New CMS EMTALA Portal Signals CMS Continued Focus on Enforcement Fight Against State Abortion Bans
Date: May 28, 2024
By:
Rachel Carey
EMTALA (42 U.S.C. § 1395dd; 42 CFR § 489.24) is the only law that guarantees all Americans care at Medicare-participating hospitals that maintain an emergency department when it has been determined there is an emergency condition present. The launch of the new portal comes amongst continued tension between EMTALA and state abortion bans after the Supreme Court of the United States (SCOTUS) heard arguments in two consolidated cases from Idaho (Moyle v. United States, Case No. 23-726 and Idaho v. United States, Case No. 23-727) in April 2024 that addressed the relationship between EMTALA and state abortion bans as it is reviewing whether EMTALA preempts state abortion bans to the extent that those bans conflict with the federal statute’s stabilization requirement.
Key Points of EMTALA
EMTALA entitles individuals seeking treatment at a Medicare hospital emergency department to receive a medical screening to determine if an emergency medical condition exists or if the individual is in labor. If an emergency medical condition is identified, these hospitals must provide stabilizing treatment or an appropriate transfer to a facility capable of providing such treatment. EMTALA mandates that these services be provided regardless of state laws or mandates that may apply to specific medical procedures.
Hospital obligations are triggered when “the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or concerning a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (ii) serious impairment of bodily functions, or (iii) serious dysfunction of any bodily organ or part.” 42 CFR § 489.24. In contrast to several state abortion laws, imminent death is not the only EMTALA medical emergency standard for protections of the statute to apply.
Suppose a screening indicates the presence of an emergency medical condition. In that case, EMTALA requires hospital staff to “stabilize” a patient, which is defined “as “provid[ing] such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility.” 42 CFR § 489.24. Transfers can include a discharge, which cannot occur if the patient is unstable, except under very narrow circumstances in which a patient is transferred from the emergency department to a facility in a medically appropriate manner, granted that the receiving facility has agreed to accept the patient and the receiving facility is better equipped to deal with the medical emergency. Required care under a medical emergency is defined as “further medical examination and such treatment as may be required to stabilize the medical condition,” and care to ensure that “material deterioration” will not occur.
Responsibilities and Preemption
EMTALA contains an expressed preemption provision, which specifies that EMTALA does not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with EMTALA requirements. 42 U.S.C. § 1395dd(f).
The determination of what constitutes an emergency medical condition is the responsibility of the examining physician or qualified medical personnel. EMTALA regulations have specific provisions for emergency care for pregnant women and their unborn children. 42 CFR § 489.24(b). Hospitals are required to ensure that all staff are aware of their obligations under EMTALA to provide necessary examinations or treatments to patients presenting with medical conditions. While EMTALA is written broadly, the law has historically rested on reasonable medical judgment exercised in the middle of an emergency. However, SCOTUS is now reviewing whether EMTALA preempts state abortion bans to the extent that those bans conflict with the federal statute’s stabilization requirement.
Conflict with State Laws
HHS and CMS stances have been that a physician's duty to provide stabilizing treatment under EMTALA takes precedence over any conflicting state laws that might prohibit such treatment. In cases where a pregnant patient is experiencing an emergency medical condition as defined by EMTALA, and abortion is deemed the necessary stabilizing treatment, regardless of the eminence of death, the physician is required to perform the abortion. HHS and CMS further hold that state laws that prohibit abortion without an exception for the life of the pregnant person, or that define the exception more narrowly than EMTALA's definition of an emergency medical condition, are preempted by federal law.
Pre-Dobbs under EMTALA, it was understood by the medical community that emergencies necessitating abortion could arise and that, as a matter of federal law, EMTALA would require an abortion in response to these scenarios. The Dobbs decision in 2022 removed a guaranteed right to an abortion and allowed states more power to regulate or ban abortions. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 217, 142 S. Ct. 2228, 2236, 213 L. Ed. 2d 545 (2022). Post-Dobbs, medical decisions involving emergency abortion care are subject to external state scrutiny in states with abortion bans containing no health exception or a health exception narrower than EMTALA. Medical providers in these states can face both civil and criminal liability for violations of state abortion bans, including loss of license and lengthy prison terms.
Federal law is the “supreme Law of the Land” under the Supremacy Clause of the Constitution and prevails or preempts state law when there is a conflict. Idaho’s abortion ban criminalizes all abortions except for those that are performed in a physician’s good faith medical judgment necessary to prevent the death of the pregnant woman but does not provide a direct exception to preserve the health of a pregnant woman. Idaho Code § 18-622. The United States argued that this law is preempted by EMTALA because it conflicts with EMTALA’s prohibition for a doctor from providing an abortion to maintain the health of the woman by stabilizing a patient experiencing a medical emergency that does not rise to the level of death, even in cases where abortion is the standard of care. The district court agreed and issued an injunction prohibiting Idaho from enforcing the ban to the extent it conflicts with EMTALA. United States v. Idaho, 623 F. Supp. 3d 1096, 1117 (D. Idaho 2022). However, the Ninth Circuit stayed the preliminary injunction, allowing the ban to take full effect while SCOTUS considered the state’s appeal. The Ninth Circuit also voted for rehearing. While rehearing was pending, Idaho asked for relief from SCOTUS. Oral arguments took place in April 2024, and SCOTUS is expected to deliver a decision in summer 2024.
