Christopher Howard killed his wife with an ax in her bed in 2002. He was convicted and sentenced to life in prison. The family of the murdered woman sought to hold another party responsible for her death: the suburban Detroit hospital that discharged Howard 10 days earlier.
Stretching the limits
Hospitals watch as Supreme Court considers taking Michigan case that would expand their responsibilities under EMTALA
The hospital—Providence Hospital in Southfield, Mich.—has petitioned the U.S. Supreme Court to review the case, which upset a settled understanding of what’s expected of hospitals under the federal Emergency Medical Treatment and Active Labor Act, at least within the jurisdiction of the 6th U.S. Circuit Court of Appeals.
The law against what’s commonly referred to as patient dumping is the policy product of sad and sensational news reports about hospitals that allegedly denied care because it wasn’t in their economic best interest. Nearly 24 years since Congress came up with it, regulators, providers, lawyers and judges continue to wrangle over what it requires.
A technical advisory group completed work last year on a few dozen recommendations, arriving at some of them after contentious debate. The CMS is still responding to the group’s suggestions as well as working to explain the rules for providers and the regional offices and state surveyors that field complaints; the latest iteration of the manual includes wide swaths of red italics representing new attempts to clarify the guidelines as of May.
And leaving aside questions about EMTALA—which everyone agrees demands that hospital emergency departments screen and, if necessary, stabilize or appropriately transfer patients with emergency medical conditions—the Los Angeles city attorney’s office has moved aggressively against hospitals that officials believe have systematically dumped discharged, homeless patients suffering from mental illness within the area known as Skid Row.
After suing and securing four settlement agreements with hospitals, the office is on the verge of a new accomplishment: A hospital is poised to sign a voluntary agreement to never discharge such patients in the area and follow other discharge protocols.
The Michigan EMTALA case brought by the family of murder victim Marie Moses-Irons is peculiar on two counts. First, the appeals court allowed someone other than the patient to bring the suit. Second, and more confounding to providers in the court’s jurisdiction—Kentucky, Michigan, Ohio and Tennessee—the court decided that the hospital failed to satisfy its obligations under the law even though Howard was examined, admitted and treated for several days before he was discharged.
The 459-bed hospital’s parent, Ascension Health’s St. John Health System, declined to be interviewed or provide a comment for this story.
In a 2003 rule, the CMS clearly stated that EMTALA’s reach ends when a patient has been admitted in good faith—that is, unless the admission is just a ruse to skirt the law, and other circuit courts have agreed with that interpretation.
A CMS official said that the agency is aware of the Michigan case, and that it changes nothing for the purposes of the government’s regulatory enforcement. The implications of the opinion are purely a matter of hospitals’ exposure to private lawsuits brought under the law.
When Moses Irons brought her husband to the emergency room, he’d been vomiting and was suffering severe headaches, muscle soreness and high blood pressure, and he was hallucinating and acting in ways his wife felt were menacing toward her and her children. He was admitted and at one point, according to medical records quoted in the opinion, a psychiatrist wanted him under suicide watch and moved to the hospital’s secure psychiatric ward. Howard was discharged, however, with an internist observing that his physical symptoms had cleared and “his affect is brighter.” The lawsuit alleges that the hospital discovered in the meantime that Howard’s insurance declined to pay for the recommended treatment.
Reinstated on appeal
In the lower court, U.S. District Judge Anna Diggs Taylor tossed the case in 2007, explaining from the bench that EMTALA “was not designed or intended to establish guidelines for patient care or to provide a suit for medical negligence or malpractice,” according to a transcript. But the case was reinstated on appeal. Sixth Circuit Judge Eric Clay, writing for a three-judge panel, called the CMS rule “contrary to the plain language of the statute” and concluded that Providence “was required under EMTALA not just to admit Howard into the inpatient-care unit, but to treat him in order to stabilize him.”
The 6th Circuit then denied the hospital’s request for rehearing the case before the full appeals court, and in October, Providence petitioned the U.S. Supreme Court for review. The court has not set a date for the justices to consider whether to hear it.
The Michigan Health & Hospital Association has filed a brief with the Supreme Court urging the justices to take the case. The brief argues that the decision’s dramatic expansion of liability under the law “has significant adverse financial implications for Michigan’s community hospitals, which are already suffering from the impact of uncompensated care for the uninsured” and that other laws and regulations protect patients once they’re admitted.
“When will a patient be considered stable under this?” said Amy Barkholz, the association’s general counsel. “When have they been given appropriate treatment?” she said. Regardless of whether Howard “received appropriate care ultimately, that’s not the question. They saw the person. They obviously took his issues seriously because they admitted him.”
The Supreme Court has declined previous cases involving EMTALA questions, but the association is hopeful that this one will be different given the stark break the 6th Circuit has taken from what was considered settled law. “The odds are low but I think it’s the right kind of case for them to take up,” Barkholz said.
