June 28, 2022

Special Edition: EMTALA Requirements Remain Fully in Effect in the Post Roe v. Wade World

The whole country is still digesting the monumental Dobbs v. Jackson Women’s Health Organization Supreme Court decision that overturned Roe v. Wade last week and trying to grasp the plethora of legal and health-related implications that the decision will have. Countless individuals and organizations have put out statements, including ACEP, about the ramifications of this decision on the millions of individuals who will be affected. In ACEP’s statement, ACEP President, Gillian Schmitz, MD, FACEP, expressed deep concerns about the medical and legal implications of judicial overreach into the practice of medicine and stated that “politics should never compromise an emergency physician’s ability to have an honest discussion with a patient about their health or to evaluate all treatment options.”

I could never address all, or even a small fraction of, the many clinical, legal, and regulatory issues that could arise (or that have already arisen) from this decision. However, what I do want to do is focus in on one important issue that specifically affects you as emergency physicians and the patients you treat in hospital emergency departments (EDs).

Most of you, I am sure, are very familiar with the Emergency Medical Treatment and Labor Act (EMTALA)—an essential law that has been in place since 1987. The law includes three main obligations: the screening requirement, the stabilization requirement, and the transfer requirement. First, the law requires hospitals to provide a medical screening examination to every individual who comes to the ED seeking examination or treatment. The purpose of the medical screening exam is to determine whether a patient has an emergency medical condition. If an individual is determined to have an emergency medical condition, the individual must receive stabilizing treatment within the capability of the hospital. Hospitals cannot transfer patients to another hospital unless the individual is stabilized. If the individual is not stabilized, they may only be transferred if the individual requests the transfer or if the medical benefits of the transfer outweigh the risks (CMS states in the guidance that patients who request to be transferred can only be transferred after a physician certifies that the medical benefits of the transfer outweigh the risks.)

All individuals, regardless of their ability to pay, are entitled to this federal protection. EMTALA is truly a bedrock law and the foundation of the emergency care safety net in this country. It is a law that nearly everyone, at some point in their life, will rely on to receive the care that they need. However, the upheaval of Roe v. Wade has caused many in the emergency medicine community to wonder exactly how EMTALA will be impacted. Do the requirements under EMTALA apply in states that have already banned or wind up banning abortions? What restrictions or prohibitions related to the treatment of patients with obstetrical emergencies can be imposed in these states?

To help address these types of questions that we have been hearing from our members, I asked the Centers for Medicare & Medicaid Services (CMS) whether the agency planned on releasing any clarifying guidance. CMS has not yet indicated whether it does plan to put out guidance specifically in reference to the Supreme Court's decision, but the agency did point me to EMTALA guidance that it released in September 2021 as a place to start. The U.S. Department of Health and Human Services (HHS) also links to this guidance on a new website it launched that highlights patients’ reproductive rights.

The September 2021 guidance reaffirms 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. Thus, CMS is making it explicitly clear here that the federal EMTALA requirements will always apply regardless of what state laws are in place.

So, let’s take a deeper look at exactly how the three EMTALA obligations relate specifically to emergency obstetrical care:

First, it is important to reiterate that EMTALA applies to every individual, including those who are pregnant. With respect to the medical screening exam, CMS states in this guidance that “an appropriate medical screening exam can involve a wide spectrum of actions, ranging from a simple process involving only a brief history and physical examination to a complex process that also involves performing ancillary studies and procedures, such as (but not limited to) lumbar punctures, clinical laboratory tests, CT scans, and/or other diagnostic tests and procedures.” Patients must continue to be monitored until a physician or qualified health professional determines if the individual has an emergency medical condition, and if they do, until they are stabilized or appropriately transferred.

Second, emergency medical conditions under the EMTALA statute are defined as:

  • “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part; or
  • with respect to a pregnant woman who is having contractions— that there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.”

In the new guidance, CMS includes a non-comprehensive list of emergency medical conditions involving pregnant people: ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. CMS states that the “course of treatment necessary to resolve such emergency medical conditions is also under the purview of the physician or other qualified medical personnel. Stabilizing treatment could include medical and/or surgical interventions (e.g., dilation and curettage (D&C), removal of one or both fallopian tubes, anti-hypertensive therapy, etc.).” In all, none of these procedures that a physician or other qualified medical professional deems necessary to treat and stabilize a patient under the EMTALA mandate can be restricted by state laws.

Finally, with regards to the transfer requirement, the guidance states that hospitals can only transfer women in labor “if the benefits of the transfer to the woman and/or the unborn child outweigh its risks. For example, if the hospital does not have staff or resources to provide obstetrical services, the benefits of a transfer may outweigh the risks.” Hospitals cannot cite state laws or practices as the basis for transfer. In other words, regardless of where the hospital is located and what state laws are in effect, patients with emergency medical conditions must be treated and cannot be transferred—unless the limited transfer allowances under EMTALA apply.

The bottom line here is that the EMTALA requirements still reign supreme in a post Roe v. Wade world.

Again, there are countless other legal and policy questions that surround the landmark decision to overturn Roe v. Wade, but I hope that the CMS guidance provides at least some clarity on this particular question. ACEP will continue to work its way through other issues, such as medical liability, privacy and security of medical records and personal health data, and the ability to treat patients across state lines, and I will definitely let you know about any educational resources the College releases. In the meantime, please let me know if you have any questions about this CMS EMTALA guidance or if you believe there are any nuances or particular situations that this guidance may not cover. I recognize that the breadth of cases that you see in the ED is infinite, and we may need to advocate to CMS that the agency release even more guidance (whether on EMTALA or more broadly) to address other possible scenarios.

UPDATE: On July 11, CMS issued additional EMTALA guidance, following up on its previous guidance from September 2021. In this updated guidance, CMS reiterates that EMTALA pre-empts any directly contradicting state laws around the medical screening examination, stabilizing treatment, and transfer requirements. It 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.

However, again, even with this new guidance, there is still a lot of gray area, and we are seeking further clarification from CMS on the full extent to which EMTALA protects your duty to provide life-saving treatment to your patients in the face of a myriad of possible state laws and regulations.

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.

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