Exclusion from Medicare and Medicaid: The Ultimate EMTALA Sanction (42 CFR § 489.24(l))

EMTALA’s enforcement structure allows CMS to terminate a hospital’s Medicare provider agreement for serious or repeat violations. Although the regulation centers on hospitals, affiliated clinicians, contracted groups, and off-campus practices can shape the factual record that leads CMS toward or away from termination. A missing log entry, an incomplete transfer record, or inconsistent documentation from an affiliated clinic can become pivotal evidence during CMS review.

Small practices need to understand their role in this process because exclusion disrupts the entire care ecosystem. The goal of this article is to provide practical, low-cost steps to ensure that small practices consistently produce documentation and decision-making evidence that withstands CMS scrutiny and helps prevent escalation toward sanctions authorized under 42 CFR 489.24(l).

Understanding Legal Framework & Scope Under 42 CFR 489.24 l

1. Core Authority

Under 42 CFR 489.24(l), CMS may terminate a hospital’s Medicare provider agreement if it determines that the hospital is not in compliance with EMTALA’s requirements, particularly when deficiencies pose immediate jeopardy to patient health or safety. Termination ends all Medicare payments and effectively excludes the hospital from the program.

2. Why Small Practices Must Care

Even though the termination order applies to hospitals, CMS evaluates the entire emergency care ecosystem when determining whether a violation occurred. Documentation or conduct originating in off-campus settings, contracted physician groups, or partner clinics contributes to CMS’s overall factual assessment.

3. Termination Criteria

CMS considers termination when:

●      A violation constitutes immediate jeopardy.

●      Required screening or stabilization was not performed.

●      On-call physicians failed to respond.

●      Transferring procedures lacked risk-benefit balancing.

●      Repeated deficiencies demonstrate systemic noncompliance.

4. Interaction With OIG Sanctions

While CMS can terminate participation, the OIG enforces civil monetary penalties. In severe cases, both actions may occur simultaneously. Termination is the most devastating of all sanctions because it halts all federal payer reimbursement.

5. Federal vs State Authority

State health departments may supply data to CMS, but only CMS can terminate the Medicare provider agreement. Federal EMTALA termination authority supersedes state-based corrective action pathways.

Understanding this framework helps small practices align their processes to ensure that their documentation strengthens the hospital’s defense and does not inadvertently expose the system to termination-level risk.

CMS conducts the termination review, but OIG evaluates whether civil monetary penalties should accompany or replace exclusion. Termination almost always follows a detailed investigation under 42 CFR 489.24(g), and the decision is based on verified evidence. Surveyors interview clinicians, review records, analyze logs, validate timelines, and assess operational workflows.

Common Triggers for Termination-Level Review

• A death or major harm event linked to failed screening.

• A patient turned away without a medical screening examination.

• An improper transfer resulting in clinical deterioration.

• A no-show or delayed response by an on-call physician.

• Multiple EMTALA complaints within a short period.

Small practices should be alert to these signals because their documentation will be reviewed alongside the hospital’s records.

These controls help small practices avoid contributing to termination-level EMTALA violations. Each step ties directly to 42 CFR 489.24(l) by reinforcing documentation and workflows used during CMS termination reviews.

1. Create an EMTALA Deficiency Rapid-Response Folder

CMS expects swift corrective action when deficiencies surface.

• Implementation: Build a folder containing updated policies, corrective action templates, response scripts, witness statement forms, and incident reconstruction tools.

• Evidence: A timestamped folder with corrective action materials ready for CMS or hospital leadership.

• Low-cost option: A shared drive with read-only access for clinical leads.

2. Strengthen Documentation Around High-Risk Encounters

Termination cases often involve screening or stabilization failures.

• Implementation: Require full notes with vitals, assessments, pain scales, interventions, and disposition.

• Evidence: Detailed, time-stamped records showing compliance with EMTALA screening and stabilization expectations.

• Low-cost option: EHR templates preloaded with required fields.

3. On-Call Physician Communication Logs

Lack of response is a major termination trigger.

• Implementation: Maintain exact time of calls, mode of communication, clinician responses, and any escalation steps.

• Evidence: Logs demonstrating timely and appropriate engagement.

• Low-cost option: Digital spreadsheet or secure shared log.

4. Transfer Decision Support Documentation

Incomplete transfer documentation is a red flag.

• Implementation: Use a standardized form listing risk-benefit analysis, receiving physician acceptance, and transport method.

• Evidence: Completed forms showing compliance with EMTALA transfer rules.

• Low-cost option: Pre-printed checklist attached to encounter packet.

