Challenge the constitutionality of EMTALA

Here is a letter to the editor in a recent Philadelphia Inquirer:

… In 1986, Congress passed and President Ronald Reagan signed the Emergency Medical Treatment and Active Labor law, which requires hospitals to admit all who arrive at the emergency room and treat them without regard for their ability to pay.

In essence, we had federally mandated national health care – signed into law under a Republican administration. What we did not have is a rational way to pay for the mandated health care.

Those who seek to repeal the federally mandated insurance requirements in the health-care law should also seek to repeal EMTAL[A], a deeply immoral proposition if I ever heard one….

Hear, hear! Riddle me this, Batpersons: how come no one ever challenged the constitutionality of EMTALA? Is it some kind of truism in American politics that Ronald Reagan could do no wrong? I suppose it would be pretty difficult politically to try arguing a position where you’re basically advocating throwing laboring women out onto the streets if they can’t pay. No one, not even a politician, wants to appear that heartless. So they went and essentially enslaved hospital emergency departments, forcing them to provide services without any guarantee of payment. Immoral indeed!

That’s just the tip of the iceberg. Most Americans seem to feel that the Hippocratic oath — few, if any, of whom have actually read it — somehow compels the rest of us doctors to do the same thing. You wouldn’t believe how indignant some people get when they discover that I expect to be paid cash money for my time and expertise.

But medical care is important, especially in emergency situations. We as a society refuse to condone the heartlessness of letting the seriously ill and injured suffer without care just because they happen to be without financial resources.

Oh yeah?

Hunger is rampant in this country as well. It should be morally unacceptable for anyone in this great nation of plenty to starve to death. So why hasn’t anyone proposed the Emergency Feeding and Maintenance of Adequate Libations (EFMAL, pronounced “Eff ‘em all”) Act, which compels restaurants to serve anyone who walks in the door regardless of their ability to pay? What’s that, you say? Restaurants are in business to make money? It’s unconstitutional to make them give stuff away?

Makes about as much sense as forcing emergency departments to provide uncompensated (that means “free”) care. It’s no way to run a business, unless by “running a business” you really mean running it into the ground. Could that really happen? Look around: plenty of recent ER closings in the news.

So to all those politicians looking to repeal the new health insurance reform legislation, how about a little moral consistency. Dump EMTALA while you’re at it. Then again … what am I saying? “Politicians,” “morality,” and “consistency” all in the same sentence? Forgive me. I think we may have more luck with my restaurant proposal. After all, this Congress sure seems poised truly to “EFMAL.”

Lucy Hornstein is a family physician who blogs at Musings of a Dinosaur, and is the author of Declarations of a Dinosaur: 10 Laws I’ve Learned as a Family Doctor.

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  • http://joshservices.com/wordpress/wordpress Josh

    EMTALA has never been a major culprit in the closing of an Emergency Department. http://t.co/I4hoi7W

    • Vox Rusticus

      Yes it has. The enormous unfunded burden on D.C. General Hospital in Washington, fed by the oversubscribed emergency room and underfunded Medicaid agency closed not just the emergency room, but the whole hospital.

  • Anonymous

    Your comparrison fails … resteraunt is an optional thing. Medical crisis is not.

    .
    There ARE options for food ..foodstamps, soup kitches, community pantries …

    • stitch

      There are options for medical care, too, including community health centers and other sliding scale clinics.

      Soup kitchens, btw, are not obligated to provide food; they do it out of charity. Hospital ERs are required by this law to provide assessment at the very least. And there is a liability issue inherent in the medical care not there in the soup kitchen analogy.

  • Vox Rusticus

    EMTALA is a bad law, but it is probably not unconstitutional. Anyone who doesn’t doesn’t want to be held to its dictates can quit taking ED call. Plenty of hospitals already exempt senior physicians from call; others quit staff and do only outpatient work or work at hospitals with no emergency rooms (which exist in many places in the world–no one compels a hospital to have an emergency room.) So it isn’t slavery, and it isn’t technically a taking, either. On is allowed to bill patients for work done, but when they are uninsured and indigent, or simply clever deadbeats, that usually goes nowhere.

