Medicare Compliance & Reimbursement

Patient inquiries cause HHS and CMS to offer public education resources.

As the courts continue to battle over patients’ access to emergency care post-Dobbs, the feds have issued fresh guidance on hospitals’ responsibilities and a promise to help.

New: On Jan. 22, the Department of Health and Human Services (HHS) in coordination with the Centers for Medicare & Medicaid Services (CMS) announced an educational initiative to help patients understand their rights to emergency care, no matter the circumstance. The feds also intend to support hospitals to better fulfill their EMTALA obligations, indicates CMS in a release.

Refresher: The Emergency Medical Treatment and Labor Act (EMTALA) guarantees that individuals, whether or not they are insured, have the right to emergency examination and treatment under the law. For hospitals and emergency departments (EDs) to remain in compliance with EMTALA — and that includes facilities that receive Medicare funds — they must perform the following three actions, warns CMS:

1. Offer the patient an appropriate medical screening exam;
2. Treat the patient until the condition is stabilized; and/or
3. Transfer the patient to a facility that can treat and stabilize the patient’s condition.

Here’s Why CMS Is Offering Guidance and Assistance

First: During the COVID-19 public health emergency (PHE), CMS relaxed the EMTALA requirements as EDs were strained across the country. Those flexibilities ended with the PHE on May 11, 2023, and the feds went back to enforcing the law.

Next: In the midst of the PHE, the U.S. Supreme Court dropped the Dobbs decision in June 2022, revoking Roe vs. Wade. Since that landmark ruling, hospitals have had to navigate state and regional laws against the requirements of the federal regulation (see Medicare Compliance & Reimbursement, Vol. 49, No. 11). This case caused CMS to issue a memorandum in July 2022, reminding hospitals of their obligations under EMTALA to care for ALL patients.

The CMS memo coupled with a letter from HHS Secretary Xavier Becerra in July 2022 spurred a slew of court cases, including Texas vs. Becerra, in which the longhorn state and two provider organizations argued that HHS and CMS were overstepping with their guidance.

The court eventually sided with Texas and the organizations, explain attorneys Thomas Barker, Alexander Somodevilla, and Kian Azimpoor with law firm Foley Hoag LLP. “On August 23, 2022, the trial court agreed with the plaintiffs, finding that the guidance exceeded HHS’ statutory authority, and that the agency was also required to promulgate the guidance through notice and comment rulemaking, but failed to do so,” Barker, Somodevilla, and Azimpoor write in online guidance. “Since that time, HHS has been enjoined from enforcing the guidance and its interpretation regarding the scope of EMTALA’s requirements in the state of Texas and against the provider organizations also parties to the suit,” they continue.

January updates: HHS followed up the lower court’s decision with a filing in the 5th Circuit Court of Appeals. On Jan. 2, 2024, the 5th Circuit ruled with the lower court that HHS’ interpretation of stabilizing treatment under EMTALA cannot be enforced, especially in regards to abortion. “The Fifth Circuit found that the EMTALA statute does not explicitly address the question of whether abortion can ever be the required form of stabilizing care under EMTALA’s obligations,” the Foley Hoag lawyers note. “And the Medicare statute as a whole generally prohibits HHS from interfering with the practice of medicine or the manner in which medical services are provided,” they add.

On Jan. 5, in a separate case, SCOTUS lifted a lower court’s injunction on Idaho’s abortion law, paving the way for criminalizing abortion even as a life-saving measure. With the injunction lifted, “providers must comply with the strict terms of Idaho’s abortion law regardless of their legal obligations under EMTALA,” explains attorney Cameron McCue with law firm Holland & Hart LLP in online analysis.

Take a Look at the ‘Comprehensive Plan’

CMS and HHS propose a “series of actions” to help providers and patients comply with EMTALA. The four-prong approach includes the following updates from CMS on how the agency, and HHS as a whole, will work to improve patients’ access to care and help providers too:

• Compile new informational resources for patients that includes assistance on how to file a complaint against a provider.
• “Partner with hospital and provider associations to disseminate training materials on providers’ obligations under EMTALA.”
• Collaborate with stakeholders — hospitals and healthcare provider organizations — to improve providers’ EMTALA understanding and compliance.
• Institute a task force of EMTALA experts to help hospitals and providers comply with the federal regulations.

“The Biden-Harris Administration remains focused on working with doctors, hospitals, and patients to promote patient access to the care that they are entitled to under federal law and has long taken the position that this required emergency care can, in some circumstances, include abortion care,” CMS adds. “The U.S. Department of Justice is currently defending that understanding before the Supreme Court.”

The Supreme Court is expected to hear oral arguments in April concerning its decision on the Idaho abortion ban.

Resource: Find CMS’ new EMTALA informational materials and links to patient and provider assistance at www.cms.gov/ priorities/your-patient-rights/emergency-room-rights.