CMS Clarifies That in Medical Emergencies Involving Pregnant Patients, EMTALA Preempts State Laws Prohibiting Abortions

The Centers for Medicare & Medicaid Services (CMS) released a memorandum on July 11, 2022, clarifying that the federal Emergency Medical Treatment and Active Labor Act (EMTALA) protects healthcare providers giving clinically necessary pregnancy termination services in emergency situations, regardless of state law prohibiting or restricting abortions. CMS emphasized that EMTALA preempts state law and that hospitals or physicians who violate EMTALA can lose Medicare certification and face civil monetary penalties. CMS also views EMTALA as a potential defense against state law actions seeking to enforce state abortion laws against hospitals and physicians.

CMS's clarification comes in the wake of the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, which held the federal constitution does not protect abortion, so it does not limit abortion restrictions imposed by the states. EMTALA, which applies to every Medicare-participating hospital with an emergency department (ED), imposes three major requirements:

• (1) a hospital must provide an appropriate medical screening examination to determine whether a patient seeking evaluation and/or treatment in the ED (or elsewhere on the hospital campus in some circumstances) has an emergency medical condition (EMC);
• (2) the hospital must provide stabilizing treatment within the hospital's capability and capacity if the patient is determined to have an EMC; and
• (3) the hospital must arrange for an appropriate transfer of a patient with an EMC that the hospital cannot stabilize, to another facility that can provide the stabilizing treatment.

CMS's memorandum confirms that in the federal government's view, state laws limiting or prohibiting abortion do not impact any of these EMTALA requirements. Complicating the situation for providers, CMS's position on EMTALA preemption of state law could well be challenged in states where abortion is prohibited. Indeed, Texas already filed such a lawsuit in Texas federal district court on July 14, 2022. (See below.)

Medical Screening Examination

CMS reminded hospitals that once an individual to whom EMTALA applies presents to the ED or hospital or elsewhere on the hospital campus, if applicable, the hospital must provide a medical screening examination appropriate to the individual's presenting signs and symptoms. The examining physician or other qualified medical person (QMP, as designated in the hospital's medical staff bylaws or rules) determines whether an EMC exists. The medical record should reflect continued appropriate monitoring until the treating clinician or QMP determines whether an EMC exists and, if so, until the patient is stabilized or appropriately transferred. As has always been the case, failure to provide an appropriate medical screening examination to a pregnant patient who presents seeking emergency services may violate EMTALA. Thus, avoidance of screening that might indicate the need for emergency pregnancy termination could be considered a violation of EMTALA. Pregnancy itself is not an EMC, but labor (other than false labor as determined by a physician or other QMP) is defined as an EMC under EMTALA. Examples of other pregnancy-related conditions that may constitute EMCs and for which a hospital may need to screen a pregnant patient include (but are not limited to) ectopic pregnancy, preeclampsia with severe features, and emergent hypertensive disorders.

Stabilizing Treatment

CMS emphasized that if a physician or other QMP determines a patient's EMC requires stabilizing treatment to prevent serious jeopardy to the patient's health, the hospital is required to provide the treatment. Thus, the agency maintains that if termination of the pregnancy is clinically necessary to stabilize a pregnant patient's EMC, that treatment must be provided, so long as the hospital has the capability and capacity. Such stabilizing treatment could involve medical and/or surgical interventions including (but not limited to) methotrexate therapy, dilation and curettage (D&C), remove of fallopian tubes, and anti-hypertensive therapy treatments. Note that if a state's law defines "abortion" similarly to California, i.e., as "any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth" (emphasis added), then treatment intended to stabilize an EMC is not an abortion (even if it will have the collateral effect of terminating the pregnancy), so it should not trigger application of that state's laws restricting or prohibiting abortion.

In addition, CMS stated the treating clinician need not wait for a condition to worsen in order for stabilizing treatment to be protected by EMTALA. In a Stakeholder Call on July 12th, CMS representatives used ectopic pregnancy as an example. Because an ectopic pregnancy could be life-threatening or otherwise seriously jeopardize the health of a patient who has presented to the ED, stabilizing treatment that terminates the pregnancy would be protected by EMTALA, even if the danger to the pregnant patient is not immediate.

CMS further noted EMTALA also may apply to a hospital's Labor & Delivery department (or another department) if one-third of the visits to the department in the previous calendar year resulted in treatment for EMCs on an urgent (without appointment) basis—which means the L&D department would meet the EMTALA definition of a "dedicated emergency department") . Thus, EMTALA also might protect pregnancy terminations in a unit such as L&D in certain situations.