    So we are left with an unfunded mandate that essentially tells the indigent and feckless to help themselves to the resources of hospitals and the labors of their staff, on penalty of hospitals and staff being denied Medicare payment if they do not obey the dictates. A reasonable law would have required the hospital to act as they must now, but would have compensated the hospital and its doctors at the prevailing Medicare rate (100%, not 80%) and then turned the collections over to the IRS, with its myriad and effective ways of collecting what the government is owed. Such a provision would probably curb abuses once deadbeats knew there would be a reckoning with the federal government for not buying insurance, and a little clever legislation could apply penalties to the abusive.

  • Brian

    This post is three weeks too early!

    • anonymous

      What is happenning in three weeks?

      • Brian

        April 1st.

  • ninguem

    If a government administration needs to throw doctors under the bus to achieve some other goal, it will be done in a heartbeat. BOTH SIDES do it.

    It impresses me not one bit to know EMTALA was passed under the Reagan Administration. If were done under the Clinton administration, probably the only difference would be a requirement for the ER docs to personally drive the patient to the ER or something equally onerous.

    When it comes to this stuff, the difference between the left and the right is a difference of degree, not of kind.

  • keepingthyme

    I think the point is, where do we draw the line? Where does government intervention end? We are slowly becoming a country of whiney children expecitng our mother country (ie: government) to take care of all our needs and wants.

    I work in the health care enviornment and I see it everyday. Even people who have the means to pay for their health care services refuse to pay because there is this belief that the services of all doctors, nurses and hospitals are a God-given-right. It doesn’t matter if the health care establishments are just hoping to cover the costs of operating, there is still this perception that medical professionals are morally corrupt if they demand payment for services rendered.

  • BladeDoc

    EMTALA is constitutional because it is tied to Medicare. Don’t want to be subject to it? Stop taking Medicare. No problem. The individual mandate could have been made constitutional quite easily (assuming arguendo that it isn’t) as well just by raising FICA and giving everyone a tax rebate if you proved you had insurance instead of vice versa. The Feds just weren’t brave enough to call it a tax.

  • PAULMD

    @BladeDoc,

    Hold on there Kemo. Going non-par with medicare won’t be enough in many circumstances.

    As a surgical subspecialist, medicare, caid, and commercial carriers require that I have full admitting priviliges at a hospital. EMTALA mandates hospital ER to provide coverage for services. Hospital bylaws require call coverage in return for admitting priviliges.

    EMTALA is now a part of my life. I really don’t think the argument of moving or trying to change hospital policy holds water as this is a common policy especially where there is little or no competition by other hospitals.

    Even if I am not a Medicare provider I am subjected to its requirements….with teeth.

    • Family Doctor

      May I ask your yearly income?

    • bladedoc

      The hospital has to be non-par, sorry I didn’t make that clear.

  • paul

    you don’t have to convince me that emtala is full of problems.

    still, i don’t think it’s constructive to just demand its repeal without proposing a better alternative.

    i think i could make peace with emtala if i got tax breaks and legal immunity for all the emtala freebie care i give out.

    • Matt

      Why should you be immune from liability just because sometimes people don’t pay you for your services? You choose to work somewhere that subjects itself to EMTALA. As an earlier commenter said, you’re not REQUIRED to subject yourself to it. That’s a choice you make.

      So why should the poor not expect you to meet the standard of care when you are performing professional services?

      • Anonymous

        I have a friend from high school who is an ER doctor .. .he works for a hospital. They pay him the same amount no matter how many patients he has, no matter how many or how few patients he sees …and he’s paid regardless of if the bill is paid or not. He’s on salary. It is NOT him giving the free care, it is the hospital ..who passes the costs on to paying patients or writes it off in taxes.

        • Vox Rusticus

          That might work OK for your friend, who is employed by the hospital in whose ED he works, but what do you think happens when your friend has to call in a specialist to treat one of his patients in that ED? Suppose his patient needs an orthopedic surgeon, or a cardiologist or a psychiatrist; those doctors aren’t getting paid if the patient is indigent. They are usually self-employed in private practice, with substantial practice business bills to pay.

