Violating EMTALA, state abortion bans: What's at stake for physicians, hospitals

HHS aimed to add some clarity to the nation's shifting abortion landscape in July when it issued guidance to hospitals underscoring that abortion is covered under a 36-year-old federal law requiring Medicare hospitals to provide all patients appropriate emergency care. The law has since become the center of legal disputes over abortion in Idaho and Texas. 

The Emergency Medical Treatment and Labor Act, enacted in 1986, requires Medicare hospitals to provide all patients appropriate emergency care. This includes "an appropriate medical screening, examination, stabilizing treatment and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures," HHS clarified in guidance sent to hospitals July 11. HHS specified that "stabilizing treatment could include medical and/or surgical interventions, including abortion," and that EMTALA preempts state law where abortion is prohibited and does not make exceptions for the health or life of a pregnant person. 

On Aug. 23, however, a federal judge in Texas ruled abortions are not covered by EMTALA in the state's hospitals. The judge ruled HHS' guidance that EMTALA covers abortions is unlawful, and preliminarily halted its enforcement in Texas, leaving healthcare professionals to defer to Texas law over EMTALA for abortion in medical emergencies. 

This means Texas providers "can no longer cite EMTALA as a basis for bypassing restrictions on abortion in emergency scenarios," said Julian Polaris, an associate at Manatt Health law firm. "The court has now prohibited CMS from enforcing [their] guidance in a manner that would preempt Texas law. CMS has updated its EMTALA guidance to confirm the impacts of the court's order," he said. Since Texas providers are still subject to EMTALA's requirements of screening for emergency conditions and providing stabilizing treatment, the court's decision "puts the onus on Texas doctors and hospitals to identify all the circumstances under which an emergency abortion is or is not permissible under state law," Mr. Polaris said. 

"This is no easy feat," for physicians and hospitals in Texas since the state has several abortion restrictions, each with its own set of exceptions, Mr. Polaris said. 

"Even where emergency exceptions exist, they may be phrased in different ways under different laws. To minimize risk, compliance teams at Texas hospitals should try to anticipate, and consider the legal implications of, the many possible scenarios in which an abortion may be medically necessary to stabilize a patient’s emergency medical condition," he said. 

Meanwhile in Idaho, a federal judge ruled the opposite on Aug. 24, saying a state law set to take effect Aug. 25 violates EMTALA. The Idaho law was set to criminalize most abortions, except for limited scenarios, including those where abortion is necessary to prevent the death of a pregnant woman. The ruling says EMTALA's definition of emergency medical care covers treatment for conditions that place a patient's health in serious jeopardy or risk impairment to bodily functions or any organ, not just to avoid death. 

As hospitals and healthcare providers navigate the nation's patchwork of convoluted abortion laws, here's a look back at the consequences of violating EMTALA, as well as what may be at stake for violating state abortion laws: 

Violating EMTALA

The American College of Emergency Physicians outlines a number of penalties associated with violating EMTALA, which is enforced by both CMS and the HHS' Office of Inspector General. 

Hospitals and physicians may have their Medicare provider agreement terminated if found to have violated EMTALA. Individual physicians face fines of up to $50,000 per violation.

Hospitals face fines up to nearly $105,000 per violation, with a limit of $25,000 for facilities with fewer than 100 beds. Hospitals may also face personal injury lawsuits in civil court. A receiving facility where a patient may have been transferred from a hospital found to have violated EMTALA can also bring suit against the initial hospital to recover damages. 

Violating state abortion laws

Most abortions are now banned in at least 12 states, according to The New York Times. Many abortion fights are ongoing in courtrooms after the Supreme Court's June 24 decision to overturn Roe v. Wade. About half of states are eventually expected to enact abortion bans or place gestational limits on the procedure. 

Penalties physicians face if found to have performed an illegal abortion vary by state, ranging from fines and the loss of professional license to the ultimate consquence of life in prison, such as in Texas. Texas' trigger law, which makes limited exceptions to save a pregnant woman's life and no exceptions for rape or incest, went into effect Aug. 25. It makes performing an abortion a felony punishable by up to life in prison. Physicians who perform the procedure also risk losing their medical license and fines of no less than $100,000 per violation. 

Oklahoma is another state with a near-total abortion ban. There, performing the procedure is a felony punishable by up to 10 years in prison and fines of $100,000. 

If a provider is found to have violated Idaho's trigger law, they can be convicted of a felony with a sentence of two to five years in prison, as well as temporary or permanent license suspension.  A federal judge's ruling, however, upheld EMTALA over the state's law, saying medical professionals cannot be punished for abortions that are medically necessary to preserve patients' health and life.  

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