Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services

Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services

March 21, 2023
Overview of the Emergency Medical Treatment and Active
Labor Act (EMTALA) and Emergency Abortion Services
The Emergency Medical Treatment and Active Labor Act
transfer . . . from a facility.” Accordingly, for EMTALA
(EMTALA, largely codified in Section 1867 of the Social
purposes, stabilization generally depends on whether a
Security Act, 42 U.S.C. § 1395dd) is a federal law that
patient’s emergency condition would decline because of a
generally compels Medicare-participating hospitals to
facility transfer; a patient may be stabilized even if the
provide emergency care to any individual, irrespective of an
patient’s medical condition remains unresolved or the
individual’s ability to pay. Enacted in 1986 amid reports of
patient requires further medical treatment. EMTALA
hospital emergency rooms refusing to treat poor or
guidance offers an illustrative example:
uninsured patients, the Act requires hospitals, as a condition
of federal Medicare funding, to provide services to any
[A]n individual presents to a hospital complaining
individual presenting at an emergency department or face
of chest tightness, wheezing, and shortness of
potential enforcement action.
breath and has a medical history of asthma. The
physician
completes
a
medical
screening
Following the Supreme Court’s decision in Dobbs v.
examination and diagnoses the individual as having
Jackson Women’s Health Organization, questions have
an asthma attack that is an emergency medical
arisen about EMTALA and its relationship to state law,
condition. Stabilizing treatment is provided
particularly in the context of emergency abortion services.
(medication and oxygen) to alleviate the acute
This In Focus outlines EMTALA’s central requirements
respiratory symptoms. In this scenario, the
and enforcement mechanisms; highlights the Act’s
[emergency medical condition] was resolved and
preemptive scope and recent issues related to emergency
the hospital’s EMTALA obligation is therefore
abortion; and concludes with considerations for the 118th
ended, but the underlying medical condition of
Congress.
asthma still exists.
Core Requirements: Screening, Stabilization, and
Third, EMTALA restricts hospitals from transferring
Transfer
unstable patients unless the transfer is “appropriate” and
EMTALA has three main components. First, hospitals with
meets certain conditions. Among these conditions, a
an emergency department (including critical access
transfer may occur if the hospital informs the patient of its
hospitals and, effective January 1, 2023, rural emergency
EMTALA obligations and the risks of transfer, and the
hospitals) must screen patients. Specifically, if an
patient makes a written request for the transfer to another
individual comes to the hospital’s emergency department
medical facility.
with a request for examination or treatment, hospitals must
provide an “appropriate” medical screening examination by
Notably, courts have generally concluded that EMTALA’s
qualified medical personnel within the capability of its
core requirements are distinct from state medical
emergency department. The goal of this screening is to
malpractice requirements. While the Act requires hospitals
determine if an “emergency medical condition” exists. The
to furnish medical services to patients, the statute does not
Act does not expressly address the scope of the required
impose professional standards of care or liability on
examination or what constitutes “appropriate” screening.
hospitals or physicians that provide poor-quality care to
However, agency guidelines and several lower court
patients. In other words, hospitals and physicians that fail to
decisions indicate that hospitals must follow the same
employ the proper procedures to screen or stabilize patients
screening procedures for all individuals presenting at the
may violate EMTALA, while health care providers that, for
emergency department with the same signs and symptoms,
instance, negligently misdiagnose a patient may violate
regardless of an individual’s payment status or other
state medical malpractice laws but not violate EMTALA.
factors.
“Emergency Medical Condition”
Second, if a hospital determines that an individual has an
As noted, EMTALA obligations to treat a patient depend
emergency medical condition, the hospital must either
upon whether a patient has an “emergency medical
provide further medical examination and treatment to
condition.” Under the Act, this condition is one in which an
stabilize the patient using available staff or facilities, or
individual exhibits “acute symptoms . . . such that the
transfer the patient to a different medical facility with more
absence of immediate medical attention could reasonably
specialized capabilities. As defined in federal regulations,
be expected to jeopardize an individual’s health or result in
required stabilization involves treatment for an emergency
serious impairment to bodily functions or dysfunction to
medical condition “as may be necessary to assure, within
bodily organs or parts.” Pursuant to the Act and
reasonable medical probability, that no material