The pending cases demonstrate the difficulty in determining when an abortion can be performed in states with near-total abortion bans. Even in states that offer some exceptions for the health of the mother, the language may be at odds with the definition of an emergency medical condition under EMTALA as the statute contains no physical versus mental health qualifier. Some state exceptions do make this distinction. The cases will also help determine how much deference can be given to individual medical providers so that providers can practice without crushing fears of injuring patients or facing criminal penalties.
Furthermore, the Idaho cases could catalyze the strengthening of states’ power to single out conditions and ban medically appropriate emergency care for those conditions, including cases that extend beyond emergency care. However, HHS and CMS's recent actions to further promote their enforcement muscle under EMTALA should spark providers' attention to review what EMTALA requires and how well they are complying with the law.
Recent Federal Guidance and Investigations
In July 2022, HHS issued guidance to reaffirm that EMTALA requires providers to offer necessary stabilizing care for any patient suffering emergency medical conditions, which may include abortion care in certain situations; however, the enforcement of the guidance is limited in Texas. Specifically, HHS is restricted from enforcing certain interpretations of the EMTALA as outlined in guidance and as outlined in a corresponding letter from HHS Secretary Xavier Becerra after Texas sought an injunction in Texas v. Becerra, 89 F.4th 529, 535 (5th Cir. 2024).
Recent notable investigations include a May 2023 investigation of Freeman Hospital West in Joplin, Mo., and the University of Kansas Health System in Kansas City, Kan., for not offering necessary stabilizing care to an individual experiencing an emergency medical condition. In this instance, providers allegedly failed to provide stabilizing care to a pregnant patient who was advised her pregnancy was no longer viable. Amanda Seitz, "Feds, Hospital that denied emergency abortion broke the law," Associated Press, Published May 1, 2023, 6:52 PM EST. The patient was nearly 18 weeks pregnant when she experienced a premature rupture of membranes. There was also another complaint filed against Oklahoma Children's Hospital in Oklahoma City for denying an abortion to a woman with a dangerous, nonviable pregnancy that fell short of imminent death; therefore, the patient ended up traveling out of state to receive an abortion.
Future Enforcement and Compliance with EMTALA
EMTALA is a cornerstone of American health law, establishing a right to emergency health care based on health endangerment rather than life endangerment. The cases before the Supreme Court will not only decide the fate of emergency abortion care but could also impact the future of emergency medical care in the United States; however, it appears HHS and CMS will continue to push the limits of its enforcement of EMTALA regardless of the outcome. The launch of the new EMTALA portal signals to providers that further scrutiny of compliance is in store in the future. To maintain compliance with EMTALA, hospitals and medical facilities should consider the following recommendations:
- Develop Clear Policies and Procedures
- Establish comprehensive policies and procedures that address the requirements of EMTALA. These should include protocols for MSE, patient transfer, on-call responsibilities, and documentation.
- Regularly review and update these policies to reflect regulation changes and best practices.
- Training and Education
- Provide ongoing education and training for all staff members, including physicians, nurses, administrative personnel, and ancillary staff, on EMTALA requirements and the hospital's specific procedures.
- Conduct regular training sessions to ensure that new employees are educated and that existing staff are reminded of their obligations under EMTALA.
- Medical Screening Examination (MSE)
- Ensure that an MSE is conducted for all individuals who come to the emergency department seeking care. The examination must be conducted by qualified medical personnel.
- The MSE should be designed to determine whether an EMC exists without regard to financial considerations or insurance status.
- On-Call Coverage
- Maintain a list of on-call physicians who can provide treatment for conditions that require specialized care beyond what the emergency department can provide.
- Ensure that on-call physicians are aware of their EMTALA obligations and are available to provide care when needed.
- Patient Transfers
- Implement strict protocols for the transfer of patients, including obtaining the patient's informed consent, ensuring the receiving facility has space and agrees to accept the transfer, and that the transfer is made with appropriate medical care during transport.
- Document all transfers meticulously, including the reason for the transfer and the steps taken to arrange it.
- Record Keeping and Documentation
- Keep thorough records of all patient encounters in the emergency department, including the results of the MSE, any treatment provided, and decisions regarding patient admission, discharge, or transfer.
- Documentation should be clear, timely, and accurate to demonstrate compliance with EMTALA requirements.
- Regular Audits and Compliance Reviews
- Conduct regular audits to ensure that the policies and procedures are followed and that documentation is complete and accurate.
- Use the findings from audits to make necessary adjustments to policies, procedures, and training.
- Risk Management
- Establish a risk management program to identify potential EMTALA compliance issues and develop strategies for mitigating these risks.
- Encourage a culture of compliance and make it easy for staff to report potential EMTALA violations without fear of retribution.
- Legal Review
- Consult with legal counsel experienced in EMTALA to ensure that hospital policies and procedures comply with the latest legal update, especially with how it pertains to state abortion laws.
- Seek legal review of any significant changes to policies or procedures, or when new regulations are issued.
- Consider implementing a special compliance hotline specific to pregnancy and abortion-related cases for providers to reach out to at the moment.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.