Legal Summary
Post-Dobbs Fallout: Federal Guidance Abounds Beth Anne Jackson The release of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization dated June 23, 2002, was followed swiftly by actions by the U.S. Department of Health and Human Services (“HHS”) and an executive order. HHS had launched the HHS Reproductive Access Task Force (the “Task Force”) to plan for the previously leaked Dobbs decision. So, it is not surprising that HHS issued guidance regarding two federal statutes within weeks of Dobbs: EMTALA and HIPAA. The Emergency Medical Transfer and Active Labor Act (“EMTALA”) requires that hospitals with emergency rooms provide all patients with an appropriate medical screening examination, stabilizing treatment for any emergency medical conditions, and transfer to another facility, if necessary. Prompted by President Biden’s July 8, 2022, executive order titled Protecting Access to Reproductive Healthcare Services, which required Secretary of HHS Xavier Becerra to submit a report to the President “identifying steps to ensure that all patients – including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies – receive the full protections for emergency medical care afforded under the law,” ACMS Bulletin / August 2022
HHS released guidance on EMTALA. This came in the form of a letter from Secretary Becerra, as well as a CMS memorandum to State Survey Agency Directors, both of which were published on July 11, 2022 (the “EMTALA Guidance”). The EMTALA Guidance states that EMTALA and the duties imposed on hospitals and medical personnel thereunder, “preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.” In accordance with the executive order, the EMTALA Guidance specifically addresses emergency medical conditions including, but not limited to, ectopic pregnancy, complications of pregnancy loss, and preeclampsia with severe features. While, of course, the treatment necessary to stabilize these emergency medical conditions is determined by the treating physician or other qualified medical personnel, the EMTALA Guidance states that such treatment could include “medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, antihypertensive therapy, methotrexate therapy, etc.) irrespective of any state laws or mandates that apply to specific procedures.” (Emphasis added) The EMTALA Guidance proceeds to advise physicians that their obligation under EMTALA, specifically to provide
an “abortion” when necessary to stabilize the pregnant patient’s emergency, is both mandatory and protected under federal law when state law does not include an exception for the life and health of the pregnant patient. The EMTALA Guidance reminds physicians that not only are they potentially subject to civil monetary penalties that may be imposed against a physician for failing to provide necessary stabilizing treatment or appropriate transfer, but also suggests that they can use EMTALA as a defense against state enforcement action or to assert a retaliation claim if disciplined for refusing to transfer a patient who had not received the recommended stabilizing care. The EMTALA Guidance from CMS goes into further detail regarding hospitals’ obligations under EMTALA, particularly with respect to transfers of pregnant patients: transfers may only occur based on the patient’s request after informed consent or a physician’s determination that the benefits of transfer to the woman and/or the unborn child outweigh its risks. State law cannot be cited as the basis for the transfer. Although EMTALA does not apply once a patient is admitted, the EMTALA Guidance also cites the Continued on Page 32
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