According to the National Law Review, “Patient dumping refers to situations when hospitals deny emergency medical screening and stabilization services. It also refers to instances when a hospital transfers an individual to another hospital after discovering that the individual does not have insurance or a means to pay for treatment.”
Patient dumping has been impacting vulnerable populations for decades, making it difficult for many to receive healthcare. However, with EMTALA, some medical services must be provided to patients regardless of their economic status.
According to the U.S. Commission on Civil Rights report on Patient Dumping, “Historically, American law did not require hospitals to admit patients, despite sporadic legislative attempts to change this practice. In 1986, however, President Reagan signed EMTALA into law. Before the enactment of EMTALA, most hospitals enjoyed the common-law “no duty” rule, which allowed them to refuse treatment to anyone. Hospitals believed indigent patients should receive care through charitable organizations or through uncompensated care provided by hospitals.”
These practices affected vulnerable populations:
As a result, “After EMTALA, Medicare-participating hospitals must provide a medical screening exam to any individual who comes to the emergency department and requests examination or treatment for a medical condition. If a hospital determines that an individual has a medical emergency, it must then stabilize the condition or provide for an appropriate transfer. The hospital is obligated to provide these services regardless of the individual’s ability to pay and without delay to inquire about the individual’s method of payment or insurance status.”
Based on the U.S. Commission on Civil Rights report, HHS OIG and Public Citizen's Health Research Group found increases in EMTALA-related activities between 1987 and 1998, with investigations rising by 390 percent and confirmed violations increasing by 683 percent.
A study, published in JAMA Internal Medicine in 2019, reviewed over 215,000 emergency department admissions for typical pulmonary conditions (pneumonia, COPD, and asthma) in 160 U.S. hospitals that possess intensive care capability and found disparities numerous, including:
EMTALA established three core requirements for hospitals that participate in Medicare:
HIPAA's Privacy Rule placed requirements on when and how an individual patient's protected health information (PHI) can be accessed and shared. It encompasses financial information such as insurance status, payment history, and capacity to pay. By limiting how such data can be accessed during the process of triage and initial care, HIPAA creates a block between clinical decisions regarding care and financial issues to some extent.
In practice, this means:
In the abstract of Protecting Privacy to Prevent Discrimination, Jessica L. Roberts states, “A person cannot consider information that she does not have. Unlawful discrimination, therefore, frequently requires discriminators to have knowledge about protected status.”
HIPAA added documentation and records management requirements that can prevent patient dumping, including:
Complete and accurate records: HIPAA requires that healthcare providers maintain complete, accurate, and accessible medical records. This gives a precise paper record of all clinical decisions, transfers, and discharges that can later be reviewed to determine whether the treatment decisions were medically sound or financially driven.
Transfer Documentation: During transfer from one facility to another, HIPAA requires documentation including:
Audit trails: Electronic health records (EHRs) employed to meet HIPAA requirements contain extensive audit trails that identify who accessed a patient's data and when. This allows tracing the sequence of events leading to a decision to transfer or discharge.
These record requirements engender transparency and accountability that make dumping patients harder to do without detection. They also provide evidence if inappropriate transfer or discharge is suspected.
HIPAA's patient right of access can also help patients be aware of potential patient dumping:
Informed patients: If patients are able to access their own records, they become better informed about their medical conditions and care plans. This makes them aware of improper discharges or transfers.
Evidence for complaints: Medical records under HIPAA access provisions may be evidence in patient dumping complaints to regulatory agencies or in lawsuits.
Family advocacy: Patient advocates or family members, with proper authorization, can potentially view records to identify potential infractions and encourage appropriate care.
Post-discharge continuity: Access to complete records can enable transferred or discharged patients to seek adequate follow-up care, potentially preventing some of the negative impacts of early discharge.
HIPAA's administrative simplification provisions standardize electronic transactions like eligibility verification, which has two contradictory implications for patient dumping:
Potential risk: Quicker verification of insurance means hospitals can report uninsured or underinsured patients more easily, potentially making discriminatory behavior simpler.
Potential protection: Standardized procedures bring more transparency and accountability to the use of insurance information in treatment decisions. More streamlined claims processing can also eliminate financial incentives that induce patient dumping.
HIPAA and EMTALA create a complementing compliance mechanism that, when properly implemented, provides effective safeguards against patient dumping practices. Health centers must operate through both systems simultaneously:
Documentation standardization: EMTALA requires certain documentation for emergency screening, stabilization process, and transfer. HIPAA requires these documents to be thorough, accurate and well-documented. Together, they create an overall documentation standard.
Information sharing: EMTALA authorizes (and in some instances mandates) some information sharing during transfers, but HIPAA's Privacy Rule limits how that information may be shared. Both sets of requirements need to be met by facilities at the same time.
Enforcement synergy: Noncompliance with either law will initiate investigations that usually reveal noncompliance with the other. Violation of EMTALA for an inappropriate transfer, for instance, may reveal HIPAA noncompliance in the handling of the patient information transfer process.
Compounded penalties: Hospitals that are found to violate the statutes have much more severe compounded penalties, such as:
Related: The complete guide to HIPAA violations
The Rawson-Neal Psychiatric Hospital in Nevada's case, which released patients by sending them across state lines without adequate continuity of care or follow-up treatment plans, has serious implications under both the EMTALA and HIPAA.
Yes, hospitals can face separate penalties under both HIPAA and EMTALA, leading to significant financial consequences and damage to their reputation.
No, under EMTALA, a hospital cannot discharge or transfer a patient who has not been properly stabilized, even if they lack insurance or cannot pay for treatment.
HIPAA requires proper transfer documentation and patient consent, ensuring that the receiving facility has the necessary information to continue appropriate care.
Hospitals must prioritize medical treatment and stabilization first, ensure all documentation is complete and accurate, and protect patient privacy in compliance with both HIPAA and EMTALA.