Transfer

CMS stressed that a hospital cannot cite state law or practice as the basis for transferring an individual to another facility or refusing to arrange an appropriate transfer to another facility where appropriate under the circumstances. Specifically, a hospital that has the capability and capacity to provide appropriate screening and necessary stabilizing treatment cannot transfer an individual to avoid having to provide treatment the hospital believes would violate state law. Similarly, if a transfer is needed, the treating clinician must effectuate the transfer in accordance with the EMTALA transfer requirements, regardless of whether that might violate state law.

Preemption of State Law

In the July 12 Stakeholder Call, CMS representatives noted EMTALA protects physicians' clinical judgment, regardless of the state in which a physician practices. CMS stated that the " EMTALA statute requires that all patients receive an appropriate medical screening, stabilizing treatment, and transfer, if necessary, irrespective of ay state laws or mandates that apply to specific procedures." CMS believes that EMTALA's preemption of state law could be invoked effectively by individual clinicians via the following mechanisms:

• As a defense to state enforcement action
• In a federal lawsuit seeking to enjoin threatened enforcement
• As a defense to hospital disciplinary action, based on EMTALA's provision prohibiting retaliation for complying with EMTALA

CMS's July 2022 guidance does not address state laws penalizing individual patients who undergo prohibited abortions because that situation is outside the scope of EMTALA. In a state that imposes penalties for undergoing abortions and does not provide medical exemptions (which most states do), individual patients could face penalties even though hospitals and physicians are protected by EMTALA. This consideration does not exempt a hospital or treating clinician from complying with EMTALA but could affect whether a patient consents to an abortion. A pregnant patient with an EMC also might refuse an abortion if the patient believes the baby might survive even if the patient succumbs to the life-threatening EMC. This aspect of the interplay between EMTALA and state law underscores the importance of documenting informed consent or refusal of consent for treatment that will terminate a pregnancy.

EMTALA Penalties

EMTALA violations can result in civil monetary penalties: up to $119,942 per violation for a physician or for hospitals with more than 100 beds, and $59,973 per violation for hospitals with under 100 beds. CMS also may exclude a physician from participating in Medicare and joint federal-state health care programs such as Medicaid and/or terminate a hospital's Medicare provider agreement.

EMTALA Guidance in the Context of Supreme Court Upholding CMS Vaccine Mandate

The CMS EMTALA guidance comes a few short months after the U.S. Supreme Court upheld in Biden versus Missouri CMS's authority to mandate COVID-19 vaccinations for individuals working in certain Medicare- or Medicaid-certified provider locations. In the January ruling, the Supreme Court held that CMS's vaccination mandate falls within the authorities Congress granted to the federal Department of Health and Human Services (HHS, the larger agency of which CMS is a part), specifically that HHS can impose conditions on the receipt of Medicare and Medicaid funds that HHS "finds necessary in the interest of the health and safety of the individuals who are furnished services." The Court stated that one of the most basic functions of HHS is "to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients' health and safety." If EMTALA's protection of pregnancy termination as stabilizing treatment for pregnancy-related EMCs is challenged, the Supreme Court might take a similar approach to its analysis in Biden versus Missouri. However, the CMS vaccine mandate falls under the Medicare Conditions of Participation, while compliance with EMTALA is a requirement of provider agreements and a special responsibility of Medicare-participating hospitals in emergency cases. Thus, the Supreme Court might rule differently in the EMTALA context based on this distinction.

First Legal Challenge to CMS's Guidance

Texas sued HHS on Thursday July 14, 2022, in the U.S. District Court for the Northern District of Texas, asking the court to set aside the guidance as unlawful, declare HHS’s actions unlawful, and issue preliminary and permanent injunctions prohibiting HHS from enforcing the guidance. Texas argues the guidance is ultra vires under the Constitution, the 10th Amendment, and the Social Security Act (of which EMTALA is a part); is arbitrary and capricious; violates the Administrative Procedure Act; conflicts with federal law that prohibits the federal government from discriminating against hospitals that do not provide abortions; and conflicts with the Hyde Amendment, which narrowly limits federal funding of abortions. Other states may file challenges based on similar and/or additional legal theories.

Next Steps

Medicare participating hospitals with EDs—particularly facilities operating in states that have prohibited or substantially restricted abortion or which appear likely to do so—should ensure their EMTALA policies and procedures—as well as their required training of ED personnel and hospital administrators—educate personnel to understand both how to comply with EMTALA and also how EMTALA interacts with state law.