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Michelle Nicole Diamond

Excerpted from:  Michelle Nicole Diamond,   Legal Triage for Healthcare Reform: the Conflict Between the ACA and EMTALA, 43 Columbia Human Rights Law Review 255 (Fall, 2011) (Student Note) (196 Footnotes)



In March 2010, the Obama administration and the 111th Congress established the first nearly universal healthcare system in the history of the United States, achieving a goal that eluded American politicians for much of the last century.  The new health *256 reform legislation, the Patient Protection and Affordable Care Act (ACA),  overhauls the United States healthcare system. The Congressional Budget Office anticipates the law will extend health insurance to roughly thirty-two of the fifty million currently uninsured Americans.

As a reflection of the law's significance, numerous articles, briefs, and court opinions discuss the relationship between the ACA and the Commerce Clause,  Tax and Spending Clause,  and *257 Necessary and Proper Clause.  However, the literature has neglected another important relationship--the conflict between the ACA and the Emergency Medical Treatment and Active Labor Act (EMTALA).  This Note is the first to analyze this conflict and its important legal and policy implications.

The ACA and EMTALA are, in practice, incompatible statutes. Enacted in 1986, EMTALA mandates that hospitals treat anyone in need of emergency medical care, regardless of his citizenship status or ability to pay for treatment.  The ACA reduces by 75% the funding, known as “Disproportionate Share Hospital” (DSH) funds, on which hospitals depend to offset the costs of providing the care required by EMTALA.  The reductions rely on the theory that because the ACA requires individuals (with a few exceptions) to purchase health insurance, hospitals will treat fewer uninsured patients who require emergency care that they cannot afford, incur lower uncompensated care costs, and therefore require less government funding.  However, this theory is flawed. As Al *258 Aviles, President and CEO of the largest municipal healthcare system in the United States, explained, “[T]hat calculus doesn't work in places like New York,” where undocumented immigrants make up a large percentage of uninsured patients and are excluded from the coverage expansion.  Under the ACA, federal funding to hospitals will decrease while the number of uninsured undocumented immigrants will remain roughly the same.  Undocumented immigrants contribute to a significant portion of hospitals' unreimbursed costs; thus, the DSH reductions will impose serious and unintended financial burdens on states and hospitals.

The discord between these statutes is problematic on two levels. First, the ACA reduces DSH funds without altering the treatment hospitals are required to provide under EMTALA, creating, in effect, an unfunded mandate.  Second, the financial strain created by the conflict may force hospitals--especially public hospitals--to face the unpalatable choice of refusing to treat undocumented immigrants and paying penalties for violating EMTALA or risking bankruptcy and emergency room closure.  In short, the conflict undermines the ACA's fundamental goal of expanding access to affordable medical care.

This Note argues that the Secretary of Health and Human Services (HHS) can and should use her administrative authority under the ACA to mitigate the hardship imposed on states and hospitals by interpreting “uninsured individuals”--the undefined term upon which DSH reductions are based--to include undocumented immigrants.

Part II outlines the relevant healthcare laws: EMTALA, DSH, and the ACA.

Part III explains the conflict between the ACA and EMTALA. Part III.A details the statutory clash and resulting unfunded mandate. Part III.B explains the practical implications of the conflict--the financial strain on states and hospitals caused by providing unreimbursed treatment to undocumented immigrants.

Part TV proposes administrative and legislative solutions for alleviating the unintended consequences of the new health law.

One qualification: whether the United States should affirmatively provide health services to undocumented immigrants and how to best provide immigrant care are questions beyond the scope of this Note. Both are important questions to which hundreds of *260 pages of law review articles have been dedicated.  This Note does not attempt to resolve those questions on either a normative or practical level. Its more modest goal is to highlight the conflict between the ACA and EMTALA and identify tools for alleviating the burden that will befall hospitals and states as a result.

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