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.