5. Escalation Protocol for Unstable or Unknown Diagnoses

When emergencies are ambiguous, CMS expects strong evidence of clinical judgment.

• Implementation: Staff should escalate unclear cases to the supervising clinician and document rationale.

• Evidence: A clear note describing why escalation occurred.

• Low-cost option: One-page escalation flowchart.

6. Cross-Documentation Alignment With Hospital Records

In termination cases, CMS compares all records for consistency.

• Implementation: Align time stamps, transfer notes, and routing decisions with hospital’s logs.

• Evidence: Harmonized records that tell a coherent story.

• Low-cost option: Shared timestamp conversion guidelines.

7. Immediate Incident Reconstruction When Concerns Arise

CMS looks for evidence integrity.

• Implementation: Create a timeline using logs, screening notes, call records, and transfer documents.

• Evidence: A complete chronological reconstruction stored in the Rapid-Response Folder.

• Low-cost option: Spreadsheet timeline templates.

These actions significantly reduce the risk that a small practice’s documentation or workflows will contribute to termination-level findings.

Case Study

A mid-sized hospital received a CMS complaint after a patient with severe respiratory distress was routed from an affiliated off-campus clinic to the emergency department without documentation of a medical screening examination or stabilization efforts. The patient deteriorated during transport and died shortly after arrival.

CMS Findings Under 42 CFR 489.24(l)

• No evidence of medical screening.

• No documentation of escalation to an on-call provider.

• Missing vitals and assessment details.

• Transfer lacked documented risk-benefit analysis.

• Staff provided conflicting accounts.

Consequences

• CMS declared immediate jeopardy.

• Medicare termination procedures were initiated.

• The hospital entered a short-window corrective action plan.

• The affiliated clinic was required to restructure its emergency evaluation protocols.

• Media exposure damaged community trust.

How the Operational Playbook Would Have Helped

The Rapid-Response Folder and aligned logs would have provided:

• Proof of timely screening

• Evidence of escalation

• Completed transfer risk-benefit forms

• A consistent reconstructed timeline

This documentation could have prevented the case from escalating to termination-level scrutiny.

Common Audit Pitfalls to Avoid Under 42 CFR 489.24 l

CMS termination decisions frequently stem from several predictable errors.

• Incomplete or absent medical screening documentation, creating high-risk evidence gaps.

• Missing or contradictory transfer notes, raising questions about compliance.

• Failure to document communication with on-call physicians, suggesting systemic noncompliance.

• Delayed or retrospective notes, undermining evidence credibility.

• Lack of alignment between clinic and hospital records, suggesting operational dysfunction.

• No incident reconstruction, preventing CMS from validating the facts.

Avoiding these pitfalls strengthens documentation integrity and helps keep the system far from termination-level risk.

To prevent exclusion-level events, clinics must integrate EMTALA readiness into everyday culture. Leadership should assign responsibility for maintaining the Rapid-Response Folder, monitor high-risk encounters, and ensure that escalation pathways are clear. Training must be brief but recurrent, focusing on screening expectations, on-call communication, and documentation accuracy. Simple indicators, such as monthly screening completeness scores or transfer form audits, can signal whether the clinic is drifting toward compliance risk.

Exclusion from Medicare and Medicaid is the ultimate enforcement outcome under EMTALA and represents a catastrophic event for any healthcare system. Small practices play a significant role in shaping the factual record reviewed by CMS under 42 CFR 489.24(l). By strengthening documentation, aligning communication, and preparing for rapid corrective action, clinics can protect themselves and their partner hospitals from termination-level outcomes.

Immediate Next Steps

1. Build or update the EMTALA Rapid-Response Folder.

2. Standardize documentation for high-risk screening encounters.

3. Implement and audit on-call communication logs.

4. Use a transfer risk-benefit checklist for all relevant cases.

5. Conduct quarterly reviews to align clinic and hospital documentation.

Recommended compliance tool

A shared “Medicare Plan Interaction” log and policy folder on your existing network or EHR, used to store scripts, training records, and any sponsor correspondence about beneficiary communications. 

Advice:

Before the next open enrollment, walk through your clinic as an auditor would and remove or rewrite anything that could be interpreted as recommending one Part D plan over another.

• EMTALA Regulations – 42 CFR 489.24
  

• CMS State Operations Manual, Appendix V – EMTALA Guidelines
  

• Emergency Medical Treatment and Labor Act (42 USC 1395dd)
  

• Federal Register EMTALA Interpretive Guidance
  

• HHS Office of Inspector General – Civil Monetary Penalties Law Guidance