Although the CMS has been clear on this particular issue, the government has been engaged in an ongoing effort to refine and explain its interpretation of the law and address impressions that enforcement is slow and inconsistent across different geographic areas, which was affirmed by HHS’ inspector general’s office in a 2001 report. The auditor plans a follow-up look which was tentatively set to be published in 2011.
Not just niggling violations
An internal analysis of the data conducted by the CMS this year concludes that in all of the 10 regions the majority of complaints trigger investigations, and that variations are largely a result of complaint-driven enforcement. The most common violations—about one-third—involve patient screening, belying a common criticism that enforcers are obsessed with niggling administrative violations, the analysis concluded.
The overall number of complaints has been declining steadily over the past few years. When the CMS finds a violation, some cases are turned over to HHS’ inspector general’s office, which may choose to pursue civil monetary penalties. Those numbers have declined as well.
The Medicare Prescription Drug Improvement and Modernization Act of 2003 required that HHS convene a technical advisory group to review EMTALA regulations. Sixteen representatives for CMS regional offices, state survey agencies, hospitals, physicians and patients met seven times over the course of two years, delivering 55 recommendations and an April 2008 final report.
One of the members was Rory Jaffe, executive director of medical services for the University of California at the time. “It’s very tough to fix this because of the unintended consequences every time you change something,” said Jaffe, who is now executive director of the California Hospital Patient Safety Organization.
After Ravenswood Hospital in Chicago declined to treat a 15-year-old boy as he bled to death 35 feet from its emergency room in 1998, Jaffe recalled, the CMS revised EMTALA rules to require that hospitals be required to treat any patient who shows up with an emergency condition anywhere on its campus, construed as within 250 feet of the main buildings, and any off-campus facility of the hospital. What if a car crashes on a freeway running next to a hospital, Jaffe posed. “I think it’s sort of regulation by anecdote. There are bad cases and they say we’ve got to stop this and put in a rule.”
Most of the group’s recommendations were “hardly earth-shattering,” Jaffe said, because the members were acutely aware of the potential for unintended consequences of whatever they hatched. One recommendation, however, was adopted after a contentious debate and a close vote, with Jaffe and other hospital representatives vigorously opposing it, and it echoed the fear engendered by the Michigan case that EMTALA requirements will creep further and further beyond its initial intent.
If a hospital admits a patient suffering an emergency medical condition but doesn’t have the capabilities to stabilize the patient, then the group recommended that a hospital that does have the capabilities should be required under EMTALA to accept a transfer. The CMS proposed the change and then reversed itself in the final rule after a torrent of critical comments.
Even if EMTALA is strictly construed to end with a patient’s admission, hospitals may find themselves under fire for broader notions of patient dumping.
The Los Angeles city attorney’s office has made national headlines with its efforts in this area beginning with a civil lawsuit under the state’s unfair competition law and misdemeanor criminal charges of false imprisonment and endangerment against Kaiser Foundation Hospitals. Its hospital in suburban Bellflower, Calif., was accused of dumping patients on L.A.’s Skid Row, leading to a settlement agreement mandating discharge protocols and a $500,000 contribution toward services for the homeless and mentally ill. Two similar settlements were reached with L.A.-area hospitals in 2008.
This year, the L.A. city attorney’s office secured a settlement agreement with 157-bed College Hospital, Cerritos, and 122-bed College Hospital Costa Mesa in which the jointly owned psychiatric facilities agreed not to discharge patients within the boundaries of what the city attorney’s office drew as a “patient-safety zone.”
The office recently invited hospitals in the area to agree not to discharge mentally ill homeless patients to any shelter or on the streets within a dozen or so square miles north and south of the Los Angeles Convention Center and the intersection of Interstate 110 and the Santa Monica Freeway—and instead help the patients into transitional housing and other services. In exchange, the office hopes to offer hospitals some level of security that they won’t find themselves sued or prosecuted.
“We want to give an incentive to hospitals because we know they’re taking on new obligations,” Deputy City Attorney Carolyn Phillips said. She declined to elaborate on the offer because the details have yet to be worked out. “We’re trying to change the culture and the standard of the care, to the extent the standard of care now includes dumping,” she said.
Based on four years investigating the practice and interviewing people in shelters and on the streets, Phillips said she estimates about one-third of them say they were brought there at one time by a hospital. When they get there, she added, they’re vulnerable to being recruited for Medicare and Medicaid fraud schemes (Aug. 11, 2008, p. 6).
The Hospital Association of Southern California has rejected the overture as another overreaching tactic by the city attorney’s office, with which the association has continually butted heads.
But Phillips said the office is in discussions with several hospitals interested in making a deal. Catholic Healthcare West confirmed that its 316-bed California Hospital Medical Center in Los Angeles is working toward a memorandum of understanding with the city attorney’s office. The hospital is located smack in the middle of the zone.
The system views the possible agreement as “a natural next step in our collaboration with the city as we seek to ensure that mentally impaired homeless patients are able to receive ongoing and appropriate care once they leave our facility,” CHW’s Senior Counsel David Vukadinovich said in a prepared statement.
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