Patient Dumping: EMTALA Law Governs ER Treatment and Discharge and Maybe Inpatient Also

From Maguire Woods.

EMTALA (Emergency Medical Treatment and Active Labor Act) is a law that governs when a patient may be 1.) refused treatment in an emergency room; and 2.) transferred from one hospital to another. A patient who comes to the Emergency Department with an emergency medical condition must be seen and stabilized before being transferred to another facility or discharged home (this includes pregnancy with active labor and contractions). Originally, EMTALA was considered to apply to Emergency Department care only, but recent court decisions indicate that EMTALA may also apply to patients who have already been admitted to the hospital in Inpatient status and are being discharged home or to a facility.

EMTALA MAY ALSO APPLY TO INPATIENTS

A decision rendered on Sept. 10, 2012, by a federal district court in Texas, reminds hospitals to be extra vigilant in documenting the appropriateness of admitting as inpatients those patients who present in the emergency department and the appropriateness of ultimate discharge following inpatient admission.

In its memorandum opinion and order, the Court held, as a matter of law, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) may continue to apply under circumstances in which a patient is seen in an emergency room (ER) and then admitted to the hospital as an inpatient. As such, the Court denied the defendant hospital’s motion to dismiss the plaintiff’s EMTALA claim based on the key fact that the patient had been admitted as an inpatient to the hospital. This holding deviates, however, from federal guidance on the applicability of EMTALA to inpatients. Specifically, as recently as Feb. 2, 2012, the Centers for Medicare and Medicaid Services (CMS) reaffirmed, in a proposed rule, that a hospital’s obligation under EMTALA ends either when the individual is stabilized or when the hospital admits the patient in good faith as an inpatient in order to continue providing stabilizing treatment.[1] CMS originally finalized this rule in September 2003 and previously affirmed it in August 2008.

In the Texas case, the plaintiff, an uninsured patient, presented to the defendant hospital’s ER and was found to be suffering from bilateral pneumonia, adult respiratory distress syndrome and significant lung damage. The hospital admitted the plaintiff into its facility as an inpatient, and he stayed until he was discharged home nearly a month later. The plaintiff alleges that while his condition was still unstable, various doctors and nurses at the defendant hospital attempted to transfer him out of the hospital on 18 separate occasions because he was uninsured. On one specific occasion, the plaintiff went into cardiac arrest at or near the time he was placed in an ambulance for transfer. After being resuscitated, he returned to the defendant hospital’s intensive care unit and was placed on a ventilator. The plaintiff alleges that he was later discharged home improperly because his condition was still unstable.

The hospital moved to dismiss the EMTALA claim on grounds that the plaintiff was admitted to the hospital in good faith as a bona fide inpatient. After recognizing that there is a split among circuits as to whether EMTALA applies to inpatients, the Court denied the hospital’s motion to dismiss. In its opinion, the Court held that the statute’s application “does not turn on the administrative status of the patient but on his or her medical status.”[2] The Court stated that an EMTALA claim cannot be barred “simply because a patient has been admitted to a hospital as a bona fide inpatient.” Because the Court found that, at this stage of the case, the plaintiff pleaded sufficient facts to state a plausible claim that his condition was never stabilized, it must be left to the trier of fact to determine whether the defendant hospital’s actions constitute a violation of EMTALA.

This recent decision serves as a reminder that the application (or nonapplication, as the case may be) of EMTALA to inpatients is not well settled. Therefore, hospitals should be especially careful to document their actions any time a patient presents to the facility through the ER.

EMTALA enforcement is triggered by patient complaints.

1. Emergency Medical Treatment and Active Labor Act (EMTALA): Applicability to Hospital Inpatients and Hospitals With Specialized Capabilities, 77 Fed. Reg. 5213, 5214 (Feb. 2, 2012).

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What is patient dumping? Incident with woman at Baltimore hospital is hardly new

Patient dumping is when a hospital releases a patient to the streets rather than keeping them or connecting them with needed social services.

The University of Maryland Medical Center Midtown in Baltimore is the latest hospital across the country accused of patient dumping after discharging a woman one cold night this week dressed in only a hospital gown and socks.

