HHS and CMS to issue series of EMTALA guidance notices applicable to hospitals and patients

The Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) announced on January 22, 2024 a series of actions and educational resources relating to the federal Emergency Medical Treatment and Labor Act (EMTALA) for Medicare-certified hospitals and patients in the US.

In response to an increasing number of questions from patients relating to EMTALA rights, and those of providers, like hospitals and physicians concerning EMTALA compliance, HHS indicated  that it is developing a “comprehensive plan” that includes: 

• Issuing informational resources on CMS’s website to help patients understand their EMTALA rights and submitting a compliant to HHS if they were refused treatment in a hospital emergency department;
• Providing hospitals and provider associations with training materials on EMTALA requirements; 
• Meeting with hospital and provider associations to discuss EMTALA compliance challenges and best practices; and
• Creating a team within HHS to increase the Department’s ability to assist hospitals on complying with EMTALA.

CMS’s EMTALA informational resources webpage for patients currently provides a summary of  rights afforded to patients under EMTALA, including notice that the hospital is responsible for administering an appropriate medical screening exam to determine if the patient has an emergency medical condition, as a condition of participation to remain certified in the Medicare program. Failure to maintain this certification can domino into losses in certification for Medicaid and other commercial contract termination. The website reminds patients that if a patient has an emergency medical condition, the hospital must offer to treat the patient until his or her condition is stable, and only when the condition is stable, may the patient be transferred. These are not new requirements, but the notice and focus on patient and provider education signal an intent by the Administration and CMS to enforce these provisions more aggressively.

In addition to providing other primers on EMTALA rights and anti-discrimination resources for patients, CMS provides a link for patients to submit complaints to the State Survey Agency in the state where the hospital is located if patients believe their EMTALA rights have been violated. 

HHS and CMS make clear in their announcement that the Biden-Harris administration remains committed to assisting providers and patients in understanding their emergency care responsibilities and rights, including abortion care in certain circumstances. In July 2022, CMS put out EMTALA guidance to remind hospitals of their existing EMTALA obligations in the wake of the Dobbs v. Jackson Women’s Health Organization US Supreme Court decision (previous Norton Rose Fulbright client alert available, "CMS issues clarifying EMTALA memorandum in the wake of Dobbs"). The Supreme Court will hear oral arguments in Idaho v. Becerra, a case filed by the US Department of Justice against Idaho’s abortion law in which they argue that EMTALA preempts the state’s law, in April 2024. 

Norton Rose Fulbright attorneys will continue to monitor new education and guidance from CMS and HHS related to EMTALA obligations and is available to answer questions and assist hospitals with ensuring their compliance and risk departments have effective EMTALA compliance strategies.