Some have made the argument that the presence of EMTALA makes health care a right. Shadowfax wonders whether EMTALA is, in fact, unconstitutional:
One appropriately dramatic action would be for EMTALA to be overturned. Obviously, it is politically untouchable from a legislative point of view; it may, however, be vulnerable from a judicial approach.The Fifth Amendment to the US Constitution states, in part, “… nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment similarly reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The argument to be made here is that EMTALA requires private citizens, largely physicians, to provide the fruits of their labor without compensation or due process, and as such represents an unconstitutional “taking” of private property.
Update:
Flea comments.
Related posts:
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- Unintended consequences of EMTALA
- EMTALA a hidden tax?
- Is EMTALA a money-maker for ER’s?
- EMTALA and "social admits"
- Emergency call, post-EMTALA
- Air ambulance crashes and EMTALA
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My understanding of EMTALA is that the obligation is for the Hospital to assure that the emergent needs of patients are attended to regardless of ability to pay. How hospitals do that is an interesting question. Historically, Medical Staff Bylaws had language addressing the matter-an obligation to cover the ED was a condition of staff membership. The Bylaws were considered to be a contract between the hospital and the individual members of the medical staff. Everyone got along and did their part.
I believe the Feds would say that the payment issue is one for the hospitals to address and thus encourage the physicians to turn to the hospital for payment.
But… I like your position better
Sec (d)(1)(B) of the law explicitly imposes this obligation upon the physician as well as upon the hospital (though the law more generally addresses the hospitals primarily).
And enough docs have been investigated and fined under this law for us to know from bitter experience that it is a physician responsibility!
EMTALA is not a violation of the takings clause of the fifth amendment to the US Constitution because all the parties are voluntary participants in the Medicare program which imposes the EMTALA restrictions as a condition of participation. In the same way, they have long imposed onther requirements on participating hospitals that apply to non-Medicare patients. An example is the requirement that H & P be done within a certain time frame after admission. In theory, one can escape all of these federal requirments by not taking Medicare money.
It is in this manner that the federal government has destroyed what was left of state soveriegnity and intruded into all areas of American life, something which the constitution originally clearly prohibited.
Before the federal government can play this bribery-extorsion game, using our own money to reduce us to servitude, it must start legislating in an area. That is where the real constitutional violation occurs, when the feds first start any kind of legislation in area where it was not expressly given the power to do.
The 10th amendment of the bill of rights is plain:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.”
Being an amendment, this language constrains the reading of the body to narrow, not expansive language. It logically prohibits expansive interpretations of the body where narrow interpretations are viable.
Roosevelt, controlling court appointments for 12 years, shifted the entire judiciary to one which has routinely ingnored the 10th amendment. Now, all commerce is interstate commerce. Even things that aren’t commerce are interstate commerce, and the 10th amendment has been interpreted out of existence–essentially repealed without being repealed. We have built 80% of federal law over the last 60 years on an unconstitutional interpretation of the commmerce clause to allow legislation in virtually every area of life.
That is why Rehnquist was such a threat to some, he, in a small way, reintroduced the 10th amendment in the back door. Bork threatened to do so directly and so had to be stopped.
Because if you look at the body of the constitution, it says nothing about establishing a social insurance program. And a plain reading of the 10th tells us that clearly, social security along with it’s stepchild, Medicare, has been unconstitutional all along.
We allowed the federal government off the leash 60 years ago, now it is really too late to do much about it other than watch the surprise on peoples faces as they slowly over decades come to realize that they sold their freedom for illusory security.
anon 8:37 you are on the money. there are judicial/legal cracks in the medicare armor that need to be picked at by people smarter than myself via the courts and maybe the whole thing will unravel.
anon 8:37–so if I as a pediatrician do not take Medicare, can I still run afoul of EMTALA?
Your thoughts, please.
Maybe both the hospitals and the doctors should just be paid at the Medicare rate for otherwise uncompensated ER care under EMTALA. Then turn over the collections responsibility to the Internal Revenue Service. If the federal government is going to give mandates under threat of withdrawal of Medicare funds, then let them use the Medicare funds to provide compensation. And since there is an effective collections agency in existence in the IRS–more effective than private collectors–let them use that mechanism to recover funds.
It isn’t an absolutely perfect answer, but it sure beats the present system. And some patients who have money but who abuse the ED and don’t pay might think twice when their ER services come with a personal federal tax bill, one they can’t so easily skip away from.
Anon 12:14 — Only hospitals which participate in Medicare are obligated under EMTALA. Children’s hospitals which do not participate in Medicare would not be so obligated, but in reality, all do participate. The language of EMTALA is such that the obligation applies regardless of whether the patient is a beneficiary of Mediare or whether the doc is a participating provider.
The only way to really stay clear of EMTALA is not to have hospital privileges. Though as an ER doc, that’s not a great solution for me!
As an ER doc, you should think about opening your own urgent care center that takes only cash and major credit cards.
From Wikipedia:
Slavery is a social-economic system under which certain persons — known as slaves — are deprived of personal freedom and compelled to perform labour or services.
Hmmm…
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