New requirements for EMTALA

September 6th, 2019 / By Barbara Aubry, RN

In case you missed the release of the Medicare Learning Network (MLN) Matters article SE19012 on June 27, 2019, I wanted to share some insights for all the compliance folks out there.

As we know, the Emergency Medical Treatment and Active Labor Act (EMTALA) applies to all CMS participating hospitals including Critical Access. New requirements were released that include:

  • Provide medical screening examinations to every individual, including women in labor, their unborn child(ren), and newly born infants protected by the Born-Alive Infant Protection Act when they present for care to dedicated emergency departments, which includes labor and delivery departments, or other locations on the hospital campus;
    • Provide stabilizing treatment within the hospital’s capabilities to any individual, including a born-alive infant, with an emergency medical condition;
    • If unable to stabilize the emergency medical condition, arrange for an appropriate transfer to another hospital with specialized services for the necessary stabilizing treatment; and,
    • Accept appropriate transfers of patients with unstable emergency medical conditions if the hospital has the capabilities and capacity to provide necessary stabilizing treatment.

“EMTALA protections start for an infant at time of birth. A newly born infant is presumed to be presenting with an emergency medical condition and requires a medical screening examination to determine necessary stabilizing treatment. EMTALA requires physicians and other qualified practitioners to provide care within nationally accepted standards of practice. If an infant has an unstabilized emergency medical condition in need of stabilizing treatment, EMTALA continues to apply. If the hospital has the capabilities to stabilize the emergency medical condition, it is required to do so. If not, the hospital must arrange an appropriate transfer of the infant to a hospital with specialized capabilities and capacity, while providing care until the transfer is effectuated. Once the infant is admitted in good faith to stabilize the emergency medical condition, EMTALA no longer applies. The Centers for Medicare & Medicaid Services (CMS) hospital or critical access hospital Conditions of Participation apply throughout the hospital stay.”

If patients have a concern or a complaint regarding EMTALA protected services, they can “be reported to the State Survey Agency or the CMS Regional Office for evaluation and possible investigation. Complaints can be generated by:

  1. Patients
  2. Family members
  3. Healthcare professionals
  4. Other interested parties

The enforcement of EMTALA is a complaint driven process. It is important to note that as a complaint driven process, EMTALA is not a mechanism for immediate response at the time of any occurrence, in this instance at the time of delivery of a born-alive infant.

The CMS Regional Office evaluates the complaint allegations to determine if criteria are met for onsite investigations and, if so, authorizes the State Survey Agency to investigate. While onsite, surveyors review compliance with all EMTALA requirements and, if applicable, the Conditions of Participation. The investigation is accomplished by reviewing medical records, patient logs including transfers in and out, on-call physician and staffing schedules, policies and procedures, and other documentation. Surveyors interview patients, family members, and hospital staff and may perform observations of patient and staff processes while onsite.

After the onsite survey the CMS Regional Office sends the EMTALA case to Quality Improvement Organization expert physician reviewers to evaluate the provision of medical, surgical, obstetric, psychiatric or other type of care provided. The physician reviewers evaluate the care, or lack of care, provided in accordance with national standards of practice. It is outside the scope of State Survey Agency or Regional Office surveyors to determine if the care provided was appropriate; this determination is the responsibility of the Quality Improvement.”

My Take

EMTALA is an important protection for all patients including newborns. It is essential that prenatal providers discuss with their pregnant patients and family members what their treatment preferences are in case of emergencies. This should include the review of potentially difficult pregnancy outcomes and possible healthcare decisions.

EMTALA does not replace prenatal care.

Barbara Aubry is a regulatory analyst for 3M Health Information Systems.


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