CMS Updates EMTALA Signage for Hospitals

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By Jay DeVoy

On August 13, 2024, the Centers for Medicare and Medicaid Services (CMS) and its Center for Clinical Standards and Quality / Quality, Safety & Oversight Group issued its memorandum QSO-24-17-EMTALA (the “Memorandum”), providing updated model signage for hospital emergency departments to use to help comply with the Emergency Medical Treatment and Labor Act (EMTALA).

EMTALA is a federal law that requires hospitals with emergency departments to screen incoming patients for emergency medical conditions and, if necessary, stabilize patients regardless of their ability to pay for treatment.1 Generally, emergency departments must screen patients who present for emergency treatment to determine whether an emergency medical condition exists and, if so, must provide further examination and treatment until the patient’s emergency medical condition is stabilized or until the patient may be transferred to another facility (such as when a higher level of care is required).2 EMTALA has received much attention in recent years, especially as it relates to the use of abortion procedures as a method of stabilizing emergency care and in relation to the laws of certain states that enacted partial or total abortion bans in the wake of the US Supreme Court’s Dobbs decision. Read more

Supreme Court Restores the EMTALA Exception to Idaho’s Abortion Ban for Now

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By Kim Stanger and Cameron McCue

On June 27, 2024, the United States Supreme Court temporarily restored the Emergency Medical Treatment and Labor Act (EMTALA) exception to Idaho’s abortion ban. As a result, Idaho hospitals may perform abortions in EMTALA cases when necessary to preserve the health of the pregnant woman.

How We Got Here. In 2022, the United State Department of Justice (DOJ) brought a lawsuit challenging Idaho’s abortion statute in cases in which EMTALA applies. In August 2022, the federal District Court of Idaho entered a preliminary injunction that prohibited Idaho from enforcing its broad abortion ban in EMTALA cases pending resolution of the DOJ’s lawsuit. (See Order, available here: https://f.datasrvr.com/fr1/822/74681/Winmill-abortion-injunction-decision_(003).pdf). Idaho appealed to the 9th Circuit, which first lifted then restored the preliminary injunction. Idaho then sought immediate relief from the United States Supreme Court, which agreed to take the case and stayed the District Court’s injunction. However, last week, the Supreme Court changed its mind and, in a per curiam decision, concluded that it had improvidently agreed to take the case and sent the matter back to the lower courts for further proceedings. In so doing, the Supreme Court vacated its order staying the District Court injunction, thereby restoring the injunction, which effectively, if temporarily, allows Idaho hospitals to perform abortions in EMTALA cases. A copy of the Supreme Court’s decision is available here: https://www.supremecourt.gov/opinions/23pdf/23-726_6jgm.pdf. Read more

Avoiding EMTALA Penalties

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by Kim Stanger

The Emergency Medical Treatment and Active Labor Act (“EMTALA”) provides that if a patient comes to a hospital or hospital-owned urgent care center, the hospital and relevant on-call physicians must provide an appropriate screening exam and, if the patient has an emergency medical condition, provide stabilizing treatment or an appropriate transfer regardless of the patient’s ability to pay.  (42 U.S.C. § 1395dd; 42 C.F.R § 489.24). Participating hospitals with specialized capabilities cannot refuse to accept the transfer of an unstabilized person. (42 C.F.R § 489.24(f)). Physicians—including on-call physicians—who violate EMTALA may be subject to a civil penalty of $129,233.1 Hospitals that violate EMTALA are subject to civil penalties of $64,618 to $129,2332 per violation, lawsuits for damages, and/or exclusion from Medicare.  (42 U.S.C. § 1395dd(d); 42 C.F.R. § 1003.103(e); 45 C.F.R. § 102.3). Read more

No More EMTALA Exception to Idaho’s Total Abortion Ban

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By Kim Stanger

The Ninth Circuit Court of Appeals has ended the EMTALA exception to Idaho’s total abortion ban, I.C. 18-622.

In 2022, the US Department of Justice (DOJ) sued the state of Idaho, claiming that EMTALA preempted the total abortion ban in emergency cases. The federal district court of Idaho entered a preliminary injunction staying Idaho’s enforcement of its total abortion ban in EMTALA cases pending final resolution of the case.  (See our August 26, 2022, Health Law Update.) However, on September 28, 2023, the Ninth Circuit overruled the district court, holding that an intervening decision by the Idaho Supreme Court and Idaho’s amendment to the total abortion ban in 2023 mitigated, to a large extent, the concerns raised by the district court. Accordingly, the Ninth Circuit stayed the district court’s injunction, thereby ending the EMTALA exception to the total abortion ban pending a final decision in the district court case. A copy of the Ninth Circuit decision may be accessed here.  Read more

Idaho Abortion Laws: New Law and EMTALA Exception Now Effective

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By Kim Stanger

Idaho’s total abortion ban is now in effect. Effective August 25, 2022, anyone who performs an abortion of a clinically diagnosable pregnancy is guilty of a felony unless the abortion is necessary to save the life of the pregnant woman or in the case of rape or incest.1 On August 24, 2022, the United States District Court of Idaho confirmed another important exception (at least for the time being): the Court entered a preliminary injunction blocking enforcement of the total abortion ban in cases in which the Emergency Medical Transport and Active Labor Act (“EMTALA”) would require hospital-affiliated providers to perform an abortion to protect the health of the mother.2 Given these developments, we have updated our answers to common questions concerning Idaho’s abortion laws. Read more