13 February 2007

Update -- In which I am taken to school

Ahem.

Symtym, who is apparently a real, genuine law-talking-guy, explains in pretty clear and convincing language why I don't know my ass from a hole in the ground why my previous proposition is legally invalid. Money quote:

There is no taking under the 5th Amendment, nor is there an issue of due process under the 14th Amendment. Because participation in the Medicare program is optional (albeit, it is the rare physician or hospital that can survive without participation). [...edit...] EMTALA is a pre-condition for participation and payment by Medicare.
I think this is the fatal blow against my argument. It makes sense not only on the merits of the argument but also from a common sense perspective. If there were a valid constitutional claim against EMTALA, the first doc fined under it in 1986 (or whenever) would have made it, and since the law is still around, well, assume the conclusion. I don't agree with all of Symtym's assertions, but the point is moot so I won't belabor it.

OK, I will just a little. To be clear: I claimed that EMTALA might be an impermissible taking not just because it was a "taking" but because it is without just compensation. Were EMTALA funded (even to the pitiful Medicare level) it would be a lot more acceptable to the rank and file ER Docs.

Symtym derides this train of thought as "self-serving" but I will point out that my particular proposition was based on the premise that:
a) EMTALA is bad policy, and
b) overturning EMTALA might be a spur for action towards comprehensive health care reform.

Is it self-serving for my interests as a physician? Yes, but I do not think it is unreasonable to desire to be compensated for the services I provide -- all the services I provide. But this is also an unusual case in which my interests and those of the nation as a whole are aligned. If universal health care coverage is enacted, then the human tragedy of the uninsured being dropped in the ER in critical condition because of lack of access to routine care will cease. And if universal health coverage is enacted, then (presumably) I will be paid for taking care of those individuals whom I currently care for for free. And if universal health care is enacted, as a consumer, my premiums will no longer be inflated due to the fact that the ER doctors charge $350 per insured patient to subsidize the $0 per patient we collect from the uninsured patients.

[Ironic side note: our practice, a "small business" cannot find affordable health insurance. How funny is that -- the doctors can't afford health insurance! Kind of funny. Kind of not.]

But if that is "self-serving" well, I'll plead guilty.

6 comments:

symtym said...

To constitute a taking there must be some property that has been taken or threatened with a taking by a governmental actor. This is where the argument fails -- there is no property. There is an expectation of property in the form of an expected remuneration for the services rendered. The actual taking is by the beneficiary of the service -- not a governmental actor. The government plays the role of the third-party payer. Again, there is a failure to demonstrate a taking by a governmental actor.

Even if a case can be made for an impermissible taking, the 5th Amendment does not trump Congress's powers under Article I of the U.S. Constitution. EMTALA may be bad policy, but from another perspective it is actually the federal government's greatest health program -- with an enrollment of 45 million. The big problem is that it constitutes an unfunded mandate, because only the rare physician or hospital can survive without compliance.

Self-serving is just fine, because we walk in the same shoes; however, building our arguments against EMTALA or for a national health policy will fail where we fail to recognize and appreciate the actual issues at play.

Anonymous said...

EMTALA and Medicare participation is a precondition only for the hospital, not for the doctor. I, as a physician participating in the ER Call Panel, am bound by EMTALA solely because I participate in ER Call for the hospital, not because I participate in Medicare.

From the EMTALA site...
Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination...

As such I am only bound by EMTALA because I choose to help my hospital and their emergency department. For the record, ER call is voluntary at our hospital.

JimII said...

Symtym, you're not an attorney are you? The reason I ask is because I am one, and I would be surprised to hear another attorney speak with such certainty about questions like what constitutes property. Also, Constitutional amendments do generally "trump" conflicting portions of the main body of the Constitution. And later amendments trump earlier amendments. It's boring, but if you look at the jurisprudence around soveriegn immunity & the 11th amendment you will find that to be the case.

I think you are generally right. And in fact, I beleive I gave, *sigh* Shadowfax, a similar analysis of his argument though with less certainty, and for that reason I assume, he was less convinced.

symtym said...

jimii

I believe we're missing on the argument -- it isn't about what constitutes property, it is about where EMTALA's power comes from. Its power is not derived from the 5th Amendment, but form Article I. Congress has plenary power to tax and spend -- there is no amendment that trumps that, including the 11th Amendment (infra).

If the Constitutional "power source" for EMTALA is ascribed to the 5th Amendment, then a property discussion comes into play. I don't believe that is correct. Because the power source for EMTALA is in Congress's plenary powers.