          Also, where do you get the idea that you can write off the value of unpaid work on your taxes? You can’t, period.

          The federal government is extorting-by-proxy with EMTALA. They are threatening directly, and indirectly by way of hospital staff bylaws, to prosecute physicians who don’t comply with their taking. What they threaten isn’t the payment for the work done for patients seen under emergency circumstances–for that they offer nothing– but payment for all work done for all patients who have Medicare benefits, payment for work that has nothing to do with emergencies. They hold hostage the participation with Medicare (of questionable value anymore) in exchange for unlimited exposure to risk and loss. There is no other industry anywhere that is made to accept those kinds of terms. And remember, the Medicare payments at risk are for other work for other patients.

        • Vox Rusticus

          >>”It is NOT him giving the free care, it is the hospital . . . .”

          In the end, it is him giving the free care. The hospital can’t print money, it has to pay its contractors and staff from its revenues. Activities that are chronic under-producers and money-losers eventually have their productivity reflected in what is paid to their employees. The hospital can’t hold back on its bond note payments or electric bill just so it can pay ED doctors and other employees in the emergency department who see patients that don’t pay. Hospitals close down eventually under those conditions.

          Many Americans have an infantile notion about money and health care, especially emergency care. I see this thinking all the time, and it doesn’t just stop at the ED. It is one thing to require that payment requirements not stop treatment in a true emergency, but many people really think that that means never having to be responsible for payment. We even have idiotic statements by the likes of George W. Bush to prove it.

      • paul

        how about the cases where standard of care was met but the doc gets sued anyway? can i be immune for those?

        • Matt

          How do you know that before the case is filed?

      • http://www.epmonthly.com/whitecoat WhiteCoat

        Same old strawman argument, Matt.
        A Hobson’s Choice really isn’t a choice at all, but you already know that.
        Even if emergency physicians chose not to participate with Medicare, then there wouldn’t be any hospitals that could hire them because the hospitals all participate with Medicare.
        Then emergency physicians could make another Hobson’s Choice to avoid working in hospitals. Like Edwin says below – do you really want that to happen?

        Your argument about discriminating against the poor is another strawman. Who says that the poor are the only ones that use emergency departments? If you look at recent CMS and HHS studies, insured patients use the ED more than noninsured ones do. The issue isn’t one of discriminating against the poor. The issue is one of whether society believes it is appropriate to force medical providers to perform services on anyone who wants them and then to hold those medical providers liable for millions of dollars if they don’t perform those services flawlessly.
        And if you use the same old argument that medical providers aren’t expected to perform flawlessly … give me a couple of examples of mistakes resulting in an injury to a patient that it is OK for medical providers to make. Just a couple.
        I know you won’t respond in a substantive manner, so in advance I’ll add …
        [crickets]
        [crickets]

  • http://www.edwinleap.com/blog Edwin Leap

    Many physicians in emergency departments are not paid by the hospital, but bill for their own services. Likewise, most physicians on call receive no hospital compensation for coverage unless it was specially negotiated, as in the case of surgeons and orthopedists at our facility. Indeed, as many have wisely pointed out, we don’t have to work in emergency departments and consultants can simply stop taking call! Problem? Well, first of all most emergency physicians work at hospitals that take Medicare, so they don’t have another option; only so many urgent cares out there. Second, do you want us to stop working in the emergency department? What will happen to all that compassion for the poor when we simply won’t do it? Will you make us? Will you do it? Third, across America physicians are already exercising their option not to take call. Consequently, many facilities have fewer and fewer specialists like surgeons, neurologists, psychiatrists and others. Emergency physicians can’t consult the wise specialists (who were fed up with EMTALA) to see the seriously ill and injured who need the level of expertise no longer available. They simply aren’t there, and most of us can’t blame them. So be as glib as you want, everyone, if we all stop being available to avoid EMTALA (since it’s not slavery as you point out), then no one will be there when the crisis occurs. It might be wise to find ways to make EMTALA more fair, just in case everyone gets smart and decides to avoid the government’s predations. By the way, should we be shielded from liability for providing free care? Absolutely! It makes no sense to expect a physician to give away services but still be sued for errors that occur in providing those free services! I can’t fathom the mentality that would think it’s fair! If liability is allowed, the government should cover it as if it occurred in a federal facility.

