On July 11, 2022, Department of Health and Human Services (“HHS”) Secretary Xavier Becerra issued a letter outlining obligations and protections under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) with regard to the clinical judgment and treatment actions undertaken by health care providers in their evaluation and care of pregnant patients. On the same day, the Centers for Medicare and Medicaid Services (“CMS”) released surveyor guidance intended to “remind hospitals of their existing obligation to comply with EMTALA.” Both the letter and the surveyor guidance (collectively, the “Guidance”) underscore the Biden administration’s position that EMTALA requires health care providers to provide abortion services when such services are necessary to stabilize a pregnant patient with an emergency medical condition. The Guidance further sets forth the administration’s position that EMTALA preempts any state laws with conflicting requirements, including state laws that restrict the provision of abortion services.
Overview
The Guidance emphasizes that EMTALA’s requirements are not affected by the United States Supreme Court decision in Dobbs v. Jackson Women’s Health, and seeks to remind providers that EMTALA protects the clinical judgment and professional and legal duty of hospital providers in determining whether a patient has an emergency medical condition. The Guidance further states that if abortion services are required to stabilize an emergency medical condition, the hospital must either provide such services, or, if the services are not within the capability of the hospital, arrange an appropriate transfer to a facility that can provide the services. The Guidance clarifies that if the patient has an emergency medical condition requiring abortion services and the hospital is capable of providing such services, neither the hospital nor individual providers may cite State Law restricting abortion as the basis for transferring a patient instead of providing abortion as a stabilizing treatment. Finally, the Guidance states that when a State Law prohibits abortion and does not include an exception to protect the life and health of the pregnant patient, or draws the exception more narrowly than EMTALA’s definition of an emergency medical condition, State Law is preempted.
In the surveyor guidance, CMS provided examples of how EMTALA may be implicated in situations involving pregnant patients, including ectopic pregnancy, complications of pregnancy loss or preeclampsia with severe features. CMS went on to say that if in the treating provider’s medical judgment, necessary stabilizing treatment for a given emergency medical condition includes abortion services, the provider must provide such stabilizing treatment regardless of State Law restricting or prohibiting the provision of abortion services. The surveyor guidance also emphasizes that EMTALA requires the provision of stabilizing treatment to “prevent material deterioration and compels hospitals and physicians to act prior to the patient’s condition declining.”
EMTALA as a Shield
The Guidance states that EMTALA’s preemption of State Law can be used to protect health care providers in a number of ways, including “as a defense to a state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or, when a physician has been disciplined for refusing to transfer an individual who had not received the stabilizing care the physician determined was appropriate, under [EMTALA’s] retaliation provision.”
EMTALA as a Sword
While simultaneously highlighting EMTALA’s potential use as a defense for actions against health care providers, the Guidance also reiterates the enforcement mechanisms available to CMS and HHS for hospitals and health care providers that fail to comply with the Guidance. Specifically, the Guidance emphasizes that a hospital violating EMTALA may be subject to civil monetary penalties or termination of its Medicare provider agreement, and individual physicians violating EMTALA may be subject to civil monetary penalties or exclusion from Medicare and state health care programs. The Guidance reminds providers – and communicates to the public – that enforcement of EMTALA is a complaint-driven process, and provides mechanisms for submitting complaints for potential EMTALA violations.
Risk Landscape
The Guidance immediately resulted in public challenges from states that have significantly restricted the availability of abortion services. On July 14, 2022, the State of Texas filed a complaint against HHS and CMS, alleging that the Guidance constitutes an overreach of federal authority and introduces new regulatory obligations affirmatively requiring hospitals to provide abortion services. Until litigation more definitively resolves the issues raised by the Guidance, Medicare‑participating hospitals and health care providers that provide emergency services to pregnant patients in states with restrictive abortion laws will be navigating murky waters. State laws restricting abortion may impose significant civil or criminal penalties on both hospitals and individual health care providers. At the same time, the Guidance communicates to the public that CMS views failure to provide abortion services, when those services constitute necessary stabilizing treatment for an emergency medical condition, as an EMTALA violation that may subject the provider to monetary penalties or exclusion from federal health care programs.
Practical Takeaways
Hospitals and health care providers should consider undertaking the following actions in response to the Guidance:
- Closely monitoring ongoing developments, including challenges to the Guidance expressly applying EMTALA to abortion-related services;
- Reviewing current standards of care involving treatment of pregnancy-related emergencies;
- Reminding physicians and staff that the Dobbs decision did not change providers’ responsibilities under EMTALA, including the requirement to provide a medical screening examination and necessary stabilizing treatment of any emergency medical condition;
- Reviewing current hospital EMTALA policies and procedures, and revising them as necessary, to ensure they are consistent with the Guidance, particularly with respect to conduct that may also be addressed by a state’s abortion laws; and
- Working with professional organizations, hospital associations and state legislators to clarify obligations with respect to emergency treatment of pregnant patients.
If you have questions regarding the Guidance or your responsibilities to treat pregnant patients under EMTALA, or would like assistance in reviewing and updating your EMTALA policies and procedures, please contact:
- Jennifer Skeels at (317) 977-1497 or jskeels@wp.hallrender.com;
- Katherine Kuchan at (414) 721-0479 or kkuchan@wp.hallrender.com;
- Megan Culp at (317) 429-3644 or mculp@wp.hallrender.com;
- Kathryn Costanza at (303) 801-3534 or kcostanza@wp.hallrender.com;
- Caitlin Bell-Butterfield at (919) 228-2408 or cbell-butterfield@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
