How to stop patient dumping? D.C. hearing delves into the problem

By Karoun Demirjian

Friday, March 14, 2014 | 10 p.m.

Nevada’s patient dumping scandal, which already inspired a federal court case, on Friday commanded the attention of a federal oversight panel in Washington, D.C.

The U.S. Commission on Civil Rights met for several hours Friday morning to press federal officials, advocates and academics on whether systematic problems have allowed certain patients to fall through the cracks of the mental health care system — or actively suffered harm from it.

“Should the federal government tell these hospitals as a matter of policy, no, you can’t do that, you receive federal funds, you can’t send [patients] to another jurisdiction to become someone else’s problem?” Commissioner Michael Yaki asked the panelists.

They could not agree on an answer.

“When we look at the provision of information and the failure to oversee it, the time is now,” said Staci Pratt, legal director for the Nevada ACLU, who testified before the commission.

As part of her testimony, Pratt showed a video of James Brown, a mentally ill patient the Nevada ACLU represented in an ultimately unsuccessful suit against Nevada. After being released from Rawson-Neal Psychiatric Hospital in Las Vegas, the state paid for Brown’s bus ticket to California — where he knew no one.

“His story, his suffering and the chain of events leading to his release from Rawson-Neal … is a call to action,” Pratt said. “His experience was not isolated. Greyhound bus receipts demonstrate than more than 1,000 individuals were bussed … heavily medicated on journeys that spanned several states and multiple days.”

Pratt’s position is that the federal government should move to strengthen existing statutes to ensure that hospitals better care for mental health patients, and punish those that don’t.

But Gina Greenwood, a health attorney from Georgia, saw the potential of federal intervention as a net negative.

“I truly believe that we really have to be conscious of the unintended consequences,” she told the panel.

“We have a great law called EMTALA that requires us to transfer patients. But where the heck are we going to transfer them?” Greenwood continued. “If you can address that problem, you won’t be bussing James to California anymore.”

The main law governing the transfer of mental health patients is EMTALA, or the Emergency Medical Treatment and Active Labor Act. The law dictates when patients must be transferred from emergency care, and what the obligation of recipient hospitals is to those patients.

But the application of the law “is extraordinarily complex,” said Marilyn Dahl, director of Acute Care Services at the Centers for Medicare and Medicaid Services. “It’s also something that is extraordinarily fact-dependent: You’ve seen one case — you’ve seen one case.”

CMS has been trying to focus better on the system of planning patient discharges, but that is a process that is still underway.

In the meantime, as Greenwood pointed out, financial constraints are making it difficult to ensure patients can be cared for as a practical matter.

“The main issue … it’s money,” Greenwood said.

Funding for mental health took a beating over the term of the recession, and even as some states are starting to incrementally increase funding, shortfalls in capacity remain.

In Nevada, the 190 beds at Rawson-Neal, for example, are full almost every night, according to Mike Willden, director of the Nevada Department of Health and Human Services.

The Nevada ACLU charges that money is paramount — and likely at the root of the patient dumping problem.

“Following the money is really important … there is a financial incentive to discharge the homeless, psychologically disabled people to the street,” Pratt said, citing the difference between the several hundred dollars it costs to shelter a patient and the cost of a Greyhound bus ticket.

But Willden says the money problems come from a far more problematic source: The federal government itself.

“Follow the money was the [lesson] I think was most important there,” Willden said, following the commission hearing. He had not been invited to testify as part of a panel Friday — though commission staff point out that one of Willden's division administrators, chief medical officer Tracey Green, had flatly refused an invitation to the original hearing in February. “The feds need to improve block grants to the states to help put infrastructure in.”

Currently, Willden explained, Nevada only receives about $4 million in block grants — and the strings attached to that mean that the state is hard-pressed to help non-senior adults who need psychiatric care.

The Institute for Mental Disease exclusion means that facilities with more than 16 beds that primarily provide psychiatric care cannot receive Medicaid funding for individuals aged 21 to 64.

“Federal funding is not available to the most vulnerable population that is out there,” Willden said, pointing out that not only straps state institutions — it also leaves little incentive for private institutions that might fill the need gap for care to come online.

“If you don't have federal participation, in the majority of cases, hospitals won’t build the beds,” he said.

For the most part, Willden disagreed with Pratt’s characterization that cases like James Brown ought to be a wake-up call that the Nevada mental health system — as well as others — needed a heavy dose of federal intervention. Willden said the Brown case was a situation of staff not following hospital policies — a stand Gov. Brian Sandoval has been taking since the scandal broke on the pages of the Sacramento Bee, and was seemingly backed up by the February 2014 court decision in federal district court against Brown.

But Willden backed up Pratt on one idea: Better enforcement of the laws already on the books.

Currently, enforcement of EMTALA rules only occurs if a hospital, or a patient, makes a complaint. There are no occasional audits.

“I personally agree with some random checking rather than only complain-driven,” Willden said. “I think that was a fair recommendation to make.”