CMS warns hospitals: Remember EMTALA obligations, particularly with pregnant patients

By A.J. Plunkett (aplunkett@decisionhealth.com)

Even as some hospitals are setting their sights on post-pandemic recovery, many others across the nation are facing COVID-19 patient surges that are overwhelming emergency rooms and intensive care units.

The Joint Commission acknowledges that surges could impact regularly scheduled triennial surveys. However, despite the surges CMS also wants to remind hospitals of their obligations under the Emergency Medical Treatment and Labor Act (EMTALA).

CMS issued a Quality, Safety & Oversight Group (QSO) memo Friday September 17 on “Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss.”

The memo, QSO-21-22-Hospitals, not only reminded hospitals to “ensure all staff who may come into contact with a patient seeking emergency care are aware of the hospital’s obligation under EMTALA,” but had an express message for clinicians.

“A physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment,” said the memo’s summary.

“Patients, including pregnant people, are entitled to the full rights and protections afforded under this federal statute.”

The memo also noted several hospital Conditions of Participation (CoP) in Medicare that were apart from EMTALA, which requires hospitals to screen and stabilize patients with emergent conditions regardless of their ability to pay and before sending the patient to another hospital if that is necessary for treatment.

Noting that EMTALA does not apply to inpatients, hospitals are “still bound by” the Medicare CoP, according to the memo:

• “In particular, four CoPs are potentially applicable when a hospital provides treatment for an admitted patient. For example, the governing body must ensure that the medical staff as a group is accountable to the governing body for the quality of care provided to patients (42 C.F.R. 482.12(a)(5)).
• “Further, the discharge planning CoP (42 C.F.R. 482.43), which requires that hospitals have a discharge planning process, applies to all patients. Hospitals must also have an organized medical staff that is responsible to the hospital’s governing body for the quality of medical care provided to patients (42 C.F.R. 482.22).
• “Finally, the hospital governing body must ensure that the hospital has an organization-wide quality assessment and performance improvement program to evaluate the provision of patient care (42 C.F. R. 482.21).
• “These CoPs are intended to protect patient health and safety, and to ensure that high quality medical care is provided to all patients. Failure to meet these CoPs could result in a finding of noncompliance at the condition level for the hospital and lead to termination of the hospital’s Medicare provider agreement.”

CMS noted that nothing in the memo was new but was simply reiterating current requirements.

The memo further outlined the specific requirements under EMTALA, including the care of pregnant patients, and noted that hospitals that not only do organizations face civil monetary penalties if a complaint investigation validates an EMTALA violation but also termination of its Medicare provider agreement.

It also notes that individual physicians “may also be subject to exclusion from the Medicare and Medicaid programs.”

COVID spike could impact surveys

In addition to the CMS reminder, The Joint Commission (TJC) has also advised the hospitals and other organizations facing accreditation surveys in COVID surge areas that it is monitoring the situation and will reach out before arriving to ensure it is safe for an onsite visit.

“In counties with a high number of COVID-19 cases, The Joint Commission will be contacting those impacted organizations, if appropriate, to determine their ability to proceed with an on-site survey. We understand that the pandemic may be significantly impacting these organizations and that it may not be a safe or appropriate time for us to conduct an on-site survey,” according to a memo to clients provided by TJC.

Offsite survey and review activities in some programs may continue, while other surveys will be postponed, according to the memo, which was posted to TJC’s Extranet site and is only accessible to accredited organizations.

TJC officials said any onsite surveys will still be conducted using CDC recommendations on social distancing and other infection prevention and control measures.

In addition. TJC has said that it will also adhere to the hospital’s COVID requirements, including if an organization requires vaccinations or testing before allowing staff on site. About 90%of TJC surveyors have been vaccinated, according to consultants.

In another memo posted on TJC’s Extranet, TJC says that any organization facing a full accreditation survey that has its onsite visit postponed because of the pandemic will continue to be accredited until it is safe to conduct an onsite survey.