CMS Re-issues Memo to Providers about Emergency ‘Born-Alive’ Infants’ Rules

July 2019 ~

CMS has re-issued a memorandum on emergency stabilization and treatment of newborn infants that could cause fresh anxiety for hospitals and physicians over abortion and care for pregnant women and severely disabled infants.

In the MLN Matters memo, entitled, “Emergency Medical Treatment and Labor Act (EMTALA) and the Born-Alive Infant Protection Act,” reaffirms that “EMTALA protections start for an infant at the time of birth” and addresses the topic of parental consent and the need for clear communication between patients and practitioners.

Under the Born-Alive Infant Protection Act, an “infant … born alive at any stage of development” is considered a “person,” and, as such, has the same rights and patient protections as all other patients. 1 U.S.C. §8(a). The 2002 Act further defines “born alive” as an infant completely expulsed or extracted from his or her mother if that infant, among other things, “breathes or has a beating heart, pulsation of umbilical cord,” or voluntary muscle movement. 1 U.S.C. § 8(b).

As stated in the memo, “a newly born infant is presumed to be presenting with an emergency medical condition and requires a medical screening examination to determine necessary stabilizing treatment. EMTALA requires physicians and other qualified practitioners to provide care within nationally accepted standards of practice…If the hospital has the capabilities to stabilize the emergency medical condition, it is required to do so”.

CMS states that if the hospital is unable or ill-equipped to stabilize the patient, the facility will instead need to appropriate transfer of the infant to a hospital with specialized capabilities and capacity while providing care until the transfer is effectuated. Once the infant is admitted in “good faith” to stabilize the emergency medical condition, EMTALA no longer applies.

Under the “Communication Between Healthcare Professionals and Patients” section, the agency makes a point to encourage healthcare professionals to “engage in thoughtful discussions with pregnant women throughout the course of their pregnancy”.

The agency provides discussion points that providers should discuss with patients and the importance of maintaining regular and open communication, so that both patient and provider can anticipate and be prepared for potentially difficult decisions during an emergency situation.

CMS goes on to highlight the importance of informed consent, stating, “the CMS hospital Condition of Participation for Patient Rights states the hospital must protect and promote each patient’s rights…The patient also has the right to make informed decisions regarding her care, including being informed and being able to request or refuse treatment.”

Additionally, the memo states “interested parties” can report potential EMTALA violations to a State Survey Agency or the CMS Regional Office for evaluation and possible investigation, providing details on the review process.

For more information on the rules under the Born-Alive Infant Protection Act, refer to MLN Matters Number SE19012 or view the rule in its entirety, here.

Source(s):  MLN Matters Number SE19012; Born-Alive Infant Protection Act; Details for title: Interaction of the Emergency Medical Treatment and Labor Act (EMTALA) and the Born-Alive Infants Protection Act of 2002; Modern Healthcare; JD Supra; KHN Morning Briefing; Dentons;