'Patient dumping' charges in Los Angeles call attention to care of homeless

Los Angeles hospital accused, but most hospitals face same dilemma

A Los Angeles hospital is under fire for what critics call "patient dumping" after local media aired footage of a homeless woman who had been treated and then dropped off at a shelter in the downtown area known as Skid Row, where she wandered aimlessly on the sidewalk in a hospital gown. Though the issues involved are far more complex than the local media portray, legal experts and hospital administrators agree that there are lessons for risk managers.

The first lesson: Never send a patient out onto the street in a hospital gown or without shoes. Beyond that, the solutions are more challenging, starting with a commitment to helping indigent patients find help after treatment and ending with an effort to make your work in that regard visible to the community.

The California incident is focusing attention on a problem that has long vexed risk managers: What to do with patients who have been treated and are ready for discharge, but who have nowhere to go or refuse to go. That was the genesis of the incident in Los Angeles, in which staff at Kaiser Permanente hospital put a 63-year-old woman into a taxi and had her dropped off outside a shelter downtown. The woman was wearing only a hospital gown and socks and appeared disoriented in the news footage.

The office of the Los Angeles district attorney has issued statements confirming that it is investigating the incident but calls to the office from Healthcare Risk Management were not returned. Kaiser Permanente spokesman Jim Anderson tells HRM that the hospital staff violated policy by discharging the woman in a hospital gown. The hospital also is investigating whether the woman was delivered to the shelter in an appropriate manner.

"Putting someone in a taxicab in a hospital gown is a violation of our policy. That simply shouldn't have happened," he says.

Soon after the controversy erupted, the hospital issued a statement offering "our deepest apologies to our patient and to the community. Our handling of this case violated our own standards and practices and is contrary to our mission and values. This should not have happened. We are extremely upset that it did. We will take appropriate steps to make sure it does not happen again." The statement went on to say that the hospital routinely helps homeless patients gain access to the resources they need — food, shelter, services — as part of the discharge process.

The controversy in Los Angeles also may be fueled by longstanding debates regarding funding for indigent care, the homeless problem, and other social issues, plus infighting among different agencies about how to solve those problems.

Avoid appearance of not caring

Adrienne E. Marting, JD, a health care practice attorney with Powell Goldstein in Atlanta, says while she sympathizes with hospitals that struggle with appropriate discharge for homeless patients, the Kaiser facility made a crucial error when it discharged the patient in a hospital gown. Any hospital that leaves a patient in a hospital gown out on the street is vulnerable to claims of patient abandonment, Emergency Medical Treatment and Labor Act (EMTALA) violations, or at the very least, violations of the Medicare Conditions of Participation pertaining to discharge planning, she says.

The incident speaks as much about the need for more homeless shelters as anything else, Marting notes. "Many hospitals are under incredible financial stress and simply cannot afford to house medically stable patients just because they have nowhere else to go," she says. "Hospital risk managers should develop referral agreements with homeless shelters, nursing homes, drug and mental health facilities to ensure the proper disposition of patients who are stable for discharge."

That advice is seconded by Linda Stimmel, JD, partner and co-founder of Stewart Stimmel in Dallas and Mary Jean Geroulo, JD, an attorney with the firm who previously was a hospital administrator for 10 years and dealt with this difficult issue. They both say risk managers should review policies and procedures to make sure they adequately address the needs of homeless patients, but they also acknowledge that hospitals can be caught in a no-win situation.

Stimmel says it is a common problem for hospital administrators to have homeless patients who have nowhere to go, but even more difficult is the patient who refuses to leave even when you have a shelter or other facility.

"I've had clients facing this, and my first advice is to document every step you take to help that person, every single thing you do," she says. Show all the diligent work you've done to help this person and the competency exams to show that they can understand what you're telling them, Stimmel says. "We have advised clients to escort patients out of the hospital and put them in a cab, and to pay the cab fare to a homeless shelter where you've arranged for them to stay," she says.

Effort required by Medicare COP

Geroulo points out that helping homeless patients with discharge is more than just a good, caring thing to do. Hospitals are obligated under the Medicare Conditions of Participation to assess every patient regarding what follow-up care and discharge planning is needed. It is not sufficient to simply inform the patient about the need for follow-up care; the hospital must assess what resources are available to the patient and assist with obtaining the necessary help.

"If they don't meet that obligation, they can be found out of compliance with that condition of participation and Medicare will force them to put changes into their system to show they are complying," Geroulo says. "But if the staff does everything they're supposed to do and the patient is competent but refuses to leave, then the hospital may have no other option but to discharge the patient against the patient's will. That may be anything from putting him in a cab and sending him to the shelter or assisting her with a bus pass so she can go wherever she chooses to go."

The key for risk managers, in determining where your obligation and potential liability ends, is whether you have met that Medicare Condition of Participation, Geroulo says. Once you have met that requirement, then the question becomes exactly how you get the person out of your facility. Geroulo says in her years as a hospital administrator, she saw instances in which patients reluctant to be discharged had to be escorted off the premises by security — an unfortunate but necessary step.

She notes that though the issue can be difficult to resolve, ultimately the hospital does not have an obligation to make people who were homeless when they entered the facility not homeless when they leave. There is nothing wrong with sending a patient to a homeless shelter after treatment, Stimmel and Geroulo say.

Though tough love sometimes is warranted, Stimmel and Geroulo agree with other observers about the Los Angeles hospital's key mistake, emphasizing that they would never approve of a homeless patient being sent out in a hospital gown. Even if the patient flatly refused to change clothes, she should have been sent with something to put on when she chose.

"The hospitals I represent would go buy a set of clothes, use some from the donated clothes bin, anything to get some real clothes on that person before they go out on the street," she says. Spend-ing a few dollars on a shirt and pants is worth it, if necessary, Stimmel says. "What the Los Angeles hospital did was silly," she says. "It was asking for trouble and bad publicity."

Sources

For more information on appropriate discharge of homeless patients, contact:

  • Jim Anderson, Kaiser Permanente Southern California News Bureau, 1526 N. Edgemont St., Los Angeles, CA 90027. Telephone: (626) 405-5534. E-mail: jim.h.anderson@kp.org.
  • Mary Jean Geroulo, JD, Stewart Stimmel, 1701 N. Market St., Suite 318, L.B. 18, Dallas, TX 75202. Telephone: (214) 615-2012. E-mail: maryjean@stewartstimmel.com.
  • Adrienne E. Marting, JD, Powell Goldstein, One Atlantic Center, 14th Floor, 1201 W. Peachtree St. N.W., Atlanta, GA 30309-3488. Telephone: (404) 572-4517. E-mail: amarting@pogolaw.com.
  • Linda Stimmel, JD, Stewart Stimmel, 1701 N. Market St., Suite 318, L.B. 18, Dallas, TX 75202. Telephone: (214) 752-2648. E-mail: linda@stewartstimmel.com.