accompanying regulations, elements of an emergency
deterioration . . . is likely to result from or occur during the
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Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services
medical condition may include severe pain, psychiatric
presenting at an emergency department is experiencing a
disturbances, or substance abuse symptoms. With respect to
condition that is likely or certain to become emergent, and
pregnant women, an emergency medical condition includes
that abortion is the stabilizing treatment necessary to
one that endangers the health of the woman or her unborn
resolve that condition, the physician must provide that
child.
treatment. Examples of relevant conditions may include
“ectopic pregnancy, complications of pregnancy loss, or
Enforcement
emergency hypertensive disorders, such as preeclampsia
Federal enforcement of EMTALA is a complaint-driven
with severe features.”
process that typically begins after the Centers for Medicare
and Medicaid Services (CMS) receives information about a
In July 2022, the State of Texas, in Texas v. Becerra, sued
potential violation. Following receipt of a complaint, CMS
to block enforcement of the guidance while HHS, in United
may authorize an investigation to determine whether a
States v. Idaho, sued the State of Idaho to block
violation occurred. When violations are identified,
enforcement of its abortion ban to the extent it conflicts
EMTALA guidance specifies that hospitals may adopt
with EMTALA. The two district courts reached conflicting
corrective action plans to address the deficiencies.
conclusions: while the Texas court enjoined the guidance in
the state, the Idaho court barred enforcement of Idaho’s
In certain instances in which a hospital or physician
abortion restriction to the extent it prohibits providers from
negligently violates EMTALA requirements, the
providing emergency abortion services in circumstances
Department of Health and Human Services (HHS) Office of
required by EMTALA. The legal challenges are ongoing.
Inspector General may impose civil monetary penalties of
(For a detailed discussion of the litigation, see CRS Legal
up to $119,942 (as adjusted for inflation) for each violation.
Sidebars CRS Legal Sidebar LSB10850, EMTALA
(Smaller penalty amounts apply to hospitals with fewer than
Emergency Abortion Care Litigation: Overview and Initial
100 beds.) Hospitals and physicians that commit repeated
Observations (Part I of II) and CRS Legal Sidebar
or “gross and flagrant” violations of the Act may be
LSB10851, EMTALA Emergency Abortion Care Litigation:
excluded from participation in Medicare and other federally
Overview and Initial Observations (Part II of II), both by
funded health care programs.
Wen W. Shen)
Aggrieved individuals and medical facilities may also sue a
Considerations for the 118th Congress
hospital for damages and other relief to address EMTALA
As described by one of the Act’s sponsors, EMTALA tasks
violations. However, the Act does not explicitly provide a
Medicare-participating hospitals with providing “an
similar cause of action against physicians who commit such
adequate first response to a medical crisis” for all patients.
violations. Some courts have also recognized that injured
The Act creates a statutory duty to provide medical care in
third parties (e.g., a deceased patient’s heirs) may bring
instances where such a duty may not otherwise exist.
EMTALA suits against offending hospitals.
EMTALA, however, is not an express directive to provide
uncompensated care; hospitals may still bill for the services
Preemption and Emergency Abortion Services
provided.
EMTALA expressly indicates that the Act’s requirements
do not preempt state or local requirements except for those
Health care access, particularly for indigent patients, is an
that directly conflict with the federal law. This provision
issue of perennial interest to Members of Congress.
has received considerable attention following the Supreme
EMTALA may be examined should Congress consider
Court’s decision in Dobbs. In Dobbs, the Supreme Court
legislation affecting emergency medical care. Congress
concluded that the U.S. Constitution does not confer a right
may also chose to address how the Act intersects with state
to an abortion. After the decision, several states passed
law in the context of emergency abortion services. Such
measures to curtail access to abortion, including bans on
legislation could clarify EMTALA’s preemptive reach and
abortion in particular circumstances.
the precise circumstances under which hospitals must
provide these services. Legislation on this issue could affect
Questions have arisen about the interplay between a health
the outcome of the Texas and Idaho litigation.
care provider’s duty to provide emergency abortion services
under EMTALA and state restrictions that limit a health
Jennifer A. Staman, Legislative Attorney
care provider’s ability to provide abortion care. After
Dobbs, HHS issued guidance indicating that under
IF12355
EMTALA, if a physician believes that a pregnant patient

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Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services

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