Last Friday President Trump travelled to Walter Reed Hospital in the Presidential helicopter, Marine One, to seek treatment for COVID-19. The President has use of a helicopter, most of us don’t. Sometimes air ambulances are necessary, particularly in remote rural areas, to transport individuals with severe injuries or illnesses.
But if you read this blog, you know that air ambulance bills are often incredibly expensive — and even worse not covered by insurance.
So why are air ambulance charges often not covered by insurance?
Preemption: Federal rock breaks state scissors
Air ambulances are regulated by the Federal Aviation Administration. The authority for this regulation is the so-called interstate commerce clause. Insurance, whether health insurance or workers compensation, is governed by state law because Congress ruled that insurance regulation is the purview of state law. Workers’ compensation laws are state laws that are constitutionally valid due to a state’s general police powers under the 10th Amendment.
So when accident victims try to pay for an air ambulance charge with health insurance or through workers’ compensation insurance, air ambulance providers argue they aren’t bound by state laws regulating insurance since they are regulated by the federal government.
This argument is called preemption. Preemption means that if state and federal laws conflict on a subject that federal law governs. In other words, the federal rock crushes the state scissors. A majority of courts side with the air ambulance companies in holding that federal law regulating air ambulances pre-empts states from using their laws on insurance to regulate air ambulance charges.
In practical terms, injury cases involving air ambulances are more difficult to resolve. Fortunately, air ambulances aren’t covered by Nebraska’s lien statute which gives doctors and other providers a right to recover unpaid bills out of a personal injury settlement. This can give attorneys some leverage over these providers
What would the Founding Fathers think about air ambulances?
Before he went to the hospital, the President nominated 7th Circuit Court of Appeals Judge Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court. Barrett’s views on abortion and other hot button social issues have drawn attention. But the bulk of cases decided by federal courts tend to be esoteric and obscure issues like air ambulance charges that stem from tensions within the United States Constitution.
I don’t know if Barrett has ruled on an air ambulance case. Barrett is known as an “originalist” or someone who looks at the intentions of the Founding Fathers in interpreting the Constitution.
But in my mind air ambulance cases are one example of the limits of the originalist approach. Passenger air travel post-dates the Constitution by about 130 years. What would the Founding Fathers know about air ambulances? Anyone who brings an originalist approach to deciding an issue like air ambulance charges is just dressing up their policy preferences in late 18th century garb.