Compliance Updates for Emergency Physicians

VETERAN & BENEFICIARIES COVERAGE

In September, the U.S. Department of Veterans Affairs released an interim final rule (IFR) that is now in effect that expands abortion access for veterans and beneficiaries, irrespective of state law, if determined needed by a health care professional because the life or the health of the pregnant veteran or beneficiary would be endangered if the pregnancy were carried to term, or the pregnancy is the result of an act of rape or incest. ACEP submitted a comment letter in response to the regulation noting that the addition of coverage for when the health of the pregnant patient is in danger, not just the life, brings the coverage more in line with EMTALA care mandated under federal law and is therefore commended.

EMTALA

The Emergency Medical Treatment and Labor Act (EMTALA) requirements are still fully in effect following the Supreme Court's decision overturning Roe v. Wade. 

On July 11, CMS issued updated EMTALA guidance that built on previous guidance released in September 2021 reaffirming physicians’ legal obligations under EMTALA, specifically when treating patients who are pregnant or are experiencing pregnancy loss. It states that a physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the ED and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment. 

CMS specifically clarifies that if a physician believes that an abortion needs to be performed to stabilize a patient with an emergency medical condition, the physician MUST provide the treatment regardless of any state law that may prohibit abortions. Further, with respect to what constitutes an “emergency medical condition” (EMC), the guidance states that the determination of an EMC “is the responsibility of the examining physician or other qualified medical personnel. An emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment." Finally, the guidance states that EMTALA pre-empts “any state actions against a physician who provides an abortion in order to stabilize an emergency medical condition in a pregnant individual presenting to the hospital.”

In addition to the guidance, HHS Secretary Xavier Becerra, in a letter to providers, further made clear that this federal law preempts state law restricting access to abortion in emergency situations.

Read a special edition of the Regs & Eggs blog to learn more about EMTALA  and the latest guidance.

HIPAA

On June 29, the U.S. Department of Health and Human Services (HHS) released guidance on the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in the wake of Roe v. Wade being overturned. The guidance reinforces existing policies and highlights aspects of the HIPAA Privacy Law. It does not include any changes or modifications to the Law. Specifically, the guidance discusses three types of disclosures of personal health information: 1) Disclosures Required by Law; 2) Disclosures for Law Enforcement Purposes; and 3) Disclosures to Avert a Serious Threat to Health or Safety. For each type of disclosure, the guidance states that the HIPAA Privacy Rule permits, but does not require, covered HIPAA entities (i.e., clinicians) to disclose personal health information under certain conditions.

PRESCRIPTIONS

The U.S. Department of Health and Human Services (HHS) has released guidance to retail pharmacies regarding their nondiscrimination obligations under federal civil rights laws. The guidance notes that under federal law, pharmacies may not discriminate against pharmacy customers with regard to supplying medications, making determinations regarding the suitability of a prescribed medication for a patient, or advising patients about medications and how to take them. Under federal civil rights law, this includes discrimination based on a pharmacy customer's pregnancy status or potential to be pregnant. The guidance provides specific examples, including:

• "An individual experiences severe and chronic stomach ulcers, such that their condition meets the definition of a disability under civil rights laws. Their gastroenterologist prescribes misoprostol to decrease risk of serious complications associated with ulcers. If the pharmacy refuses to fill the individual’s prescription or does not stock misoprostol because of its alternate uses, it may be discriminating on the basis of disability."
• "An individual presents to a hospital emergency department with chills, fever, and vaginal bleeding. The treating physician diagnoses a miscarriage complicated by a uterine infection (known medically as a septic abortion) and orders an antibiotic. If the hospital pharmacy refuses to provide the antibiotic required for treatment because of concern that subsequent care may include uterine evacuation (via medical or surgical abortion), the pharmacy may be discriminating on the basis of sex."
• "An individual with rheumatoid arthritis, such that their condition meets the definition of a disability under civil rights laws, is prescribed methotrexate by their physician’s assistant as a standard immunosuppressive treatment. If the pharmacy refuses to fill the individual’s prescription or does not stock methotrexate because of its alternate uses, it may be discriminating on the basis of disability."
• "An individual experiences an early pregnancy loss (first-trimester miscarriage) and their health care provider prescribes pretreatment with mifepristone followed by treatment with misoprostol to assist with the passing of the miscarriage. If a pharmacy refuses to fill the individual’s prescription—including medications needed to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy—the pharmacy may be discriminating on the basis of sex."