A Troubling Disregard for the Law

A Monitor Monday listener recently sent word of what can only be described as a deeply troubling denial of a gender reassignment surgery.

The listener quotes the denial as: “Deny per CMD review: documentation submitted is sufficient to support the medical appropriateness of gender reassignment surgery by statutory standards. However, at this time (the contractor) is not able to commit federal funding or taxpayer money to support this service.”  

Rephrasing it, the contractor is saying that while Congress has specifically mandated that this service is covered, we’re not going to pay it anyway. That’s completely bonkers.

I’ve never seen anything like it, and as I’ve shared it with colleagues, the reaction is uniformly one of shock and concern. When people in power ignore the law, bad things tend to happen. 

My feelings toward the contractor are a bit conflicted. On the one hand, I’m very disappointed in them for denying a service that they acknowledge is statutorily covered. On the other hand, the fact that the denial overtly recognizes that under the law, the service was covered is extraordinarily helpful for an appeal.

The contractor was making their position readily apparent. But the fact that the federal government is requiring contractors to disregard the law is extraordinarily problematic. I have always had problems with the “I was just following orders” defense when you are doing something you know to be wrong, and that is exactly what the contractor is doing here, so I can’t give them too much credit.

We all need the spine to call out illegal actions, and I would prefer that the contractor refused the illegal order, but at least they create an easy appeal for the facility, and that is better than nothing.    

Next, I’d like to address a question asked by a listener last week. She wanted to know how to interpret the Centers for Medicare & Medicaid Services’ (CMS’s) withdrawal of the Emergency Medical Treatment and Active Labor Act (EMTALA) guidance related to patients who are pregnant or experiencing pregnancy loss. The answer to this question has both legal and practical elements.

From a legal perspective, absolutely nothing changed. As we’ve repeatedly discussed, guidance is not the law, and a change in guidance does not change any statute or regulation. EMTALA has not changed, and my professional opinion is that withholding treatment from a pregnant woman in a way that causes her risk of death or bodily harm violates EMTALA.

That’s pretty clear whenever guidance is issued. From a practical perspective, the change does have impact. It is probably true that this makes it more difficult to use EMTALA as a tool to defend against a criminal charge for violating some state-based abortion restriction. Some people struggle to recognize that guidance isn’t binding, and it is always easier if you can point to a document from the federal government justifying an action.

So practically, the withdrawal of the guidance matters. But I want to reemphasize that legally, nothing changed. EMTALA says what EMTALA says, and the issuance or withdrawal of various guidance from an administration doesn’t change it.

So, if the question is “can CMS or contractors just change laws passed by Congress on their own, choosing to disregard them and issuing new guidance and policies?” the answer comes from Raydo and its lead singer, Ray Parker Jr. “You can change your telephone number, and you can change your address too.” But you most certainly “can’t change that” when “that” is a federal law.