HHS: Emergency medical care includes abortion access

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The federal government under the Biden Administration has made a push to ensure abortion access as part of emergency medical care, with Health and Human Services Secretary Xavier Becerra telling providers this week that pregnant women and others experiencing pregnancy loss have access to "full rights and protections" for emergency care under federal law.

The guidance comes in light of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which effectively overturned the Roe v. Wade precedent that had protected abortion access for 49 years.

In a 5-4 vote in June, the Justices ruled to overturn Roe v. Wade, the 1973 law, and Planned Parenthood v. Casey, which re-affirmed abortion rights in 1992.

In a letter to providers this week, Becerra evoked the Emergency Medical Treatment and Labor Act, which since 1986 has required that Medicare hospitals provide patients with appropriate emergency care regardless of whatever state laws or mandates are in place. If a state prohibits abortion by law and doesn't make exceptions for the health or life of a pregnant person, EMTALA supersedes state law.

According to Becerra, "The determination of an emergency medical condition is the responsibility of the examining physician or other qualified medical personnel. 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 pre-eclampsia with severe features."

Necessary treatment to stabilize these emergency conditions is also under the physician's purview, said Becerra, and could include medical or surgical interventions that include abortion, anti-hypertensive therapy, removal or one or both fallopian tubes, or methotrexate therapy, regardless of any state laws or mandates that apply to the procedures.

"Thus, if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, 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," wrote Becerra. "And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person – or draws the exception more narrowly than EMTALA's emergency medical condition definition – that state law is pre-empted."

There are penalties for not following EMTALA, he said. A complaint against a hospital can trigger an investigation, and if the investigation indicates a hospital violated one or more conditions of EMTALA, that hospital may be subject to termination of its Medicare provider agreement. It may also incur civil monetary penalties, which can also be levied against individual physicians. Physicians may also be excluded from the Medicare and state healthcare programs.

WHAT'S THE IMPACT?

Following the Supreme Court decision, HHS announced an action plan to protect access to reproductive care, including abortion.

Five priorities were outlined, including:

• Increasing access to abortion medication.
• Protecting patients and providers from discrimination, and ensuring privacy for patients and providers.
• Protecting emergency abortion care.
• Ensuring providers have family planning training and resources.
• Strengthening family planning care, including emergency contraception.

Since the plan was announced, HHS has taken a number of actions. The agency convened a meeting with health insurers and sent them a letter calling on the industry to commit to meeting their obligations to provide coverage for contraceptive services at no cost as required by the Affordable Care Act. It also issued guidance to patients and providers that addresses the extent to which federal law and regulations protect individuals' private medical information when it comes to seeking abortion and other forms of reproductive healthcare, as well as when it comes to using health information apps on smartphones.

In addition, HHS has announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers, and has met with Michigan Governor Gretchen Whitmer, Oregon Governor Kate Brown and Maine Governor Janet Mills and state attorneys general to discuss state-specific concerns.

THE LARGER TREND

The Supreme Court ruling striking down Roe v. Wade has implications for health insurance coverage, according to healthinsurance.org.

The ruling that unwinds close to 50 years of a woman's right to an abortion now leaves that decision to individual states. An estimated half of them already have abortion restrictions in place or are expected to implement restrictions.

"With Roe v. Wade overturned, abortion access will vary more sharply from one state to another," said Louise Norris, an analyst with healthinsurance.org said in a statement. "State-level variations were already the norm for health insurance coverage of abortion, particularly for health plans purchased by individuals and small groups. States that will now ban abortions were generally the same states that already prohibited abortion coverage on health plans purchased in the exchange or even on all private state-regulated health plans."

For the time being, she said, most health plans in all states will continue to provide coverage for FDA-approved female contraception, including sterilization, long-acting contraception (IUDs and implants) and emergency contraception.
 

Twitter: @JELagasse
Email the writer: jeff.lagasse@himssmedia.com