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Discharging the homeless — Crisis in 'La-La Land'
[Editor's note: M. Steven Lipton, JD, is an attorney with the San Francisco law firm Davis Wright Tremaine. This is the first of a two-part series on the growing crisis of "dumping" homeless patients in Los Angeles. The second installment will appear in our August 2007 issue Lipton can be contacted at (415) 276-6500.]
An adult patient arrives at the ED in the middle of the night with a presenting complaint of head trauma of unknown origin, and associated pain and dizziness. The patient is examined by the emergency physician, given a head scan and treatment, monitored for several hours, and is ready for discharge with instructions for a follow-up physician visit within 24 hours.
Routine? Perhaps, except for one problem: The patient is homeless.
For many years, hospitals have faced the problem of dealing with homeless patients who frequently are not aligned with shelters or other residential facilities, have little or no access to health care services other than hospital EDs, and often are unable to understand their discharge instructions or provide the self-care necessary for post-hospital recuperation. In many communities, there are no resources for the homeless and little willingness by local politicians to fund homeless services. Many hospitals try to align homeless patients with shelters or other local resources, but these efforts are often futile or rejected by the homeless.
What does the law say?
For EDs, the laws on patient discharge requirements are sparse. The Medicare conditions for discharge plans clearly apply to inpatients and expressly do not apply to emergency patients.1 However, EDs are subject to the Medicare conditions for preparing a discharge summary, although the summary is not required to be given to the patient.2 Under the EMTALA Interpretive Guidelines, emergency patients who are discharged (as opposed to transferred or admitted) must receive a plan for appropriate follow-up, including information necessary to prevent a relapse or worsening of their medical conditions.3 State laws vary, but often do not address discharge planning for emergency patients.
During the past 18 months, hospital discharges of homeless patients in Los Angeles have resulted in investigations and enforcement actions initiated or threatened by the Los Angeles city attorney. Video cameras have captured patients delivered to Skid Row shelters and missions, some of whom were clad in hospital gowns. Pictures (including videos) of these patients have been published by the media and posted on the Internet. Several celebrated cases have been the subject of local and national news stories, with a feature piece by Anderson Cooper on 60 Minutes that was aired on May 20, 2007.
What did the investigation cover?
In December 2005, the city attorney asked several Los Angeles area hospitals to provide voluntarily information on their discharge practices. The letter alerted the hospitals of possible action for their discharge practices involving homeless patients. The specific focus of the letter involved the transport of homeless patients to Skid Row, later characterized by the city attorney as the "one of most dangerous places, not only in L.A., but in the state and the country . . ."4
The primary focus of the investigation has been three issues:
Although several cases of alleged "homeless dumping" have been widely publicized, the city attorney has indicated that as many as 55 cases are under investigation,5 although it is unclear how many cases are being actively pursued.
The lawsuit is filed
In November 2006, the city attorney filed criminal and civil changes against a Kaiser hospital in Los Angeles for the practice of homeless dumping.6 The Kaiser complaint alleged that the hospital discharged a homeless woman who was found "wandering in a daze along the dangerous streets of Skid Row wearing little more than a hospital gown, sweatshirt, and socks."6 Additional facts included that the patient was "rushed into a taxi" and dropped in front of a Skid Row mission that was unfamiliar to her and without any plan for post-hospital care.
The complaint characterized described homeless dumping as including the following elements:
The Kaiser complaint included criminal counts of false imprisonment and dependent adult endangerment, and civil complaints of unlawful and unfair business practices, including failure to follow state law on discharge planning. For the alleged violations, the complaint sought to stop the Kaiser hospital from engaging in homeless dumping activities that violate applicable law, as well as obtaining fines, costs, and other relief as permitted by law.
The investigations and litigation all point to continued pressure on hospitals for handling the discharge of homeless patients. In Part II of this saga, we will explore legislative action addressing homeless discharges as well as the outcome of the Kaiser complaint.