Blog Post | 115 KY. L. J. ONLINE | November 11, 2026
EMTALA’s Empty Promise and the Fix Kentucky’s Rural Hospitals Won’t Take
By: Rhianna Helmers, Staff Editor, Vol. 115
Somewhere in rural Kentucky tonight, someone will suffer from a medical emergency an hour from the nearest emergency room. Federal law makes clear that a hospital must treat that person the moment they arrive,[1] but it says nothing about how far they must travel to get there. That is the quiet paradox at the center of American law for emergency care: the Emergency Medical Treatment and Labor Act (EMTALA) guarantees treatment at the hospital door but guarantees nothing about whether a door exists within reach of every patient.[2] Congress’s answer to this problem, the Rural Emergency Hospital (REH) designation, was supposed to keep those doors open.[3] The designation has not done enough, and the pending bipartisan effort to fix it, REH 2.0, treats the symptom while ignoring the underlying disease.
Congress enacted EMTALA in 1986, folding it into a larger budget act to end “patient dumping,” the practice of hospitals turning away or transferring patients who could not pay for medical care.[4] EMTALA requires any hospital participating in Medicare and running an emergency department to give an appropriate medical screening examination to everyone who arrives and, if an emergency medical condition exists, to provide stabilizing treatment regardless of the patient’s insurance or ability to pay.[5] For nearly forty years, that mandate has been the closest thing the United States has to a universal right to emergency care.[6]
However, this right carries a limit fixed in the statute itself.[7] EMTALA’s obligations are triggered only when a person “comes to” a hospital’s emergency department.[8] The law governs what a hospital owes the patient when they get to the doors, but demands nothing about whether a hospital sits within reach of the patient to begin with.[9] And when a rural county loses its only hospital, that gap turns from a technicality into a crisis. EMTALA’s promise still stands, but it waits at an emergency room the patient cannot reach in time.
Congress saw this danger and responded to it. The Consolidated Appropriations Act, passed in 2021, created a new kind of hospital referred to as “Rural Emergency Hospitals” or REHs.[10] A small rural hospital that converts to an REH gives up inpatient beds, while keeping its emergency department open around the clock alongside outpatient services like lab work, imaging, and surgery.[11] In exchange, the federal government provides a fixed monthly facility payment of roughly $3.5 million a year plus a five percent increase in Medicare outpatient reimbursement.[12] The trade lets a hospital that can no longer sustain inpatient care preserve the one service its community cannot do without: a working emergency room.
On paper, it’s an elegant fix. But in practice, hospitals have largely refused it.[13] Of the more than one thousand rural hospitals eligible to convert,[14] only about fifty had done so nationwide as of spring of 2026.[15] Kentucky tells the same story. The Commonwealth has nearly thirty Critical Access Hospitals,[16] a category eligible to convert,[17] yet only Crittenden Community Hospital and Fleming County Hospital have done so.[18]
The reason is that conversion means giving up inpatient beds, the “swing beds” many rural hospitals use for skilled nursing care,[19] and eligibility for the 340B drug-discount program, which lets hospitals buy outpatient drugs at reduced prices.[20] For many hospitals, a flat payment does not make up for those losses. The hospitals that have converted were already in the deepest trouble: Before converting, they averaged about $22 million in annual revenue, compared with $83 million for eligible hospitals that did not convert.[21] Others fear their communities will see the change as a downgrade, and early evidence suggests that fear is justified.[22] In Michigan, emergency visits fell at one of the first hospitals to convert, and it later closed.[23] So hospitals hold on to inpatient services they can barely sustain until, sometimes, they close altogether.
The REH’s fatal flaw is that it is completely voluntary. Whether a rural Kentuckian has an emergency room within reach depends on whether one hospital’s board decides a hard financial bargain is worth taking. A right that turns on a private institution’s willingness to accept a deal is not really a right. It’s an invitation, and most hospitals have declined it.
REH 2.0, introduced in the Senate in July 2026, would help at the margins.[24] It would let hospitals that closed before the program began to reopen as REHs.[25] It would let REHs offer swing beds and keep certain psychiatric and obstetric units, and it would let some REHs return to critical access status if the model fails.[26] These are sensible changes; however, each one keeps the same structure involving Congress improving their offer in hope more hospitals accept it.
Congress should do one of two things. First, it could make the trade far less punishing, for example, by preserving 340B eligibility and scaling payments to what it actually costs to staff a remote emergency department around the clock. That would make conversion the obvious choice for a struggling hospital. Second, and better, it could stop treating rural emergency access as an invitation at all. Congress could guarantee rural residents access to a staffed emergency department within a reasonable travel time, funding one directly where no hospital is willing or able to provide that access. Congress has even done this before with the 1978 Essential Air Service program, which guarantees small communities a baseline of scheduled air service, paying carriers to provide it where the market will not.[27] EMTALA already treats emergency care as an obligation once a patient arrives to a facility; there should not be any different treatment for getting a patient there.[28]
For forty years, EMTALA has promised that no one in an emergency will be turned away at the door. For rural Kentuckians, that promise means little if the door is an hour down the road. Until Congress treats access itself as an obligation rather than an offer, the guarantee will remain hollow exactly where it matters most.
[1] Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd(a)–(b).
[2] See id. § 1395dd(a) (imposing screening duties on a hospital “that has a hospital emergency department” when an individual “comes to” it).
