On the heels of President Biden's July 8th, 2022 Executive Order to Protect Access to Reproductive Health Care, the Department of Health and Human Services ("HHS") issued clarifying guidance on July 11, 2022 with respect to the obligations of hospitals under the Emergency Medical Treatment and Labor Act ("EMTALA") for patients seeking reproductive healthcare services. More specifically, upon patients presenting to an emergency department, EMTALA requires hospitals to: (i) have a qualified person provide a medical screening examination ("MSE") to determine the existence of an emergency medical condition; and (ii) stabilize any emergency medical condition found, or appropriately transfer the patient to the extent that the emergency department does not have the requisite expertise to handle the medical emergency or the patient requests transfer. In its guidance, and a companion letter to providers from Secretary Becerra, HHS makes clear that hospitals' obligations under EMTALA to perform a MSE, stabilize the patient, and transfer if necessary are all irrespective of any state laws that apply to specific procedures, and further that a physician's professional and legal duty to provide stabilizing medical treatment to a patient found to have an emergency medical condition preempts any directly conflicting state law prohibiting such treatment. HHS' guidance also clarifies that EMTALA's definition of emergency medical condition preempts any state laws that directly conflicts with or is more restrictive than EMTALA's.

Under EMTALA, an emergency medical condition involving pregnant patients includes, but is not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. Stabilizing treatment could include medical and/or surgical interventions such as abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy, etc., regardless of state law prohibitions on specific procedures, as the examining physician (or other qualified medical person) is responsible for determining the course of treatment necessary to stabilize emergency medical conditions. Thus, according to HHS' guidance, if a physician believes that a pregnant patient presenting at an emergency department (including certain labor and delivery departments) 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—and if a state law prohibits abortion and does not include an exception for the life and health of the pregnant person, or if the state law contains more narrow exceptions than EMTALA's emergency medical condition definition, that state law is preempted.

Fear of violating state law cannot be the basis for a physician deciding to transfer a patient, or preventing a physician from completing a transfer, nor can a physician escape EMTALA liability by mistakenly following a state law that prohibits abortion or transfer of a patient for an abortion if the original hospital does not have the capacity to provide such services.

EMTALA requires that a person in labor may be transferred only after the individual requests a transfer and provides informed consent therefor, or if a physician signs a certification at the time of transfer that "the benefits of the transfer to the woman [in labor] and/or the unborn child outweigh its risks." Such transfer could happen, for example, if the hospital does not have human or other resources to provide necessary obstetrical services, then the benefits of a transfer may outweigh the risks. A hospital's EMTALA obligation only ends when a physician or qualified medical person has made a decision: (a) that no emergency medical condition exists; (b) that an emergency medical condition exists and the individual is appropriately transferred to another facility; or (c) that an emergency medical condition exists and the individual is stabilized or admitted to the hospital for further stabilizing treatment. A state law limiting reproductive healthcare services or fear of violating such law may not be a hospital's or physician's reason for transfer.

Ultimately, HHS' guidance exerts the preeminence of federal law and Medicare's conditions of participation, to protect both patients by ensuring that all individuals, including pregnant patients and those experiencing pregnancy loss, have access to the emergency medical care and attendant rights under EMTALA, as well as providers, by highlighting that EMTALA's preemption of state law could be deployed by, and potentially protect either.

Patients can file a complaint with a state survey agency, prompting an HHS investigation of a hospital or medical personnel, with consequences including termination of a hospital's Medicare provider agreement and/or the imposition of significant civil monetary penalties against the hospital and individual physicians for EMTALA violations.

On the other hand, HHS notes that individual physicians may also use EMTALA's preemption in a variety of ways, potentially including as a defense to a state enforcement action for performing a procedure otherwise prohibited by state law, in a federal suit seeking to enjoin threatened enforcement of such a state law, or even within the physician's own organization under the retaliation provision, such as if the physician has been disciplined, for example, for refusing to transfer an individual who had not received the stabilizing care the physician determined was appropriate. Whether and the extent to which hospitals and physicians will rely on this sub-regulatory guidance and Secretary Becerra's letter, and whether and the extent to which the use of EMTALA as a defense or justification for violating state law will be approved and adopted by the courts remains to be seen. Hospitals and providers with questions or seeking counsel on implementing HHS' recent guidance can contact any member of Shipman & Goodwin's Health Law practice group for assistance.

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