Guest Column

Tough new CA legislation targets 'homeless dumping'

[Editor's note: M. Steven Lipton, JD, is an attorney with the San Francisco law firm Davis Wright. This is the second of a two-part series on the growing crisis of dumping homeless patients. Last month, we explored the California law on discharge planning and the investigation by the Los Angeles city attorney of hospital discharges of homeless patients in that city. That investigation culminated in criminal and civil charges against a Kaiser hospital in November 2006. In Part II, we explore the remedies pursued by the city attorney and the legislature to curtail "homeless dumping." Lipton can be contacted at Suite 600, One Embarcadero Center, San Francisco, CA 94111-3611. Phone: (415) 276-6500.]

The investigations over "homeless dumping" spread to the California legislative arena in 2006 with a bill that prohibits hospitals from transporting a homeless patient across county lines in the absence of consent from a receiving shelter. The California State Legislature also directed the regional hospital associations to hold meetings with stakeholders (hospitals, local governments, shelters, providers, and community organizations) to develop recommendations for post-hospital transition of homeless patients.

The recommendations of the regional hospital associations will be reported to the California State Legislature in January 2008.1

In February 2007, state legislation sponsored by the Los Angeles city attorney was introduced to prohibit hospitals from causing the transport of any patient, other than an interfacility transfer, to a location other than his/her own residence in the absence of the patient's informed consent.2 The draft legislation as introduced proposed that violations by hospitals and discharge personnel responsible for the transport were a misdemeanor and subject to fines of up to $10,000 and possible imprisonment.3 At press time, the legislation exemplifies the adage about the making of sausages and the law: You wouldn't want to watch either being made. Here is now the legislation has evolved:

  • Although the 2006 legislation defined "homeless patients" as individuals who lack a fixed and regular nighttime residence or who live in shelters or nonhabitable accommodations, (Senate Bill 275) applies to all patients (except interfacility transfers) if a hospital arranges the transportation to a location other than the primary residence.
  • The "informed consent" standard proposed in the first draft was amended to require that hospitals must obtain the patient's "clearly and explicitly manifested consent, knowingly and intelligently given without duress and coercion." The same standard applied in California for consent by involuntary behavioral health patients for psychosurgery and electro-convulsive therapy.
  • Sanctions provisions in the proposed legislation were replaced with a "three strikes" approach: an administrative sanction of up to $100,000 upon a first violation; a civil penalty of up to $250,000 upon a second violation; and a misdemeanor penalty of up to $500,000 upon a third violation. In addition, cities and counties are authorized to adopt local ordinances authorizing inspections or investigations, or implementing and enforcing restrictions on patient transport.

The settlement

While SB 275 was pending action, Kaiser signed a settlement agreement with the Los Angeles city attorney that includes a training program for hospital staff and a discharge protocol for homeless patients (including emergency patients). The discharge protocol will be monitored by a retired federal judge who must approve the training program, review quarterly certifications of compliance, and recommend contempt actions for any violations of the agreement.

Under the discharge protocol, Kaiser's Los Angeles County hospitals must follow the following practices with respect to homeless patients:

  • record all homeless patients on a homeless patient log;
  • provide appropriate clothing at the time of discharge;
  • assess patient "cognitive intactness," including living conditions and support systems; complexity of the discharge plan; orientation to person, time, and place; ability to provide self-care; and access to medical care, food, and shelter;
  • perform a needs assessment, including food and shelter, treatment for substance abuse or domestic violence, vocational assistance, Medicaid enrollment, and eligibility for other public services;
  • establish discharge plans that meet patient medical and social needs, with appropriate referrals, and help with eligibility for Kaiser's financial assistance program to obtain drugs or equipment;
  • for a post-discharge referral to a shelter, locate available options, ensure that the patient meets the shelter's criteria for acceptance, and document the consent of the patient and shelter to the placement;
  • for a patient seeking transport to a "Skid Row" shelter, the hospital administrator (or designee) must approve the discharge plan.

Kaiser agreed to implement an inservice program for physician, clinical, social service, discharge planning, and other staff involved in the care and discharge of homeless patients. The training program includes the requirements of the discharge protocol; homelessness in Los Angeles County; problems faced by homeless patients; assessment of cognitive intactness; post-discharge issues; communication with homeless patients; location of shelters and services for the homeless; referral sources; the hazards of Skid Row; and the use of surrogate decision makers for homeless patients.4

What's next?

On June 26, 2007, the city attorney filed civil charges against two more hospitals (and a patient van service operator) seeking civil penalties and injunctive relief under California's Unfair Competition Law in connection with their respective discharge planning procedures for homeless patients. Both cases allege two instances where each hospital initiated the transport of homeless patients to Skid Row without proper discharge planning or acceptance by a shelter.5

Representatives of Skid Row shelters testified on July 3 before the State Assembly Committee on Public Safety that despite the Kaiser settlement and the pending action on SB 275, hospitals still are transporting homeless patients to Skid Row without prior coordination with homeless shelters and service providers. Despite its limitations, SB 275 has been approved by five legislative committees. However, the final language of the bill and the likelihood that Gov. Schwarzenegger will sign the legislation are uncertain.

The continuing complaints from Skid Row providers and the Los Angeles city attorney, the new lawsuits, the pending legislation, and the Kaiser settlement all point to continued pressure on hospitals throughout California, and especially in southern California, to exercise greater care in the discharge of homeless inpatients and emergency patients. Representatives of the California Hospital Association have argued that the lack of resources for the homeless has resulted in longer lengths of hospital stays for homeless patients, thereby creating bed shortages and longer ED waiting times.6 The unintended consequences of SB 275 (if enacted) and the continuing threat of lawsuits could only make the situation worse: more delays in service and possible curtailment by hospitals of courtesy patient transportation services.

In the end, the underlying issues of homelessness and lack of resources will continue to be unresolved, and the complaints, investigations, and lawsuits over alleged homeless dumping will continue in the public spotlight.

References

  1. Chapter 794, Cal. Statutes of 2006, § 1.
  2. Senate Bill 275, at § 1, 2007 Cal. Legislative Session, as introduced Feb. 15, 2007.
  3. Id.; the May 2, 2007, amendments eliminated the sanctions against discharge planning personnel.
  4. On May 21, 2007, the Los Angeles Times reported that Hollywood Presbyterian Hospital, which has been under investigation by the city attorney for an alleged dumping of a homeless patient on Skid Row, voluntarily agreed to comply with the Kaiser discharge protocol.
  5. People v. CHA Hollywood Medical Center d/b/a Hollywood Presbyterian Medical Center, Case No. B373298; filed June 26, 2007; People v. Methodist Hospital of Southern California, Case No. BC373297; filed June 26, 2007.
  6. California Hospital Association (CHA) opposition letter to SB 275, quoted in the Committee on Public Safety Analysis of SB 275, pp. 15-16 (July 3, 2007); the CHA letter indicates that homeless patients on average spend four days longer in a hospital than comparable patients due to the lack of community services for post-hospital care.