Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (UPDATED JULY 2022)

PURSUANT TO THE PRELIMINARY INJUNCTION IN TEXAS V. BECERRA, NO. 5:22-CV-185-H (N.D. TEX.), HHS MAY NOT ENFORCE THE FOLLOWING INTERPRETATIONS CONTAINED IN THE JULY 11, 2022, CMS GUIDANCE (AND THE CORRESPONDING LETTER SENT THE SAME DAY BY HHS SECRETARY BECERRA): (1) HHS MAY NOT ENFORCE THE GUIDANCE AND LETTER’S INTERPRETATION THAT TEXAS ABORTION LAWS ARE PREEMPTED BY EMTALA; AND (2) 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 Emergency Medical Treatment and Labor Act (EMTALA) provides rights to any individual who comes to a hospital emergency department and requests examination or treatment. In particular, if such a request is made, hospitals must provide an appropriate medical screening examination to determine whether an emergency medical condition exists or whether the person is in labor. If an emergency medical condition is found to exist, the hospital must provide available stabilizing treatment or an appropriate transfer to another hospital that has the capabilities to provide stabilizing treatment. The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. • The determination of an emergency medical condition is the responsibility of the examining physician or other qualified medical personnel. An emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment. Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. • Hospitals should ensure all staff who may come into contact with a patient seeking examination or treatment of a medical condition are aware of the hospital’s obligation under EMTALA. • A physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents under EMTALA to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment. • If a physician believes that a pregnant patient presenting at an emergency department 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. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.