Mickey Stevens, MJLST Staff Member
If a person requires emergency medical treatment and shows up at any hospital that accepts payments from Medicare, that person will receive emergency health care treatment without regard to ability to pay, citizenship, or legal status. This happens because the Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986, requires such treatment as a method of preventing the practice of “patient dumping,” where hospitals would refuse to treat people because of inability to pay, among other reasons. A recent circuit court decision and subsequent petition for writ of certiorari to the Supreme Court of the United States has challenged this part of the EMTALA as constituting a taking in violation of the Fifth Amendment.
In February 2014, E. H. Morreim published an article discussing the EMTALA in volume 15, issue 1 of the Minnesota Journal of Law, Science and Technology. In that article, Morreim argued that EMTALA violates the Fifth Amendment’s Takings Clause. According to Morreim, the EMTALA satisfies the three elements of a taking – property, taking, and public use. The article argues that the property taken is both personal property (pharmaceuticals, medical devices, and paid staff time) and the physical invasion of spaces in the hospital, for the public use of ensuring immediate emergency care without regard to the ability to pay. Furthermore, Morreim suggests that the EMTALA may resemble what Justice Scalia has termed a “Robin Hood Taking” where the government takes wealth from those who have it and transfers it to indigent defendants. See Brown v. Legal Found. Of Wash., 538 U.S. 216, 252 (2003) (Scalia, J., dissenting).
At the time of the article’s publication, neither the Supreme Court nor any of the circuit courts had addressed the constitutionality of the EMTALA. That is no longer the case. The Eleventh Circuit addressed the issue and upheld the EMTALA as constitutional in Baker County Medical Services, Inc. v. U.S. Attorney General, 763 F.3d 1274 (11th Cir. 2014). There, the Appellant hospital appealed the lower court’s grant of a motion to dismiss a claim seeking a declaratory judgment that EMTALA was an unconstitutional taking. The Eleventh Circuit upheld the law on the basis that voluntary participation in a regulated program defeats a takings clause challenge. The decision concluded by saying that the Hospital should turn to Congress for a remedy, instead of the courts.
Morreim’s article addresses this so-called “voluntariness” of participation in EMTALA, arguing that the steep financial losses that would occur – the loss of all Medicare funding – render acceptance of the EMTALA obligations far from voluntary. In Baker County Medical Services, the court responded to these concerns, as raised by the Appellant hospital, by stating that economic hardship is not the same as compulsion.
The Eleventh Circuit’s decision prompted the hospital to file a petition for writ of certiorari with the Supreme Court. 2014 WL 6449709. The petition, which cites to Morreim’s article, was filed in November and may soon receive a response from the Supreme Court. As Morreim wrote, “[s]tay tuned . . . the conversation is likely to become quite interesting.”