  • http://www.thaddeuspope.com Thaddeus Pope

    The constitutionality of EMTALA has been challenged, especially in its early years. In one famous case (Burditt v. DHHS, 934 F.2d 1362 (5th Cir. 1991)), the U.S. Court of Appeals for the 5th Circuit rejected the challenge as follows:

    Two levels of voluntariness undermine Burditt’s
    taking assertion. Only hospitals that voluntarily
    participate in the federal government’s Medicare
    program must comply with EMTALA. See 42
    U.S.C. § 1395cc(a)(1)(I) (West Supp.1991)
    (hospitals eligible to receive Medicare payments if
    they agree, inter alia, to comply with EMTALA).
    Hospitals must consider the cost of complying with
    EMTALA’s requirements in deciding whether to
    continue to participate in the Medicare program.

    Second, Burditt is free to negotiate with DeTar or
    another hospital regarding his responsibility to facilitate
    a hospital’s compliance with EMTALA.
    Thus, physicians only voluntarily accept responsibilities
    under EMTALA if they consider it in their
    best interest to do so. Accordingly, Burditt’s claim
    under the Takings Clause is without merit.

  • Molly Ciliberti, RN

    Do any of you remember the bad old days of “dumping” when the patient was told to go elsewhere or the ambulance routed to another facility sometimes 50 or more miles away and people died because no one would care for them because they had no insurance and couldn’t pay? I do. Universal healthcare is the answer. My husband is a physician and he has always been in favor of universal healthcare as have I. Please don’t do the old socialism, communism song and dance, I had heard it all be for and it is BS.

    • Jack

      I think many physicians don’t have a problem with Universal Health Care. It’s the public that has a problem. Why? Who’s going to pay for it and medical rationing.

      Additional taxes will need to generated to pay for it. At the end of the day American public don’t want more taxes. They won’t even shell out a few buck to fix the education system now. American public wants everything in quantity, immediately and free.

      Rationing will happen or else this country will go bankrupt on medical cost. People of this country will not stand for 6 month outpatient CT scan/elective surgeries…and we aren’t even talking about aggressive chemo/surgery etc.

  • gzuckier

    Indeed, if health care reform is unconstitutional, then so is EMTALA. The “health care reform” bill is basically just how to pay for EMTALA . It strains credulity that “conservatives” would stand up for an entitlement but balk at arranging for its funding in an efficient and fair manner.

  • Dorothy Green

    Additional taxes will need to generated to pay for it. At the end of the day American public don’t want more taxes. They won’t even shell out a few buck to fix the education system now. American public wants everything in quantity, immediately and free.

    Get the taxes through consumption not income from the “spoiled American public who wants everyting in quantity, immediate and free” – VAT is proposed in Bowles and Simpson – use it for education. Make the big banks pay for this crisis – also proposed. Outlaw or regulate derivative trading, Wall street and big bankers is even greedier than the American public.

    RISK -reduction in sickness kitty tax on all processed sugar, fats and salt that are not essential to the body.

    Physicians for National Heathcare Program has a lot of information about universal healthcare, impact of EMTALA on escalating cost, etc. Not much to join. Sign a petition to help Vermont led the way. They have over 200 doctors wanting to move there if they have a universal system.

    Also, sign petitions to STOP subsidies for agribusiness, where the processed food chain, which is 90% of the American diet, starts. Write your legislators.

    Read about other countries and their struggles with healthcare costs, diet, smoking, adm costs, healthcare reform efforts. None are as horrific as the US.

  • Dr. Liberty

    Bravo!

    The problem with american politics is liberals are willing to be consistent in supporting single payer, but free market advocates aren’t willing to be equally consistent and support a 100% free market in medical care. Challenging EMTALA is a step in the right direction.

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