CMS Requirements related to EMTALA and the Born-Alive Infants Protection Act
The U.S. Centers for Medicare and Medicaid Services (CMS) has reissued a memorandum to remind hospitals of their obligation to comply with The Emergency Medical Treatment and Labor Act (EMTALA) as it relates to the Born-Alive Infants Protection Act. CMS has not issued any new policy, rather the agency is reinforcing existing regulations regarding the enforcement of EMTALA during investigations of hospitals where the Born-Alive Infants Protection Act could be potentially implicated.
- The Born-Alive Infants Protection Act of 2002 adds to the United States Code a definition of the term “individual” to include every infant who is born alive, at any stage of development; it also adds a definition of the term “born alive.”
- The Emergency Medical Treatment and Labor Act provides certain rights to “any individual” who comes to an emergency department and “any individual” who comes to a hospital. Specifically, hospitals must provide an appropriate medical screening examination to any individual who comes to an emergency department, and either stabilizing treatment or an appropriate transfer for an individual who comes to a hospital and who is determined to have an emergency medical condition.
- In 2003 EMTALA regulation clarifications, CMS noted that it is possible for the labor and delivery department of a hospital to meet the definition of dedicated emergency department.
Interaction of the Born-Alive Infants Protection Act and EMTALA:
- With the definition of the terms “person” and “individual” codified at 1 U.S.C. § 8, it is clear that there may be some circumstances where EMTALA protections can attach to an infant who is born alive.
- Example 1: An infant is born alive (as that term is defined in 1 U.S.C. § 8(b)) in a dedicated emergency department, and a request were made on that infant’s behalf for screening for a medical condition, (or if a prudent layperson would conclude, based on the infant’s appearance or behavior, that the infant needed examination or treatment for an emergency medical condition and that a request would have been made for screening) the hospital and physician could be liable for violating EMTALA for failure to provide such a screening examination. According to CMS, the born-alive infant is a “person” and an “individual” under 1 U.S.C. § 8(a), and the screening requirement of EMTALA applies to “any individual” who comes to the emergency department.
- Example 2: An infant is born alive elsewhere on the hospital’s campus (i.e., not in the hospital’s dedicated emergency department) and a prudent layperson observer concluded, based on the born-alive infant’s appearance or behavior, that the born-alive infant is suffering from an emergency medical condition. In such a circumstance, the hospital and its medical staff would be required to perform a medical screening examination on that born alive infant to determine is an emergency medical condition exists.
- If the hospital or its medical staff determines that the born-alive infant is suffering from an emergency medical condition, under EMTALA there is an obligation to admit the infant, or to comply with either the stabilization requirement or the transfer requirement.
- According to CMS, this is because the born-alive infant is a “person” and an “individual,” as described above, and the stabilization and transfer requirements of EMTALA apply to “any individual” who comes to the hospital.
- Example 3: If a hospital admits a born-alive infant, EMTALA would not apply to protect the infant in most circumstances because EMTALA does not address inpatients. However, CMS advises that Hospital Conditions of Participation (CoPs) would apply to the infant once he or she was admitted to the hospital as an inpatient. If a hospital were to violate those CoPs, it would put at risk its Medicare provider agreement.
As noted above, the information provided from CMS is a re-issued memorandum, first published in 2005. Therefore, none of these requirements are new. CMS decision to reissue the memorandum is based on reports the agency has had of occasions where, in hospitals, an infant may be born alive within the meaning of the definition added to the U.S. Code by the Born-Alive Infants Protection Act, but where hospitals have failed to comply with the requirements of EMTALA. It is not clear if CMS intends for an increase in enforcement around these regulations. CMS does note in their guidance that EMTALA is a complaint-driven statute. If a complaint that suggests that a born alive infant has been denied a screening examination, stabilizing treatment, or an appropriate transfer, that complaint should be treated by the regional office (RO) and state survey agency (SA) as potentially triggering an EMTALA investigation of the hospital. Note that it is not necessary to determine that the hospital acted with an improper motive in any failure to provide a screening examination, stabilizing treatment, or an appropriate transfer in order to conclude that an EMTALA violation has occurred. The Supreme Court of the United States has held that a finding of improper motive is not required to conclude that an EMTALA violation has occurred.
- Review EMTALA requirements and the Born-Alive Protection Act with appropriate staff.
- Ensure there is clear understanding of the definitions of “person” and “individual” as codified at 1 U.S.C. § 8, and that there may be some circumstances where EMTALA protections can attach to an infant who is born alive.
- Ensure written EMTALA policies specifically address responsibilities around infants born alive in emergency departments and labor and delivery units.
Included with today’s notice is an example policy related to EMTALA guidelines and how those guidelines interact with the Born-Alive Infants Protection Act.
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