January 26, 2024
On Monday, January 22, 2024, the fifty-first (51st) anniversary of Roe v. Wade, the Biden Administration announced new protections for reproductive care, including expanding access to contraceptive coverage and doubling down on emergency care pursuant to the Emergency Medical Treatment and Active Labor Act (“EMTALA”), which requires hospitals with an emergency department to provide an examination to any individual who comes to the emergency department and prohibits emergency departments from refusing to examine or treat individuals with an emergency medical condition.
CONTRACEPTIVE COVERAGE
In conjunction with the Administration’s announcement, Health and Human Services (“HHS”), together with the U.S. Departments of Labor and the Treasury (the “Departments”), issued a new Frequently Asked Questions (FAQs) detailing how plans and issuers can comply with the contraceptive coverage requirements of the Affordable Care Act (“ACA”). Specifically, the FAQs lay out a new pathway for plans and issuers to ensure compliance with the requirement to cover the full-range of FDA-approved contraceptive drugs and drug-led devices without cost sharing. The FAQs come in response to “reports that plans and issuers continue to impose widespread barriers to contraceptive coverage, causing individuals to experience difficulty accessing the coverage without cost that they are entitled to” despite repeated clarification from the Departments.
HHS also updated the Medicare Part D formulary clinical review process for plan year 2024 to include additional types of birth control, such as intramuscular long-acting contraceptives, and to include intrauterine devices (“IUDs”) for subsequent plan years. These updates are intended to ensure that individuals with Medicare coverage can access more covered types of birth control.
HHS Secretary Xavier Becerra also sent a letter to Medicare Plans, Private Insurance Plans, and State Medicaid and CHIP Programs, reaffirming that access to reproductive healthcare is a priority of HHS and reminding the parties “of the critical need to comply with existing standards of access to comprehensive, quality contraception—including through Medicaid, Medicare, and under the [ACA].”
EMTALA
Background
Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in the summer of 2022, which overturned Roe v. Wade, numerous states have enacted laws restricting abortion access. Many believe the state restrictions pose conflicts with EMTALA, which requires hospitals to provide stabilizing treatment to any individual presenting with an emergency medical condition.
Following the Court’s decision in Dobbs, HHS issued guidance clarifying that EMTALA obligations to treat patients experiencing medical emergencies preempt such state abortion restrictions. In 2022, this guidance was challenged in federal district court in Texas by the state of Texas, the Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical and Dental Associations (the “Plaintiffs”). The District Court granted the Plaintiffs a preliminary injunction holding that the guidance exceeding the text of EMTALA and that notice-and-comment was required for such guidance. On January 2, 2024, a panel of the Fifth Circuit Court of Appeals affirmed the District Court’s opinion and upheld the preliminary injunction, in part reasoning that EMTALA’s stabilization obligations also extend to an unborn child. HHS may not currently enforce the July 11, 2022, guidance (or corresponding letter sent the same day by HHS Secretary Becerra) within the state of Texas.
Meanwhile, Idaho’s abortion ban, which was triggered by the Supreme Court’s overturning of Roe and initially criminalized all abortions leaving providers with only affirmative defenses, was challenged by the United States on the ground that it conflicted with EMTALA. In August 2022, a district court in Idaho granted a preliminary injunction, preventing Idaho’s abortion ban from going into effect. However, on January 5, 2024, the Supreme Court stayed this injunction, allowing the law to go into effect while the case waits to be heard by the Supreme Court.
Announced Actions
In the meantime, HHS has announced that, together with the Centers for Medicare & Medicaid Services (“CMS”), it will provide resources to educate the public about their rights to emergency medical care and to support the efforts of hospitals to meet their obligations under EMTALA. Specifically, HHS intends to:
- Publish new informational resources on CMS’s website to help individuals understand their rights under EMTALA and the process for submitting a complaint if they are denied emergency medical care;
- Partner with hospital and provider associations to disseminate training materials on providers’ obligations under EMTALA;
- Convene hospital and provider associations to discuss best practices and challenges in ensuring compliance with EMTALA; and
CONCLUSION
While the Supreme Court is expected to issue an opinion regarding abortion care under EMTALA later this year, we recommend plans, insurers, and healthcare providers familiarize themselves with HHS’s new guidance regarding contraceptive coverage and EMTALA to ensure compliance with current law and guidance.
Our team is continuing to monitor post-Dobbs developments on all fronts, including any changes in emergency care requirements, and will provide updates as they emerge. For questions regarding any post-Dobbs issues, please contact any of the following Hancock, Daniel & Johnson attorneys: Ashley Calkins, Annie Howard, Sandi Douglas, or Mary Malone.
Click here for a full PDF version of the advisory.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.
