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Volokh Conspiracy

California Legislature Tries to Stop "Patient Dumping"

Will the new law have the unintended consequence of accelerating the trend toward hospitals' closing down their emergency rooms?


Here's an interesting problem. The California Legislature is trying to do something about what it calls "patient dumping." By that it means the hospital practice of discharging non-paying homeless patients out into the world without any means to take care of themselves. As far as I know the bill hasn't yet been signed by the Governor.

The Business Journal described the bill this way:

Under SB 1152, hospitals are required to include a written homeless patient discharge planning policy and process, and discharge them to a safe and appropriate location. Hospitals are further required to develop a written plan for coordinating services and referrals for homeless patients with the county behavioral health agency, health care and social services agencies in the region, health care providers, and nonprofit social services providers to assist with ensuring the appropriate homeless patient discharge.

SB 1152 would also require the hospital to ensure that certain conditions are met as part of the discharge process of a homeless patient. These include offering the patient a meal, appropriate vaccinations and infectious disease screenings, weather-appropriate clothing, transportation to the discharge destination and providing necessary medication if the hospital has a retail pharmacy.

The bill is being sponsored by the California Pan-Ethnic Health Network (CPEHN) and Service Employees International Union (SEIU) California.

I suspect California is going to run into the same problems the federal government discovered with the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), a well-meaning but not very well thought out statute requiring federally funded hospitals with emergency rooms to take in uninsured patients with medical emergencies and treat them until they become "stable." EMTALA provides no funding for this purpose. It is an unfunded mandate, so hospitals have every incentive to "dump" these patients at their earliest opportunity. The California proposal is, in part, a response to the incentives created by EMTALA.

But here's the catch with EMTALA: When the government imposed this unfunded mandate on a the healthcare industry, a work around was likely evolve. And it did. EMTALA applies only to hospitals with emergency rooms. The number of hospital emergency rooms that have been closed since EMTALA's passage is quite alarming (and I am not the first person to use the term "alarming" in this context).

This is from p. 16 of my Statement on Patient Dumping for the Commission on Civil Rights report on the subject from a few years ago:

From 1990 to 2009, the number of hospital emergency rooms outside rural areas declined from 2446 to 1779, with 1041 emergency rooms closing their doors (including some closing along with their hospitals) and 374 hospitals opening emergency rooms. Hospitals that provided a much higher than average level of medical care to uninsured, Medicaid, and other vulnerable patients were more likely to close their emergency rooms than those that did not. Similarly, hospitals with lower than average profit margins were more likely to close their emergency rooms. And for-profit status (as opposed to not-for-profit or government status) was also positively correlated with emergency room closure. All three of these factors are consistent with the conclusion that EMTALA has contributed substantially to the problem of emergency room closure, perhaps even being the predominant factor.

The rise of urgent care centers (which allows medical providers to sidestep EMTALA) parallels the decline of emergency rooms. The problem is that they are equipped for small emergencies, not big ones. They are thus a poor substitute for emergency rooms.

I don't pretend to have the answer to the country's healthcare issues. Patient dumping is a genune issue. But might the California law simply accelerate the decline of emergency rooms? And might it cause hospitals to resist admitting homeless patients in the first place?