CMS strengthens guidance on EMTALA and emergency abortions

CMS is again reminding hospitals of their obligations under federal law to help pregnant women in medical emergencies, but with the added emphasis that care must be offered “irrespective of any state laws or mandates that apply to specific procedures.”

The reminder comes more than two weeks after the Supreme Court overturned Roe v. Wade, the 1973 decision legalizing abortion nationwide. The memo also includes a note that hospitals and physicians may face civil financial penalty for denying patients emergency care.

The CMS memo updates and expands on guidance issued last September outlining hospital obligations under the federal Emergency Medical Treatment and Labor Act (EMTALA.)

Issued to CMS state survey agencies late Monday, July 11, the revised QSO-22-22-Hospitals adds a new statement, with CMS’ own bold emphasis:

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The memo has moved up a section to the summary to emphasize examples of what emergency medical conditions may include:

“The determination of an emergency medical condition 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. Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. “

The summary also adds a line, again with bold emphasis, to the summary stating, “The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures.”

The earlier memo in September was issued as various states began passing more restrictive laws on abortions. However, that earlier version never specifically mentioned abortion.

The new memo states: “The purpose of this memorandum is to restate existing guidance for hospital staff and physicians regarding their obligations under the Emergency Medical Treatment and Labor Act (EMTALA), in light of new state laws prohibiting or restricting access to abortion.”

The updated memo still notes that a hospital “cannot cite state law or practice as the basis for transfer,” then goes on to add the specific statement that “when a direct conflict occurs between EMTALA and a state law, EMTALA must be followed.”

The updated memo also expands a section on what is defined as stabilizing treatment, as well as the section on how CMS enforces EMTALA regulations.

And, as in the first memo, it also outlines four hospital Conditions of Participation (CoP) discussing care for inpatients, to include among other things that the governing body must ensure the medical staff as a group is providing quality care, and that the discharge planning process applies to all patients.

The updated memo also expands the enforcement section to state: “HHS, through its Office of the Inspector General (OIG), may impose a civil monetary penalty on a hospital ($119, 942 for hospitals with over 100 beds, $59,973 for hospitals under 100 beds/per violation) or physician ($119,942/violation) pursuant to 42 CFR §1003.500 for refusing to provide either any necessary stabilizing care for an individual presenting with an emergency medical condition that requires such stabilizing treatment, or an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition. Under this same authority, HHS OIG may also exclude physicians from participation in Medicare and State health care programs. CMS may also penalize a hospital by terminating its provider agreement.”

To read the full six-page memo, go online to https://www.cms.gov/files/document/qso-22-22-hospitals.pdf.