Video shot by a concerned passerby depicted the disoriented woman left at a bus stop outside the hospital as four security guards walk away with a wheelchair. The video went viral thrusting the hospital into the national spotlight.

The practice of patient dumping is a national problem that’s hardly new.

When the term was first coined in the late 1800s, it involved private hospitals sending poor patients to public hospitals, but it’s come to mean any hospital that releases someone, usually a homeless and/or mentally ill person, to the streets rather than sending them to a shelter or appropriate services.

The New York Times first began writing about patient dumping in the 1870s when private hospitals were sending patients who couldn’t afford their services to Bellevue Hospital, the city’s public hospital, according to a 2011 report in the American Journal of Public Health.

Traditionally, poor patients in the United States were largely treated by public or charitable hospitals. Private hospitals were under no obligation to admit patients and could refuse service to anyone.

That changed in 1986 when Congress passed the Emergency Medical Treatment & Labor Act, which was signed by President Ronald Reagan. The law prohibited emergency rooms from denying hospital services to anyone even if they can’t pay and also from transferring or discharging patients without first stabilizing them.

The Joint Commission, which accredits hospitals, also requires that hospitals have a discharge plan. But discharge policies can differ widely by hospital.

The issue drew widespread national attention about a decade ago when the city of Los Angeles began a crackdown on patient dumping after several incidents there, particularly along Skid Row, where many of the city’s homeless people live. The city has imposed millions of dollars in fines on hospitals for the practice.

In one particularly egregious incident, a paraplegic man was found crawling around Skid Row in 2007. Hollywood Presbyterian Medical Center, which was accused of taking him there without a wheelchair, paid $1 million to settle that case.

Good Samaritan Hospital in Los Angeles had to pay $450,000 to settle allegations that it dumped a homeless patient on the street in 2014 after he was treated for a foot injury.

The Rawson-Neal Psychiatric Hospital in Las Vegas has been accused of shipping hundreds of patients out of Nevada, many of them to California, by bus, according to a 2014 report by the U.S. Commission on Civil Rights on patient dumping. Multiple lawsuits alleged the hospital dropped patients off at the bus station with a prepaid ticket and a few days food and medicine.

In May 2017, two Howard University police officers and their supervisor were fired after being recorded dumping a patient from a wheelchair outside the university’s hospital in Washington, according to reports in The Washington Post. A video of the incident showed a male officer pushing the barefoot woman to a bus stop. Two other officers watched as she fell onto the sidewalk.

The Commission on Civil Rights’ report found insufficient regulatory oversight as well as a lack of funding to adequately treat the population contributed to patient dumping.

The commission called for reforms to the Emergency Medical Treatment & Labor Act, increased oversight and training, better linking community mental health services to hospitals, and consistent discharge planning.

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Patient Dumping.

By Kathleen Maynard, RN, OTR/L, ACM-RN.

UF Health Shands Hospital was front-page news all over the country 35 years ago, when they loaded an AIDS patient from South Florida onto a plane, stuffed $300 in his pockets, and flew him to San Francisco, where he was dumped at the office of the city’s AIDS Foundation. UF Health Shands Hospital learned its lesson, right? Nope. Shands just learned how to dump patients “under the radar” so that media outlets don’t recognize what is happening.

Shands has learned not to inappropriately transfer patients to other hospitals as this will almost invariably result in a complaint from the receiving hospital. Instead, Shands discharges patients to rehab/skilled nursing facilities or to home before the patient’s emergency medical condition has been stabilized.

After working for about a year as an Orthopaedic/Orthopaedic Trauma Case Manager/Discharge Planner, I transferred to the Admission Discharge Transition Unit to work as a staff nurse. One day we had a Trauma patient (brain injury) transfer to the ADTU (admission discharge transmission unit) for discharge teaching prior to discharge home. In the process of admitting the patient to the ADTU, helping him to the bathroom, and having our telephone translation service help translate the patient’s discharge instructions to him, I discovered that not only could the patient not walk without assistance, he was disoriented to the degree that he didn’t know where he was (didn’t know he was in the hospital, didn’t know he was in Gainesville Florida, didn’t know the month, day, or year, and only knew his name and that “I got hurt”). He lived in the Lake City/Live Oak area about 50 miles away, and his instructions were to catch a bus outside the hospital, take it to the Greyhound station where he would purchase a ticket to Live Oak using the voucher the Discharge Planner had given him, and then take a city bus home from the station.

