Report argues hospitals may be unconstitutionally forced to accept public for no pay

1. A recent study/law review suggests the Emergency Medical Treatment and Active Labor Act (EMTALA), which ensures public access to emergency services in hospitals regardless of ability to pay, may potentially violate the Constitution, specifically the Fifth Amendment’s Takings Clause, if the Act is interpreted as the government taking property for public use without just compensation.

2. Takings Clause analysis could similarly apply to the Affordable Care Act: the author concludes that rather than implementing the individual mandate as a tax, the insurance mandate could have more easily been implemented as an act of eminent domain (the power of the government to take property in exchange for just compensation). 

Evidence Rating Level: 4 (Below Average) The source law report for this article is an expert opinion

Study Rundown: EMTALA requires hospitals’ emergency departments to screen and stabilize patients even when patients are incapable of paying for services. The law has been on the books for decades, yet the constitutionality of the law has not been evaluated by any of the circuit courts or the Supreme Court. A decision undermining EMTALA’s constitutionally would have major implications for uninsured patients who mainly secure health care services by going to the Emergency Room.  Even though the Affordable Care Act requires patients to purchase insurance via the individual mandate, EMTALA may serve as an “enabler” encouraging people to forego purchasing health insurance and paying the penalty instead.

The Fifth Amendment requires that no private property be taken for public use without just compensation. The article’s author argues that the federal government takes hospitals’ property for public use without paying hospitals, and that may constitute an unconstitutional taking. First, “property” need not be real property (land), and in EMTALA cases, the author concluded that relevant property interest is the hospital’s personal property including medical devices or staff time, and physical invasion of spaces such as the emergency room, operating rooms, or care beds. The report further claims that the relevant “public use” is that the government is taking property to ensure patients are provided with emergency care when necessary, regardless of ability to pay. Thus, it is argues that unless hospitals receive just compensation by the government when a patient fails to pay, EMTALA could be unconstitutional. A determination of whether or not EMTALA is an unconstitutional taking would likely hinge on what constitutes “compensation”.

The interpretation of EMTALA as an unconstitutional taking sheds light on the potential for a similar analysis to apply to the Affordable Care Act’s individual mandate. The report concluded that though the mandate has been deemed constitutional as a “tax”, the mandate can be reconfigured as a proper taking. The “property” taken is the patient’s money, the “just compensation” is the provision of health insurance, and the “public use” is keeping the nation’s health care system viable. The article suggested that because governmental acts of eminent domain (defined above) need to meet a lower standard to be held constitutional by the courts, the mandate could be enforced as a taking if the issue were to reach a court once again.

Click to read the study in Minnesota Journal of Law, Science & Technology

Relevant Reading: Legal Triage for Healthcare Reform: The Conflict Between the ACA and EMTALA

More from this author: Physician recourse to online reviews may be futile, Medical liability system presents hurdles to injured patients

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