I'm missing your reference to the 11th Amendment -- I haven't seen any discussion in these related threads of suits against a State. These discussions have centered around federal payments for healthcare services rendered and the federal imposition of EMTALA conditions for those healthcare entities that voluntarily participate in the Medicare program. There is no state action, only federal action.

Not an attorney, but see here -- these opinions are the opinions of a full-time practicing emergency physician. I deal with EMTALA every shift and I have no allusions (or delusions) that I'm having property taken by the federal government. I do have a deep appreciation of my duties under EMTALA, because I must participate in the Medicare program...

JimII said...

Symtym,

Yes, I was probably overly focused on minutia. I understand your point to be that the power of Congress to enact EMTALA comes from Article I, and probably the commerce clause, because the health and welfare clause isn't used much to justify things.

I only brought up the 11th amendment jurisprudence to correct this single comment, "the 5th Amendment does not trump Congress's powers under Article I of the U.S. Constitution." That is not really right. The 5th Amendment doesn't take away the Congress's ability to pass legislature, surely. But, if a piece of legislation violates the 5th Amendment it is invalid.

So, for example, legislation passed under the authority of the Commerce Clause that violated the 11th Amendment is invalid. If it is passed under the authority of the 14th Amendment, but violates the 11th Amendment, it is valid, because the 14th came later. (I think it is a little silly, but I don't know that I have a better suggestion.)

Summary: I think you are right about EMTALA not being unconstitutional, at least based on the theories put forward by the mysterious Shadowfax. However, I think there is less certainty with these things than you might believe. On the third hand, I think there is a much better way to fix bad social policy than challenging it in court.

symtym said...

jimii

> probably the commerce clause, because the health and welfare clause
> isn't used much to justify things.

EMTALA is not a regulatory exercise under the Commerce Clause, but a spending exercise under the Spending Clause (as is Medicare). There is no "health and welfare clause," because "health and welfare" falls to the states under their general police powers and the 10th Amendment. The actual Article I phrase is "common defense and general welfare" -- which is never construed into the notion of "health and welfare" (which has highly specific connotations) You don't need to go any further than the Spending Clause to see Congress's valid constitutional authority.

Does Medicare/EMTALA have impacts upon commerce -- of course, but mere impact upon commerce does not imply that the Commerce Clause is necessarily implicated, esp. when there is another source for Congress's power.

> I only brought up the 11th amendment jurisprudence to correct this
> single comment, "the 5th Amendment does not trump Congress's powers
> under Article I of the U.S. Constitution."

In the context of my original post, it is a correct statement. If you take it out of context, as you have, then of course an act of Congress cannot violate due process under the 5th Amendment. Back to the original theme of this thread and my comments -- it is wrong to consider EMTALA an unconstitutional taking, but rather a constitutional exerice of Congress's power to spend.

> So, for example, legislation passed under the authority of the Commerce
> Clause that violated the 11th Amendment is invalid. If it is passed
> under the authority of the 14th Amendment, but violates the 11th
> Amendment, it is valid, because the 14th came later. (I think it is a
> little silly, but I don't know that I have a better suggestion.)

OK, but you're making a point on something you have taken out of context. Again, my original statements are that the 5th and 14th Amendments are not applicable to a discussion of EMTALA *because* there is not a taking, *but* a Congressional conditioned spending that is not violative of any Amendments. The 11th Amendment is *not* applicable because there is no suit against a state. Again, Congressional spending *trumps* the 5th and 14th Amendments not because of Constitutional construction but because conditioned spending trumps the putative taking (correct power trumps wrong power).

> Summary: I think you are right about EMTALA not being unconstitutional,
> at least based on the theories put forward by the mysterious Shadowfax.

The reason I chimed into this thread is because Shadowfax raised a common misconception amongst Emergeny Physicians. The misconception is that EMTALA is somehow a taking of property, and therefore, unconstitutional. That is incorrect! The conditioned spending of federal tax dollars is about as far removed from the taking of personal property you can get.

> However, I think there is less certainty with these things than you
> might believe.

That's conclusory, and to be equally conclusory -- Congress is certain and I've certainly identified why they can be certain.

> On the third hand, I think there is a much better way to
> fix bad social policy than challenging it in court.

Who says EMTALA is bad social policy? On what basis are you calling it bad social policy? It was a legislative attempt to correct the unacceptable practice of financially screening and dumping patients in the 1980s. A "much better way" is a conclusory statement. If you are using this thread to boot-strap your notions of socialized medicine then I do believe netiquette would say you have well exceeded the bandwidth of this thread and certainly my participation, which was solely directed at a common misconception in the Emergency Medicine community.