorandum issued by the Centers for Medicare & Medicaid Services (CMS) on July 11, 2022, the Fifth Circuit found that the Guidance illegally used EMTALA to force emergency room doctors to illegally perform abortions when faced with the decision regarding whether an abortion is medically necessary to stabilize a patient where abortion is banned. More concisely stated, the court held that EMTALA prevents healthcare providers from refusing to treat pregnant patients and unborn children in emergencies—it does not require the provider to perform an abortion. 

Healthcare providers should not risk patient safety in emergency situations because they fear action or inaction is illegal. Educating the medical staff on the dichotomy in how federal and state laws apply in the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will help ensure the safety of the putative pregnant woman from an adverse outcome by allowing the provider to confidently provide the appropriate medically stabilizing treatment without fear of prosecution. Ultimately, understanding the legal scheme will lead to better quality of care.

Learn more about this topic in this author’s article “Navigating the Uncertainty of State Abortion Laws: Suggestions for Hospitals Amid the Rise of Federal Investigations,” recently published by the American Health Law Association (AHLA).

In August, Governor Murphy signed into law Senate Bill 3929 (approved P.L. 2023, c. 139), which amended the involuntary commitment process and added, among other things, a mechanism by which hospitals could request an additional 72 hours to hold patients when having difficulty locating a short-term care or psychiatric facility, or special psychiatric hospital with an available bed and willing to accept transfer of the patient. Given the lack of uniformity of how hospitals throughout New Jersey have historically handled such situations, it is important for hospitals to examine this new law and ensure their policies and processes are in line with the new requirements. For more information, please see our recently published Client Alert.

John W. Kaveney, a partner in the firm’s Healthcare and Litigation Departments, will present the program “The Conclusion of the Public Health Emergencies: What This Means for Healthcare Providers and the Accommodations Put in Place by the Federal and State Governments” at the New Jersey & Metro Philadelphia HFMA 47th Anniversary Annual Institute. The educational session is scheduled for Thursday, September 28, 2023, from 3:10pm – 4:00pm at the Borgata Hotel Casino & Spa in Atlantic City, the location of this year’s Institute. Greenbaum partner and Healthcare Chair James A. Robertson will introduce the program.

Throughout the COVID-19 public health emergencies, the federal government and state governments across the country invoked emergency waivers and various other emergency regulatory authorities to remove practice and treatment barriers and enable practical flexibilities so healthcare providers could rapidly respond to people who were impacted by COVID-19, while also ensuring that the public could continue to access necessary healthcare in a safe and effective manner. Action was also taken to ease the financial pressures on hospitals and other healthcare providers impacted by the influx of COVID-19 patients and the temporary disruption and/or temporary cessation of other healthcare services.

Mr. Kaveney’s presentation will focus on the future of the following accommodations made during the COVID-19 public health emergency and related compliance issues: expanded telehealth services; relaxation of provider licensure requirements; elimination of tort immunity; insurance coverage for COVID-19 treatment, testing, and prevention; enhanced financial support by the federal government; and other accommodations.  

Now that the public health emergencies are coming to an end, some of these temporary accommodations are being extended while others are being terminated. Providers must be prepared to make the appropriate adjustments as we shift to a post-public health emergency world.

Additional information about this year’s Institute, including registration, is available online.

In earlier blog posts from April 26, 2023 and August 23, 2022, we have provided information regarding the Garden State Commercial Property Assessed Clean Energy (C-PACE) program, established by the New Jersey Economic Development Authority (EDA) as a mechanism to finance commercial renewable energy projects, energy efficiency initiatives, electric vehicle charging stations, microgrids, power purchase agreements, and water efficiency and other authorized improvement projects.

The C-PACE program is expected to be a popular option for hospitals and other healthcare sector entities looking to rehabilitate facilities or adopt clean energy initiatives while seeking to avoid the upfront capital expenditures typically required for such projects.

This just-published Client Alert by Greenbaum attorney Maura E. Blau provides an update on the process by which the program will become operational, including the EDA’s August 21, 2023, deadline for accepting public comments.

During the COVID-19 pandemic, the federal government and many state governments went to great lengths to relax many of the restrictions on telehealth that had historically limited this medium in the provision of healthcare services to patients. However, in an effort to ensure that patients could continue to access necessary healthcare during this time period, exceptions had to be made to expand the means by which patients could access healthcare while in isolation. Now, with public health emergencies ending across the country, governments are making decisions as to which aspects of telehealth will return to pre-pandemic protocols and which will be allowed to remain in place as patients have grown accustomed to this alternative means of accessing healthcare services.

Greenbaum partner John W. Kaveney explores many of the decisions that have been made to date regarding telehealth, and discusses some that still must be decided, in an article that recently appeared in the Summer 2023 edition of Garden State Focus, a publication of the New Jersey Chapter of HFMA.