CMS Releases New EMTALA Training Materials
The Centers for Medicare & Medicaid Services (CMS) released to the public on Dec. 5, 2022, new training materials (Training Materials) on the Emergency Medical Treatment and Labor Act (EMTALA) consisting of a new, high-level training video and infographic about EMTALA's requirements, generally, and its respective complaint and investigation procedures for possible violations. EMTALA,1 commonly referred to as the patient antidumping statute, was passed to guarantee that individuals with emergency medical conditions are not denied emergency medical services at a hospital emergency department, regardless of the individual's insurance coverage or inability to pay. Hospitals that fail to comply with EMTALA may be subject to termination of their Medicare provider enrollment as well as the imposition of civil monetary penalties.2
CMS notes in its Memorandum Summary (Summary), which is referenced in the Training Materials and originally was published on July 11, 2022, that the Summary's express purpose is to "restate existing guidance for hospital staff and physicians regarding their [EMTALA] obligations in light of new state laws prohibiting or restricting access to abortion."3 As an aside, it would be remiss to fail to note that the recent Dobbs U.S. Supreme Court decision4 was likely the reason behind these new EMTALA Training Materials. The Summary reminds hospitals and physicians who are subject to EMTALA of their obligation to generally comply with the law's screening requirement, stabilization requirement and transfer requirements.5
The Summary further states as part of CMS' interpretation of EMTALA that 1) abortion services fall within those kinds of stabilizing medical treatments that hospitals and physicians must provide to "patients who are pregnant or are experiencing pregnancy loss" who enter a hospital emergency department and where it's determined that the patient has an emergency medical condition, irrespective of conflicting state laws or mandates that may otherwise prohibit or prevent such services, and 2) such conflicting state laws governing abortions are preempted by EMTALA.6 The Summary broadly defines "emergency medical conditions involving pregnant patients" to include but not be limited to "ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features."7
In response to this CMS interpretation of EMTALA, a civil action was brought by the State of Texas in the U.S. District Court for the Northern District of Texas (the Court) alleging, among other things, that the secretary of the U.S. Department of Health and Human Services (HHS)8 and CMS exceeded their authority to "promulgate rules or regulations mandating that Medicare-participating hospitals and their physicians provide access to—and perform—abortions."9
On Aug. 23, 2022, the court issued a preliminary injunction against HHS' enforcement of the aforementioned interpretations made by CMS in the Summary, concluding that the plaintiffs are likely to succeed on a couple of its claims against the defendants.10 The defendants appealed the court's preliminary injunction order to the U.S. Court of Appeals for the Fifth Circuit and, at the same time, sought a preliminary injunction against the State of Idaho, which had passed an abortion ban that the government alleged to be in direct conflict with EMTALA.11
Although the Biden Administration does not have the authority to restore access to abortion, the administration has signaled that the office's efforts to push back on abortion restrictions are "not going away anytime soon."12 In July 2022, President Joe Biden signed an executive order that aims to protect the privacy of people who seek or obtain abortion services and who may seek information about reproductive care online.13 In addition, Biden signed a second executive order in August 2022 announcing further actions the office will take to secure access to reproductive rights, including actions "support[ing] patients traveling out of state for medical care, ensur[ing] health care providers comply with federal non-discrimination laws, and promot[ing] research and data collection on maternal heatlh outcomes."14
Holland & Knight will continue to follow these cases and will provide updates accordingly.
1 Section 1867(a)(1)(I)(i) of the Social Security Act (42 U.S.C. § 1395dd).
3 See U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services, Center for Clinical Standards and Quality, "Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (QSO-21-22-Hospitals)" (July 11, 2022, rev'd Aug. 25, 2022).
4 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) (ruling there is no constitutional right to abortion).
5 See FN 3; see also, § 1866(a)(1)(I)(i) of the Act.
8 Texas's Original Complaint, Count 1, Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex.), filed July 12, 2022.
9 Id. at Count 1, pg. 11.
10 Memorandum Opinion and Order, Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex.).
11 United States of America v. The State of Idaho, No. 1:22-cv-329 (S.D. Idaho).
12 See "Biden's efforts to protect abortion access hit roadblocks," Dec. 6, 2022.
13 See "Biden's efforts to protect abortion access hit roadblocks," Dec. 6, 2022; see also "Impassioned Biden signs order on abortion access," July 8, 2022.
14 See Fact Sheet: President Biden Issues Executive Order at the First Meeting of the Task Force on Reproductive Healthcare Access, The White House (2022).