I quickly realized that, with his inability to walk unaided, lack of English language skills, and confusion, these instructions were beyond his capabilities. Having worked as a Case Manager/Discharge Planner for Orthopaedic Trauma in the immediate past, I knew I needed to call the patient’s Discharge Planner and ask her to revise the plans in a way that would allow this man to get home safely.

I assumed the Discharge Planner had not been informed of the patient’s confusion, his inability to walk without assistance, and lack of English language skills. As requested, the Discharge Planner did adjust the discharge plans to my satisfaction, but I still wondered (silently) why a patient with such a severe head injury was not being sent to a rehab facility. However, some patients don’t want to go to Rehab, and that is their right.

The next day, my manager informed me that “The Trauma Docs were very unhappy that you questioned the discharge plan,” and “the Trauma Doctors were satisfied with the discharge plan and were not happy that you interfered,” and “the Trauma Doctors said they will not use the ADTU for their discharges if the staff continues to question the plans made by the Trauma Service Discharge Planners.” I was truly flabbergasted that the Trauma Service endorsed an unsafe discharge plan. It wasn’t until years later, that I realized the Trauma service was dumping their patient and was unhappy that I interfered with the dumping process.

How to Prevent Patient Dumping  

What can family members do to prevent their loved ones from being dumped? There are some ways in which family members can help decrease the possibility of dumping. One way, of course, is to be an active, present advocate for your loved one while he/she is hospitalized. Hospitals are much more likely to dump someone without an advocate (like the AIDS patient referred to at the beginning of this post). You should know that to financially qualify for post-hospital rehab per Medicare guidelines, the hospital patient must be an Inpatient for a minimum of 3 days *and* have a need for skilled nursing care. These are Medicare rules.

Many patients are admitted under Observation or Ambulatory status (especially on weekends) so it’s very important for family members to find out what status the patient has been admitted under (Ambulatory, Observation, or Inpatient)and ensure that Case Management immediately switches the patient to Inpatient status if appropriate. It cannot be done retroactively, so family members should address this immediately.

If the patient is too ill/unstable to be cared for at home post discharge from an acute care hospital such as Shands, family members should let Case Management know ASAP if they will not be able to care for the discharged patient at home. Finally, there are options for more intensive care than is normally provided by skilled nursing facilities. Ask if your loved one will qualify some facilities provide more intensive nursing care than a skilled nursing facility and more intensive rehab services (Speech, Occupational, and Physical Therapy Services, in addition to Recreation Therapy and Psychology).

Finally, complaints can be made to the agencies responsible for enforcing EMTALA: Centers for Medicare and Medicaid Services (CMS) or the State Survey Agency (in Florida the Florida Agency For Healthcare Administration  Consumer Complaint, Publication, and Information Call Center https://ahca.myflorida.com/Contact/call_center.shtml). While I would consider these complaints last-resort, it’s very important that they be informed of cases of patient dumping in order to note trends among particular hospitals.

Addendum: Since this post was written, there have been reports of “churning” by hospitals. “Churning” is a method of ensuring that a patient’s Medicare can continually be charged for new DRGs (classifications for hospital cases). The method is this: the acute care hospital discharges a patient to a long-term acute care hospital , often before the patient is well enough to leave (“dumping”). New DRGs can be billed in the new care setting.

The patient gets sicker at the acute long-term care hospital or skilled nursing facility (perhaps because he/she was discharged from the acute hospital too soon), and gets sent back to the acute hospital. The acute hospital is now able to bill for new DRGs . Once the new DRGs have run out at the acute-care hospital, the patient is transferred back to the acute long-term care hospital or skilled nursing facility again, and the facility can also charge for new Medicare DRGs. This “churning” between facilities results in the patient getting sicker and sicker, while new DRGs can be billed with each transfer. A healthcare professional commenting on “churning” on Becker’s, an online newsmagazine for healthcare professionals and hospital administrators, stated that once her father had been “churned” multiple times he was actually killed when he was no longer profitable.

Note: This post is in not meant to provide legal advice.

Apr. 10, 2018

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