The 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.
The memo, first published in 2005 and re-issued last week, reminds providers that the Emergency Medical Treatment and Labor Act requires them to screen, stabilize and treat or transfer "every infant who is born alive, at any stage of development."
Some observers saw the CMS' decision to republish the memo as a political move to strengthen the Trump administration's anti-abortion bona fides, but said it wouldn't have much real-world impact.
"I'm sure all this is about the abortion issue," said Dr. Robert Bittermann, an emergency physician and attorney who consults with hospitals on EMTALA compliance. "It's a gentle reminder that if (a born-alive infant) comes to the ER, we have to resuscitate just like with anybody else. But everyone already knows about this."
Under the Born-Alive Infants Protection Act of 2002, the term "born alive" means "the complete expulsion or extraction from his or her mother … at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion."
The CMS said if an infant is born alive in a hospital's emergency department and a request were made to screen the infant for a medical condition, the hospital and physicians could be liable for violating EMTALA if they fail to provide screening, stabilizing treatment and any necessary transfer.
The agency said a hospital's labor and delivery department could meet the definition of an emergency department under its EMTALA regulations. And it noted that anyone can anonymously file a complaint triggering an investigation of whether a born-alive infant has been denied screening or stabilizing treatment.
Hospitals and physicians face stiff civil monetary penalties and potential exclusion from Medicare and Medicaid if they are found to have violated EMTALA.
While rare, situations involving born-alive infants that could raise EMTALA issues are mostly likely to occur following problematic late-term abortions, premature deliveries or induced labor in cases where the mother's life is in danger or the fetus has severe anomalies.
This could happen if an abortion clinic sent a mother and infant to the hospital following an abortion that went awry, Bittermann said. But he noted that EMTALA would only apply to the born-alive infant in the ED or labor and delivery department before being admitted to the hospital. The law generally does not apply to patients after they are admitted.
The Centers for Disease Control and Prevention reported that death certificates for infants from 2003 to 2014 showed 143 deaths involving induced pregnancy terminations, 97 of which involved a maternal complication or congenital abnormalities.
In Minnesota, which requires reporting on abortions that result in an infant born alive, there were three reported cases out of 10,177 abortions in 2017, with none surviving. In Florida, which also requires reporting, there were six reported born-alive cases out of 70,083 abortions.
The re-issuing of the CMS memo follows the failure of a Senate Republican bill earlier this year that would have imposed criminal penalties on physicians who did not provide the same care for an infant born alive after a failed abortion that they would provide for any infant of the same gestational age.
The issue became politically heated after Virginia Gov. Ralph Northam, a pediatric neurologist, described providers' approach to comfort care in cases involving nonviable pregnancies or severe fetal abnormalities.
The bill's sponsor, Sen. Ben Sasse (R-Neb.), said his legislation would ban "exactly the kind of infanticide Gov. Northam was endorsing." President Donald Trump accused Democrats who opposed the bill as taking a position "so extreme that they don't mind executing babies after birth."
The American College of Obstetricians and Gynecologists and other medical groups opposed Sasse's bill, arguing that it would apply to difficult situations where parents and clinicians choose to induce labor for medical reasons such as the mother's health or severe fetal defects.
Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, praised the CMS memo, calling it "a timely reminder of hospitals' duty not to deny lifesaving medical care to babies who survive abortions or babies spontaneously born prematurely."
But Dr. Leana Wen, CEO of the Planned Parenthood Federation of America, said "it is just a new effort to further stigmatize access to abortion care" and "a clear attempt to stoke fear amongst healthcare providers."
The American Hospital Association and the American College of Obstetricians and Gynecologists declined to comment on the CMS memo. Sasse's office did not respond to requests for comment.
Bittermann doubted that the memo would change hospital and physician practices in these difficult born-alive cases.
"Hospitals don't let kids die off to the side; it just doesn't happen," he said. "But there are circumstances that sometimes it's truly the right thing to not provide extensive medical care or interventions. It's what the healthcare team and the family think is in the best interest of all concerned. Those can be tough decisions for everybody."