On May 1, 2023, the Centers for Medicare and Medicaid Services (“CMS”) announced two investigations of hospitals that failed to offer necessary stabilizing care to a pregnant individual experiencing an emergency medical condition (“EMC”), in violation of the Emergency Medical Treatment and Labor Act (“EMTALA”). The U.S. Department of Health and Human Services (“HHS”) released a public statement and a letter to hospitals and provider associations, emphasizing the obligations of Medicare-participating hospitals’ under EMTALA, including stabilizing treatment, like abortion care, or an appropriate transfer. These investigations represent the first EMTALA enforcement action related to abortion emergency care since the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (“Dobbs”).

The investigations relate to a pregnant patient who had a premature rupture of membranes at 18 weeks and was advised that the pregnancy was no longer viable. The patient’s providers at hospitals in Missouri and Kansas informed the patient that, although her condition could rapidly deteriorate, they could not provide the care that would prevent serious infection, hemorrhage, and potential death, for reasons which included that the fetal heartbeat was still detectable and that the hospitals’ policies prohibited the treatment that would terminate the pregnancy, as it could be considered a prohibited abortion under state law. The patient was ultimately required to travel to an abortion clinic in Illinois for treatment. The failure to provide necessary stabilizing treatment for the patient or arrange for an appropriate transfer could constitute a violation under EMTALA.

In the context of pregnancy care, any individual who presents to a dedicated emergency department (including labor and delivery units) in labor or requesting examination of a medical condition, must receive an appropriate medical screening examination (“MSE”). If the MSE reveals an EMC, the hospital is required to provide appropriate stabilizing treatment or properly transfer the patient to another hospital that is able to provide such treatment. EMCs involving pregnant patients may include ectopic pregnancies, complications of pregnancy loss, or emergent hypertensive disorders.

As described in an earlier post, EMTALA has garnered renewed attention in light of the Dobbs decision. Although certain states have responded to the ruling by implementing legal restrictions on the provision of and access to reproductive and abortion care, HHS reiterated its position that EMTALA’s obligations preempt any directly conflicting state law or mandate that might prohibit necessary stabilizing treatment or that apply to specific procedures, including abortion care.^[i] Two federal courts in Texas and Idaho are currently considering the effect of EMTALA on state laws that restrict abortion care, including HHS’ enforcement authority, which may ultimately lead to another U.S. Supreme Court case concerning abortion.^[ii]

FOOTNOTES

[i] See CMS, QSO-22-22-Hospitals: Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (Aug. 25, 2022); Letter from the Secretary of Health and Human Services (Jul. 11, 2022).

[ii] See Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022), and United States v. Idaho, No. 1:22-cv-00329-BLW (D. Idaho Aug. 24, 2022).