United States: New EMTALA Guidance Reaffirms 2002 Born-Alive Infant Protection Act

On June 27, 2019, the Centers for Medicare & Medicaid Services (CMS) released a Medicare Learning Network publication (MLN Matters Number SE19012) entitled, "Emergency Medical Treatment and Labor Act (EMTALA) and the Born-Alive Infant Protection Act." (Note: MLN Matters publications are provided for informational benefit only, and do not impose obligations or grant rights to providers or individuals.)

Passed in 2002, the Born-Alive Infant Protection Act reaffirmed, under federal law, that an "infant ... born alive at any stage of development" is a "person," and, as such, has the same rights and patient protections as all other patients. 1 U.S.C. §8(a). The 2002 Act further defines "born alive" as an infant completely expulsed or extracted from his or her mother if that infant, among other things, "breathes or has a beating heart, pulsation of umbilical cord," or voluntary muscle movement. 1 U.S.C. § 8(b).

Seventeen years later, the referenced MLN Matters reaffirms that "EMTALA protections start for an infant at the time of birth" for patients presenting for care to hospitals' "dedicated emergency departments," which generally includes L&D departments, hospital parking lots, and other locations on the hospital's campus (i.e., within 250-yards of a main hospital building). The CMS publication further states:

A newly born infant is presumed to be presenting with an emergency medical condition and requires a medical screening examination to determine necessary stabilizing treatment. EMTALA requires physicians and other qualified practitioners to provide care within nationally accepted standards of practice...If the hospital has the capabilities to stabilize the emergency medical condition, it is required to do so.

Thus, hospitals must provide appropriate medical screening examinations and, if an emergency medical condition is identified, stabilizing treatment within their capabilities and capacities (or an appropriate transfer) to those "born alive," to the same extent as any other patient; and when in doubt, should provide lifesaving treatment unless and until there is a clear withdrawal of consent for treatment from anyone responsible for the newborn patient.

The MLN Matters addresses the topic of parental consent to some extent, highlighting the need for clear communication between patients and practitioners:

Discussing potential serious occurrences during the prenatal period provides an opportunity for the pregnant woman and her healthcare provider to anticipate and be prepared to respond to potentially difficult decisions during an emergency situation. Clarifying patient preferences prior to an emergency situation may assist in the decision making process for both the patient and her healthcare provider.

That said, practitioners should communicate with the patient (or representative, as required) at the time of any emergency, giving an opportunity to reaffirm or change a prior discussed or documented decision.

The publication also highlights the fact that informed consent is important, not only ethically, but explicitly as a condition for a hospital to be enrolled in Medicare, stating, "The CMS hospital Condition of Participation for Patient Rights states the hospital must protect and promote each patient's rights...The patient also has the right to make informed decisions regarding her care, including being informed and being able to request or refuse treatment."

Finally, SE19012 walks readers through how patients, family or other hospitals can report potential EMTALA violations to a state survey agency or CMS regional office. The CMS publication goes on to explain (at a high level) the administrative review and enforcement process, including reviews by quality improvement organizations (QIOs). Although there is not much new in the publication, CMS does provide a concise, informative overview of this process.

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