The Centers for Medicare and Medicaid (CMS) launched an investigation of 2 Medicare-covered hospitals — one in Missouri and one in Kansas — that failed to offer necessary stabilizing abortion care to a patient experiencing an emergency medical condition stemming from a miscarriage, which is a violation of the Emergency Medical Treatment and Labor Act (EMTALA).
“CMS is committed to investigating allegations of noncompliance with EMTALA. The agency acted promptly to investigate and identify the violations at Freeman Health System in Joplin, Missouri, and the University of Kansas hospitals in Kansas City, Kansas,” according to a CMS spokesperson. Abortion is largely illegal in Missouri except in cases of medical emergency. In Kansas, abortion is legal up to 22 weeks of pregnancy.
The patient experienced preterm premature rupture of membranes (PPROM) at 18 weeks and was advised that her pregnancy was no longer viable, according to a statement from the US Department of Health and Human Services (HHS). Doctors at both hospitals she presented at said that hospital policies prohibited treatment that could be considered an abortion, yet advised her that her condition could rapidly deteriorate and lead to infection, hemorrhage, and potentially death.
“This was a violation of the EMTALA protections that were designed to protect patients like her,” HHS Secretary Xavier Becerra wrote in a letter to hospital and provider associations. “We will use the full extent of our legal authority, consistent with orders from the courts, to enforce protections for individuals who seek emergency care — including when that care is an abortion.”
“During her visits to 2 different hospitals, the patient was not offered the care that her doctors determined was necessary to stabilize those emergency medical conditions — not because of the clinical judgment of her providers, but because the hospital policies would not allow an abortion to be performed,” Becerra said.
American Hospital Association Responds
“Hospitals and health systems across the United States take seriously their obligations under EMTALA. While we cannot comment on the specifics of any case, the American Hospital Association [AHA] routinely provides advice to our members about EMTALA requirements,” said AHA General Counsel and Secretary Melinda Hatton.
Last July, HHS issued an updated guidance explaining that the EMTALA law applies to patients who are pregnant or experiencing pregnancy loss. AHA shared this advice with their membership and, in August, the association filed an amicus brief “in support of the Department of Justice’s case seeking to enforce EMTALA in Idaho,” where the abortion law made it a felony to terminate a pregnancy with few exceptions, Hatton said. “As we explained in that brief, it is critical that providers have clarity across state and federal law about what care they may — and, in the context of EMTALA, must — provide, and the AHA will continue to work to obtain that necessary clarity.”
Battle Over EMTALA in Texas
A case in Texas is under appeal after the US District Court for the Northern District of Texas issued an injunction prohibiting certain applications of the EMTALA guidance issued on July 11, 2022. Based on that initial court case, a revision to the July HSS guidance now states that:
- HHS may not enforce the Guidance and Letter’s interpretation that Texas abortion laws are preempted by EMTALA
- HHS may not enforce the Guidance and Letter’s interpretation of EMTALA — both as to when an abortion is required and EMTALA’s effect on state laws governing abortion — within the State of Texas or against the members of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA)
“The Texas case puts both patients and doctors in a terrible, untenable situation,” said Ann W. Latner, JD, a former criminal defense attorney. “It essentially prevents clinicians from treating patients who require abortion services as part of their emergency care. It defeats the whole purpose of EMTALA, which was to ensure that patients get treatment for emergency medical conditions. It leaves women experiencing pregnancy loss in a no-win situation when they can’t access appropriate medical care, as in the situation that CMS is investigating.”
“Moreover, this will certainly lead to future lawsuits when a patient is harmed as a result of not being properly treated,” Latner said. “Clinicians are being put in a position where they have to weigh their Hippocratic Oath against conflicting state and Federal laws — an incredibly challenging situation, and one in which the patient can sometimes be the loser. Clinicians, in Texas and beyond, should strive to treat patients in the most appropriate manner, within the law, keeping in mind that EMTALA requires medical stabilization.”
Similar Reports About Confusion Regarding Abortion Care and EMTALA
Becerra noted that news reports describe similar experiences among other patients with pregnancy-related emergencies and said these cases may be related to uncertainty among facility administrators on whether providers can use reasonable medical judgment to care for these emergencies in states where abortion care is not legal.
“While many state laws have recently changed, it’s important to know that the federal EMTALA requirements have not changed, and continue to require that health care professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition,” Becerra wrote.
CMS will make sure that the hospitals come into compliance with federal law so that EMTALA’s guarantees are protected and take additional action as appropriate, according to HHS.
HHS Secretary Xavier Becerra Statement on EMTALA Enforcement. News release. US Department of Health and Human Services. May 1, 2023. Accessed May 2, 2023. https://www.hhs.gov/about/news/2023/05/01/hhs-secretary-xavier-becerra-statement-on-emtala-enforcement.html
CMS announces investigation of hospitals for EMTALA violations. News release. American Hospital Association. May 1, 2023. Accessed May 2, 2023. https://www.aha.org/news/headline/2023-05-01-cms-announces-investigation-hospitals-emtala-violations