[3] Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. CC, § 125(a)(1), 134 Stat. 1182, 2960 (2020) (codified as amended at 42 U.S.C. § 1395x(kkk)) (requiring REHs to maintain an emergency department staffed twenty-four hours a day, seven days a week); see also Rural Emergency Hospitals, Ctrs. for Medicare & Medicaid Servs. (last modified Mar. 10, 2026, at 23:46 ET), https://www.cms.gov/medicare/health-safety-standards/certification-compliance/rural-emergency-hospitals (explaining that Congress established REHs to “[r]espond to rural hospital closures” and “[g]ive rural communities more access to health care”).
[4] Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 9121(b), 100 Stat. 82, 164 (1986) (codified as amended at 42 U.S.C. § 1395dd); see also The Emergency Medical Treatment and Labor Act (EMTALA), Off. of Inspector Gen., U.S. Dep't of Health & Hum. Servs. (last updated Sep. 11, 2024), https://oig.hhs.gov/reports/featured/emtala (describing EMTALA as the “patient dumping statute”).
[5] 42 U.S.C. § 1395dd(a)–(b), (d)(1)(A), (e)(2), (h).
[6] See Jennifer A. Staman, Cong. Rsch. Serv., IF12355, Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services 1 (2026), https://www.congress.gov/crs-product/IF12355 (explaining that EMTALA “creates a statutory duty to provide medical care in instances where such a duty may not otherwise exist”); see also § 1395dd(a).
[7] See 42 U.S.C. § 1395dd(a) (imposing EMTALA's screening duty only when an individual “comes to the emergency department”).
[8] Id.
[9] See id. § 1395dd(a)–(c).
[10] Rural Emergency Hospitals, supra note 3.
[11] Ctrs. for Medicare & Medicaid Servs., QSO-23-07-REH, Guidance for Rural Emergency Hospital Provisions, Conversion Process and Conditions of Participation 2 (Jan. 26, 2023), https://www.cms.gov/files/document/qso-23-07-reh-original-release-2023-01-26.pdf.
[12] Ctrs. for Medicare & Medicaid Servs., MLN2259384, Rural Emergency Hospitals 4–5 (Dec. 2025), https://www.cms.gov/files/document/mln2259384-rural-emergency-hospitals.pdf.
[13] Mitchell Mead, Nina M. Clark, Janice C. Probst, Justin B. Dimick, Andrew M. Ibrahim & Cody Lendon Mullens, Early Evaluation of the Rural Emergency Hospital Program, JAMA Network Open, Apr. 22, 2026, at 2.
[14] Id.
[15] Andrew Cass, The 50 Rural Emergency Hospitals, by State, Becker's Hosp. Rev. (Apr. 28, 2026), https://www.beckershospitalreview.com/rural-health/rural-lists/the-50-rural-emergency-hospitals-by-state.
[16] Programs, Univ. of Ky. Ctr. of Excellence in Rural Health, https://medicine.uky.edu/centers/ruralhealth/programs-0 (last visited Sep. 28, 2026).
[17] 42 U.S.C. § 1395x(kkk)(3)(A).
[18] Ky. Cabinet for Health & Fam. Servs., Off. of Inspector Gen., Hospital Directory 1 (Oct. 2026), https://www.chfs.ky.gov/agencies/os/oig/dhc/Documents/Hospital%20Directory%20By%20County.pdf; Andrew Cass, ‘We Would Be Going Out of Business If We Didn’t’: 4 Leaders on Converting to Rural Emergency Hospitals, Becker's Hosp. Rev. (Mar. 5, 2026), https://www.beckershospitalreview.com/finance/we-would-be-going-out-of-business-if-we-didnt-4-leaders-on-converting-to-rural-emergency-hospitals; Press Release, Fleming Cnty. Hosp., Fleming County Hospital Announces New Designation as Rural Emergency Hospital (July 11, 2025), https://www.flemingcountyhospital.com/news/2025/07/11/fleming-county-hospital-announces-new-designation-as-rural-emergency-hospital.
[19] See 42 U.S.C. § 1395x(kkk)(2)(B), (6)(A); Rural Emergency Hospitals, supra note 3 (explaining that REHs are “prohibited from providing inpatient services, except those furnished in a distinct part licensed as a skilled nursing facility”).
[20] See 42 U.S.C. § 256b(a)(4)(L)–(O) (listing the types of hospitals eligible for the 340B program, none of which is an REH).
[21] Mead et al., supra note 13, at 2, 5 tbl. 2.
[22] See Anders Van Sandt, Kaitlyn Line, Anja Gruber, Cris Meier, Craig Carpenter & Scott Loveridge, Rural Emergency Hospitals: Emerging Patterns of Adaptation and Community Perception, J. Rural Health, Jan. 16, 2026, at 7.
[23] Sarah Jane Tribble & Tony Leys, Earlier Lifeline for Rural Hospitals Faces Test Under ‘Big Beautiful’ Law, KFF Health News (Aug. 3, 2026), https://kffhealthnews.org/rural-health/rural-hospital-closures-emergency-conversion-model-congress-michigan.
[24] Press Release, Sen. Jerry Moran, Sens. Moran, Smith Introduce Bipartisan Legislation to Strengthen Rural Hospitals (July 31, 2026), https://www.moran.senate.gov/public/index.cfm/2026/7/sens-moran-smith-introduce-bipartisan-legislation-to-strengthen-rural-hospitals.
[25] Id.
[26] Id.
[27] 49 U.S.C. §§ 41732(b), 41733(d)–(f); see also Airline Deregulation Act of 1978, Pub. L. No. 95-504, § 33(a), 92 Stat. 1705, 1732 (creating the program now known as the Essential Air Service program).
[28] See 42 U.S.C. § 1395dd(a)–(b).