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Numerous laws and regulatory requirements have a bearing on hospitals' discharges of homeless patients. Following are some of the more significant examples.

Emergency Medical Treatment and Active Labor Act (EMTALA). Congress originally focused on this federal statute to ensure care for pregnant women seeking to give birth in a hospital, no matter her insurance coverage, race or citizenship. The law has been expanded to protect those seeking emergency care in most hospital settings or who are brought to emergency departments by police, fire/paramedics, and rescue personnel from being discharged or transferred prematurely. EMTALA requires a hospital to conduct a screening examination, treat any emergency medical condition or stabilize the patient, or, if necessary, transfer the patient to another facility that can provide the necessary treatment. Transfers for psychiatric evaluations and treatment for substance abuse are typically to qualified specialty institutions, and often challenging to accomplish.

Violations of EMTALA are reported to the Office of Inspector General (OIG) of Department of Health and Human Services (HHS), which investigates claims of noncompliance. There is a private right of action for patients to enforce their EMTALA rights. In addition, EMTALA violations may form the basis for tort liability suits for negligence or predicate offenses in state civil law enforcement actions. EMTALA violations are a significant exposure issue for hospitals.

Anti-Kickback and False Claims Act. Hospitals that fail to discharge appropriately face potential exposure under federal and state healthcare fraud and abuse statute. Because homeless Medicare beneficiaries are often chronically ill, multisymptomatic, and mentally disabled, they are used as participants in fraud schemes. If those patients are improperly discharged, they may be used again in multiple readmissions for a price. Once admitted, the hospital may submit claims for "behavioral health" patients for treatment of their physical symptoms, while never addressing the mental illnesses and addictions that keep them in the admission-cycle.

The most notable case of fraud involving the homeless is People v. Pacific Health Corporation, et al. The Los Angeles city attorney alleged that patients were paid in return for being transported to the hospital and then discharged back to Skid Row so that they would never get well and eventually return to the hospital. Claims for payment are alleged to have been filed as a result of kickbacks having been paid to admit the patients for whom the care was rendered. The U.S. Attorneys' Office has filed more than seven indictments in the matter.

Conditions of participation (COP). The COP govern the care of patients for Medicare and Medicaid programs. Violations of the COP can arise if a hospital discharges patients prematurely or knowing that the patient being discharged has no home or place to follow his or her discharge plan. For example, within both the Medicare COP and the California COP, the discharge planning process is mandated. In California, the discharge planning process includes a requirement that the hospital must ensure that adequate arrangements for posthospital care-including care at home, skilled care, or intermediate care-are provided to each patient.

Healthcare reform requirements. The Affordable Care Act also provides for a tougher discharge planning standard for the future. Even if a hospital complies with current COPs today, the Affordable care Act requirements go further. Beginning Jan. 1, 2015, qualified insurers that offer a plan through a state exchange can contract with hospitals having more than 50 beds only if the hospital has implemented a mechanism to ensure that each patient receives a comprehensive program for hospital discharge that includes patient-centered education and counseling, comprehensive discharge planning, and postdischarge reinforcement by an appropriate healthcare professional.

IRS community health needs assessment. As part of the focus of Congress and the IRS on the tax-exempt status of hospitals, the tax reporting requirements now include a requirement of not-for-profit hospitals to prepare a document called a community health needs assessment every three years. This assessment requires input from "community members," a term that is broadly defined, to help identify the health "needs" of that community. To the extent that the homeless constitute a part of the service area of the hospital, the needs assessment must describe what the organization is doing to meet those needs and how it intends to implement programs or actions to alleviate the health problems of the community served. The homeless patients in a hospital's community need to be included in the health needs assessment prepared for the IRS. Possible measures a hospital might undertake in its implementation plan include stronger discharge procedures and the development of a communitywide respite care program to reduce chronic readmissions for this group. 

For more information, see Henry Fader and Carolyn Phillips's "Frequent-User Patients: Reducing Costs While Making Appropriate Discharges," hfm, March 2012

Publication Date: Thursday, March 01, 2012

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