EMTALA Turns 30: Unconstitutional from Birth

Abstract

The Emergency Medical Treatment and Active Labor Act (“EMTALA”) requires every Medicare-contracting hospital with an emergency department (“ED”) to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare’s initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA’s constitutionality.This Article proposes that EMTALA violates the Fifth Amendment’s Takings Clause. First, it imposes a host of individual takings as the government forces one private party — the hospital — to transfer personal property to another private party — the patient. Here, violations depend on whether the hospital is justly compensated.Second, EMTALA as a whole is an “unconstitutional condition” imposed on hospitals’ participation in Medicare. Although the government can properly attach “strings” to ensure public funds are spent as Congress intended, the government cannot with impunity require persons to waive fundamental constitutional rights as a condition for receiving a government benefit. This Article shows that, as EMTALA forces hospitals to abdicate their Fifth Amendment right against uncompensated takings, it exceeds the Supreme Court’s boundaries on federal spending.In the final analysis, EMTALA’s mandate that hospitals care for emergency patients should remain, but hospitals must be justly compensated.