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EMTALA mandates an individual mandate

A meme has been making its way through the Internet that an individual health care mandate has been in the congressional books since 1798. The argument goes that if John Adams and Thomas Jefferson put their pens to a federal act that mandates some private citizens to purchase health insurance, there is no question that an individual health care mandate is constitutional – especially seeing as those guys are the Founders whose intentions today’s politicians and judges debate. As of this posting the federal judiciary scorecard is 3-2 in favor of the constitutionality of the individual mandate of the 2010 Affordable Care Act (ACA). It looks like Anthony Kennedy will let us know before long which side of the debate wins. I’m not going to delve further into the constitutionality of the individual mandate (dammit Jim, I’m a doctor, not an authority on constitutional law). But I do believe an individual mandate is a fiscal implication of the Emergency Medical Treatment and Labor Act (EMTALA).

Hear me out: EMTALA was passed by Congress in 1986 and says, essentially, that anyone who comes into an American ER has the right to 1) a medical screening examination to determine if an emergency exists; 2) treatment for any emergent condition until the point of stabilization; and 3) once stabilized, to have a safe discharge or a safe transfer to an appropriate facility (e.g. long term care) if the patient can no longer care for themselves. A hospital’s obligation to provide emergency service in accord with this act is tied to their receipt of Medicare funds. Since nearly every hospital in America receives Medicare funds that means nearly every ER is open to anyone who comes through the door. Moreover, this applies to every person regardless of who they are, where they came from, whether they pay taxes, or who they pay taxes to.

This is the right thing. It would be wholly impractical, not to mention unethical, to quiz someone – as you’re administering CPR – about their citizenship, if they paid their taxes, or which health insurance plan they have.

Similarly, every person in the US can call 911 and file a police report about a robbery of their home, even if he cheated on his taxes or is a Canadian national. The critical difference in the police example is that health care is largely a private service and is only publically funded for specific sectors of the populace through Medicare, Medicaid, S-CHIP, and the like. However, EMTALA made health care publically accessible to anyone within driving range of an American ER – but conveniently left out a funding mechanism. This is but one of many ways our current health care system shifts public costs to the private sector, thereby increasing premiums for all of us who do purchase health insurance.

That is why it is surprising to me that self-proclaimed fiscal conservatives are rallying against the individual mandate portion of the ACA. It is perhaps the main aspect of the ACA or any recent health care reform proposal that corrects the current fiscal inequities in our health care system and allows the individual to retain choice in their source of health care. The choice to not purchase health insurance isn’t a purely individualistic freedom to fail as some commentators may claim. By not paying for health insurance, but maintaining access to emergency health services, those individuals leave it to the rest of us to cover their bills through our own higher premiums.

Many individuals already use this access to emergency services as their primary form of health insurance. Of these patients very few ultimately pay for this access through their own purchase of insurance. The hospital where I train is taking care of several patients who came through the ER uninsured with ultimately debilitating illnesses, such as severe strokes. These patients are now stable in that they are not acutely decompensating but are in no position to take care of themselves. They are now staying in our hospital for months at a time until their Medicaid or Medicare insurance is processed so we can find an institution that will accept them for safe transfer to long-term care. The costs of this charity care, which can run in the millions of dollars per patient, is being passed on to our insured patients through higher bills and premiums. This is what our hospital system has to do in order to make its ends meet. We are happy to take care of otherwise uninsured patients because doing so fulfills much of our desire to become doctors in the first place. But the fiscal results of this charity service are, unfortunately, too severe and all too common for this system to persist.

Even if it is a stretch to accept that the Founders in 1798 authorized an individual mandate for private citizens to purchase health insurance, it is clear that Congress in 1986 nonetheless provided access to emergency health care to all within our nation. The individual mandate of the 2010 ACA corrects a Congressional oversight by providing a fairer funding mechanism for public access to emergency health care while maintaining individual choice in the source of that care. To nullify that mandate would be, simply, fiscally irresponsible.

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  1. Jane

    You are correct- but I would take your analysis one step further. The individual mandate to purchase health insurance is an awkward provision added to give insurance companies a place at the table and to offer a compromise of sorts to those who find "national health care" too hard a concept to swallow. Forget the individual mandate, just remove the middleman. Implement national health care, and pay for it with taxes. Think of all the underwriting costs that could be saved.

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