On EMTALA and the Moral Logic of Government Mandates


This post is my reply to Jeff Hammond’s blog post, part of our ongoing conversation about healthcare ethics and law.  Jeff’s post is available here.

Many thanks to Jeff for his generous response and his participation in this conversation. Having read Jeff’s first post, I’m uncertain whether or not to call our electronic exchange a “debate.” How far apart are we really? Jeff and I agree that we want a healthcare system that enables people to get the care that they need, admitting that moderate scarcity forces us to grapple with what is possible given these limits. As Jeff says, “Common human decency, I think, demands that everyone have at least some of the care that they require.” I like this, principally because Jeff’s claim describes this commitment in explicitly moral terms.  To have a healthcare system that creates substantial obstacles that inhibit access to care is indecent.

Of course, Jeff observes that this moral demand has been embodied in American law at least since 1989.  I was really excited when reading Jeff’s first blog post that he chose the Emergency Medical Treatment and Active Labor Act (EMTALA) as an example to illustrate this point. In my bioethics course I often use EMTALA as an example of how laws are the embodiment of the moral commitments of communities. Jeff and I, and most Americans I would argue, believe that to deny emergency care to an accident victim who is unable to pay for the care is indecent.  It’s something that emergency care providers should not do.  For this reason, EMTALA coerces emergency care providers, mandating that they must

  • provide a medical screening exam to determine whether or not a patient has symptoms consistent with an emergency medical condition (EMC).
  • provide treatment to patients suffering from an EMC up to the point when the patient has been stabilized.
  • provide transfer to another emergency care provider in the event that they lack the capacity to treat the patient.

Hospitals may do credit checks and may seek payment from patients who are uninsured, but they may not deny access to emergency care if they discover that the patient is uninsured or has bad credit. They also may not provide lower quality healthcare to a patient who they know is unable to pay for the care.

Emergency care providers are well aware that Jeff’s imaginary “bum” will never pay for the care that he receives.  Jeff correctly observes that EMTALA mandates that hospitals provide care but does guarantee that they will be compensated for it. This feature of the law is what gives rise to the “free rider” problem. If I know that a hospital is legally obligated to provide care to me in the event of an emergency, why not dispense with insurance altogether confident that the law will force hospitals to provide care that I won’t be able to pay for?  Hospitals bear the financial burden of this problem most directly.  A December 2016 report from the American Hospital Association notes that American hospitals have provided more than $538 billion in uncompensated care since 2000. Those of us who pay for health insurance bear this cost indirectly as well in the form of higher healthcare costs and higher insurance premiums.

Rather than digging more deeply into the details of EMTALA, I want to step back and extend from where Jeff and I agree to make a larger point about where we may disagree.   If I am reading Jeff correctly, he and I agree that having a “last line of defense” like EMTALA is a good thing. Jeff is correct that I don’t think EMTALA by itself sufficiently describes the conditions of care that I would hope for in a just healthcare system. Surely proper access to care  entail more than that I am able to go to the hospital when I  am so sick that I am facing imminent peril. There are also sound economic reasons for wanting something more robust.  Preventative care is less expensive than emergency care, after all; setting aside the moral question, shouldn’t we all prefer a system that allows easier access to high quality preventative care that will help reduce the need for expensive emergency care?

But setting this aside, let’s return to the moment to this point: EMTALA is a good example of a government mandate that coerces healthcare providers, forcing them to provide care, some of which will go uncompensated.  As Jeff well describes there are good moral reasons for mandating that hospitals provide emergency care, and there was bipartisan political consensus that led to this law’s passage in the 1980s. EMTALA was signed into law by President Ronald Reagan after making its way through a Democratic House and Republican Senate. Jeff and I agree that this is an example of a legal mandate that we ought to have. To not have this last line of defense would be indecent.

Now consider the current debate about the individual mandate under Obamacare.  The Affordable Care Act mandates that every American have health coverage either through an employer, Medicare, Medicaid, or through a subsidized private insurance plan. What about this mandate?  The standard conservative criticism is that it is wrong for the state to mandate that individuals purchase a product (i.e. a health insurance policy) from a private company. Jeff can speak for himself here, but I gather that he himself is critical of the individual mandate on these, and perhaps other, grounds. But this is the point: to the extent that conservatives are already on board with a coercive government mandate applied to emergency care providers (i.e. EMTALA), it isn’t enough to simply say that coercing people to purchase insurance is morally wrong. One needs to explain why this particular mandate is any less defensible than the mandate that hospitals provide emergency care.

But here I can think of many reasons why an individual insurance mandate is defensible in a community like ours that embraces the moral logic behind EMTALA.  The most obvious reasons are financial ones: if the EMTALA mandate gives rise to the free rider problem, an individual mandate is one way to ensure that there are fewer people receiving uncompensated care. An individual mandate also insures that a system that mandates health insurance providers provide coverage to every person (another coercive mandate) has a large enough pool of healthy consumers paying more than they are taking from the system, essential for a stable insurance market.

Beyond these financial reasons if one is looking for an eloquent and compelling moral defense of the individual insurance mandate, one need look only as far as the conservative policy think-tank The Heritage Foundation. In 1989, Stuart Butler, long-time Director of the Center for Policy Innovation at the foundation wrote a position paper defending the idea of an individual insurance mandate in explicitly moral terms (I’ll highlight the relevant portions in bold):

Many states now require passengers in automobiles to wear seatbelts for their own protection. Many others require anybody driving a care to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.

This mandate is based on two important principles. First, that health care protection is a responsibility of individuals, not businesses. Thus to the extent that anybody should be required to provide coverage to a family, the household mandate assumes that it is the family that carries the first responsibility. Second, it assumes that there is an implicit contract between households and society, based on the notion that health insurance is not like other forms of insurance protection. If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, American will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services–even if that means more prudent citizens end up paying the tab.

A mandate on individuals recognizes this implicit contract. Society does feel a moral obligation to insure that its citizens do not suffer from the unavailability of health care. But on the other hand, each household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself. 

Notice Stuart’s appeals to individual responsibility, “the implicit contract between households and society” that provides moral justification for a mandate.  As long as we are in a society that requires hospitals to provide care in moments of emergency, Stuart’s point is that members of our community have a moral obligation to avoid burdening other citizens when we are the ones in need of care.

Much more to be said here, but this post has gotten long.  Truth be told, this discussion about the individual insurance mandate may become moot.  Recent reports indicate that President Trump may not enforce the individual mandate, though he is inclined to keep the provisions mandating that insurers provide coverage without respect to preexisting conditions. Jeff well knows that this policy combination is a recipe for disaster.  That’s for another post…



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