CMS issues clarifying EMTALA memorandum in the wake of Dobbs

Following the US Supreme Court decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade in late June, the Biden Administration signaled that it would use its executive branch powers to address access to reproductive healthcare services.

In accordance with an Executive Order issued Friday, July 8, 2022 from President Biden focusing on protecting access to reproductive healthcare services, the Centers for Medicare and Medicaid Services (CMS) issued additional guidance on Monday, July 11, clarifying federal Emergency Medical Treatment and Labor Act (EMTALA) obligations and enforcement for Medicare-certified hospitals in the US.

The CMS memorandum, Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss, was issued and discussed during a national "shareholder" webinar in which CMS answered questions in response to a variety of issues that providers have experienced or that they may experience subject to EMTALA enforcement by CMS.

Most notably, CMS, both in the guidance issued and in the webinar, stressed that EMTALA obligations under federal law preempt state law, including those laws that would not otherwise ensure protection of the life of the pregnant patient, should a life-threatening emergency present itself. Moreover, the guidance stressed that it is a physician's "professional and legal duty" to provide stabilizing medical treatment in the emergency room, and "[i]f a physician believes that a pregnant patient…is experiencing an emergency medical condition [EMC] as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment."

CMS continually stressed that the determination of an emergency medical condition [EMC] is the responsibility of the examining physician or other qualified medical personnel, in the exercise of his or her independent clinical judgment. The guidance further identifies that emergency medical conditions "may include, but are not limited to: ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features."

CMS guidance also made clear that a hospital cannot cite state law or practice as the basis for transferring a patient; fear of state law implications cannot justify failing to comply with obligations or justify failing to transfer a patient. The guidance provides: " . . . nor can the physician be shielded from liability for erroneously complying with state laws that prohibit services such as abortion or transfer of a patient for an abortion when the original hospital does not have the capacity to provide such services. When a direct conflict occurs between EMTALA and a state law, EMTALA must be followed."

CMS discussed complaints and enforcement activities arising from this guidance in the webinar, sending a clear signal to providers in those states where strict abortion laws exist, that failure to abide by EMTALA obligations could result in EMTALA citations, complaints, and potential condition of participation risks.

Within days of the CMS guidance being issued, the State of Texas filed suit against the US Department of Health and Human Services (HHS), among others, arguing that the guidance's preemption of state laws exceeds HHS's statutory authority, violates the rights of physicians and providers not to perform abortions and impedes the State's right to regulate activity within its borders. The Texas suit, filed in the US District Court for the Northern District of Texas, seeks a declaratory judgment stating that the CMS guidance is unlawful, as well as injunctive relief prohibiting HHS from enforcing the guidance.