Is EMTALA Unconstitutional?

The blogs are ablaze with the idea that the Obamacare ruling by the Supreme Court now makes it likely that EMTALA will be successfully challenged in the Courts as Unconstitutional.

The odd thing is that it is coming from supporters of Obamacare as an accusation that Tea Party supporters will take this approach. And they are suggesting it might win.

In my opinion it is nothing but political theater to continue the hype and fear campaign season rhetoric that has become our full-time media menu from all directions.

Why is EMTALA safe from the Courts?

While I was not a fan of EMTALA – and inspite of decades of working with it, I remain a critic of both the law and its regulatory enforcement patterns – I would wager that a court challenge to
EMTALA at this point would be a total failure.

1.  Obamacare was a much more blatant law imposing on personal choice than EMTALA is (although certainly most physicians find it very imposing).  If the Supreme Court found it Constitutional, they are not going to reverse a law that has been in place 26 years in December.

2.  The only challenge to EMTALA on Constitutional grounds went to the US Court of Appeals over 20 years ago and lost on all arguments.

That is not to say that no court would ever disagree with that court. But the mere fact out of dozens of cases that have gone up on appeal under EMTALA and that no one else chose to challenge it
on Constitutional grounds suggests that a number of big law firms must have chosen to avoid those issues because they feared that the Burditt ruling was good law.

3.  The individual mandate survived even though it was a mandate on all citizens.  EMTALA, however, is only a mandate against healthcare providers and those providers are popularly viewed as
part of the evil rich folks.  Why would the Supreme Court protect them when it is so politically correct to attack high income earners as the enemy of America.  There is no sympathy likely to
force the court to take the side of doctors and hospitals.

4.  The real kicker, however, is that EMTALA doesn’t even actually cover all doctors and hospitals – it only covers Medicare hospitals and physicians who practice in those hospitals.  Actually,
that is a triple whammy from the court’s view.

First, that means there is an option out, unlike Obamacare.  So as impractical as that may seem, physicians and hospitals simply can stop participating in Medicare and avoid EMTALA.  A very small
number of hospitals manage to exist outside of Medicare, and as reimbursement crashes, more may consider it.  Specialists who can exist without hospital privileges can likewise choose not to
retain privileges, and call obligations under EMTALA cease.  So from their logic, EMTALA isn’t even a mandate.

Second, hospitals have to apply to participate in Medicare and AGREE to follow the Medicare Conditions of Participation.  So, EMTALA isn’t even a Constitutional issue as much as it is a contract issue
on just what hospitals and doctors must do to get paid under the contract.

The third issue, however, is probably the guts of the issue. Since EMTALA is a part of Medicare, the first two whammies lead us to the final whammy – in order to find EMTALA unconstitutional,
the Court would have to find most or all of the Medicare program unconstitutional.  Without going into whether or not that is justified, my prediction is that the Court would never even come
close to actually considering that option of killing Medicare regardless of the merits.

So, proponents and opponents of EMTALA, don’t waste any sleep over whether or not EMTALA will get ruled unconstitutional.  There are only two ways EMTALA will go away – Medicare goes bankrupt or Congress chances EMTALA.  I would not hold my breath right now on how soon those two options might occur.