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Practice Areas & Settings

Mental Health Patient Dumping in the Twenty-First Century

Edward M. O'Brien

Mental Health Patient Dumping in the Twenty-First Century
tomchat via iStock

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In 1986, Congress passed and President Reagan signed the Emergency Medical Treatment and Labor Act (EMTALA) to address the issue of “patient dumping,” whereby hospitals fail to adequately treat low-income or indigent patients in need of urgent care and instead “dump” them on other hospitals, local health organizations, or state-operated facilities. Under EMTALA, hospitals receiving federal funds must perform a medical screening upon any individual who comes to the emergency room and, if the hospital determines that an emergency medical condition exists, stabilize the condition or provide for an appropriate transfer to another facility with a higher level of care, regardless of and without inquiry into the patient’s ability to pay.

Analysis of EMTALA for the Mentally Ill

In March 2014, the U.S. Commission on Civil Rights convened a conference to analyze the enforcement of EMTALA specifically in the context of patients with mental illness, who are among the populations most vulnerable to patient dumping because of the expense and complexities of providing mental health care. Of the more than 6,000 hospitals covered by EMTALA, more than 500 are psychiatric hospitals and more than 1,600 are short-term acute-care hospitals with a psychiatric inpatient unit.

One of the triggering events for the commission’s inquiry was a federal investigation into Rawson-Neal Psychiatric Hospital in Las Vegas, Nevada, which discovered that the hospital had sent mentally ill patients to other states and cities without any plan for ensuring that they received adequate medical care upon arrival. Interestingly, the Rawson-Neal revelations initially emerged not through robust federal enforcement and oversight, but following an extensive investigation and subsequent report by The Sacramento Bee. The newspaper’s story, and others like it, pulled into sharp focus the inadequacies of federal enforcement and oversight relative to mental health patient rights and provider obligations under EMTALA.

Enforcement Issues

The conference, which brought together mental health care practitioners, advocates, regulators, and scholars, identified five major issues confronting EMTALA enforcement in the mental health care context:

  1. Lack of adequate data collection;
  2. Insufficient regulatory oversight;
  3. The absence of non-punitive methods for obtaining accurate hospital reports of patient care and outcomes;
  4. Insufficiency of resources to comply with EMTALA and adequately treat patients; and
  5. Insufficient training and education of hospitals and staff on the unique needs of mental health patients.

Commission Recommendations

Based on this dialogue, the commission developed a series of recommendations, set forth in its comprehensive September 2014 report to President Barack Obama, Vice President Joe Biden, and House Speaker John Boehner. Specifically, the recommendations focus on:

  • Identifying and implementing best practices to pinpoint mental health treatment disparities and the impact of these disparities on specific patient populations;
  • Improving regulatory oversight;
  • Collection and analysis of additional data that will enable to regulators to better identify EMTALA violations and better target scarce enforcement resources;
  • Expanding mental health services provided through community-based mental health facilities and providers;
  • Improving and increasing training for hospitals and physicians;
  • Implementing an expanded and uniform definition of “stabilization,” to both broaden and clarify provider obligations under EMTALA; and
  • Establishing uniform discharge protocols.

Some of these recommendations, such as expanded community-based services and improved regulatory oversight, will require legislative action because they require increased funding. Others could be implemented, or at least initiated, through the regulatory process. Still others could be attained, at least in part, through improved efficiencies. Changes aimed at identifying and implementing best practices, for example, depend less upon additional resources or regulatory changes and more upon better information-sharing among agencies and providers.

Impediments to Success

There is some disagreement as to where both the problems and the solutions rest. Some believe that over-regulation and exceedingly punitive enforcement measures discourage candid reporting, which in turn stifles enforcement, distorts the data, and inhibits efforts to develop best practices. Others believe that stricter enforcement measures, along with more uniformity and consistency in EMTALA-related regulations, are needed.

As is often the case, the solution probably resides somewhere in the middle. The commission’s recommendations represent a critical starting point in addressing a shamefully neglected problem. A combination of more robust, but flexible, enforcement, as well as greater standardization and uniformity, increased funding for mental health services at the federal and state levels, better data collection and analysis, and a renewed focus on both encouraging and replicating best practices can help bring America’s mental health system, at long last, into the twenty-first century.