NCPA - National Center for Policy Analysis

Is Requiring Hospitals to Provide Emergency Room Care Unconstitutional?

October 15, 2014

Since 1986, American hospitals have been subject to the Emergency Medical Treatment and Active Labor Act (EMTALA), requiring hospitals which contract with Medicare and which have emergency rooms (ERs) to treat and stabilize all patients who present themselves to the ER, regardless of that person's ability to pay.

Significantly, hospitals are not compensated for providing these emergency services, which impose huge costs (half of all emergency care is uncompensated, at $6 billion annually). Haavi Morreim, law and bioethics professor at the University of Tennessee College of Medicine, contends that EMTALA is unconstitutional, a violation of the Fifth Amendment's Takings Clause.

The Fifth Amendment prohibits the taking of property without just compensation. Morreim explains how this applies to EMTALA:

  • While one generally thinks of a taking under the Fifth Amendment as involving real estate, personal property is also subject to the law. In the case of EMTALA, hospitals (from whom property is taken) are required to provide emergency room patients with drugs, bandages, medical devices, beds and employee time.
  • Takings typically involve a destruction of property value or a physical invasion of a person's property. Both are present in this instances, says Morreim, as the value of goods and time spent on ER patients is spent entirely, and the emergency patient takes up physical space within the hospital.

Morreim uses an analogy to illustrate why the requirement is unlawful. EMTALA is identical, she writes, to the government requiring hotels to open their rooms to the homeless and provide them with toiletries, towels and a place to sleep on cold nights.

Many who support EMTALA, however, contend that the emergency treatment provision is merely a "condition of participation" (CoP) in the Medicare program -- hospitals are free to choose not to participate in Medicare. However, Morreim says that logic is flawed. While conditions of participation are not necessarily problematic, Morreim says that EMTALA cannot be considered a lawful CoP. Why? She explains:

  • CoPs typically involve requirements that hospitals meet certain health and safety standards, to ensure that Medicare patients are receiving a certain standard of care. EMTALA, on the other hand, is not about a standard of care.
  • Nor is the law limited to Medicare patients -- it requires the treatment of all who show up to the hospital. EMTALA is not related to providing care for the elderly, which is the aim of Medicare.
  • EMTALA requires hospitals to comply with a condition that, on its own, could never lawfully be required. The government could not require hospitals to hand out free care without payment.
  • It is coercive, as Medicare constitutes 30 percent of a hospitals' budgets. Morreim writes that lawmakers "leveraged hospitals' financial dependence on Medicare to achieve an objective completely unrelated to the program's purpose.

If EMTALA is in fact a taking under the Fifth Amendment, hospitals are due "just compensation" under the Constitution, says Morreim.

Source: Haavi Morreim, "'Taking' Medical Care from Hospitals," Cato Institute, Fall 2014. 


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