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.