By law, emergency rooms must ensure that individuals receive appropriate care regardless of their ability to pay when coming into the ER. But new reporting from ProPublica shows that more than 90 psychiatric hospitals, including one in Oregon, are turning away or discharging patients too early and are breaking this law. Eli Cahan is a pediatrician and investigative journalist. He joins us to share more.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Under federal law, hospitals have to ensure that people receive appropriate care in their emergency rooms regardless of their ability to pay. But new reporting from ProPublica has found that over the last 15 years more than 90 psychiatric hospitals, including one in Oregon, have been unlawfully turning away patients or discharging them too early. Eli Cahan wrote about this. He is a pediatrician and investigative journalist. He joins us now. It’s good to have you on Think Out Loud.
Eli Cahan: Hi, Dave, thanks for having me.
Miller: You started your article by talking about a 21-year-old man in Colorado with a history of serious mental illness and his mother, Melissa Keel. Do you mind telling us their story?
Cahan: Melissa Keel and her son are really representative, we thought, of a much bigger story that… Frankly, none of these stories are short, and none of them are straightforward. Melissa and her son had been dealing with years of brewing, worsening mental illness, including, on the heels of the pandemic, a really brutal suicide attempt off a highway.
When, in 2022, her son [was] within the throes of a mental health crisis, and they sought care from a facility. What had happened was that a few bystanders in the desert had come across her son, I’m sorry, in May 2023. And he was really in dire straits out in the desert, wasn’t wearing clothes, didn’t appear to be able to take care of himself, anything like that.
She rushes out there to try to meet him, to find him, and she brings him to the place that they know where to go, which is the psychiatric hospital in Grand Junction, Colorado. It’s called West Springs Hospital. And when they get to West Springs, Melissa says she informs the staff there about a long saga that he’s had with mental illness, lots of ups and downs.
She informed them, she says, about his history of self harm, and basically he gets a little bit of an assessment that raises, perhaps some red flags, depending on how you read the documentation, and then ultimately, is discharged.
That, at the time, confused Melissa because obviously she has seen her son in his ups and downs, and she thought he was in pretty dire straits, which is why she brought him in, rather than trying to deal with it herself. Pretty quickly, he ends up going home, living with a romantic partner at the time. And pretty quickly he sneaks out of the house when the romantic partner isn’t looking, presumably still under this veil of acute mental illness, gets himself in trouble again, gets brought to a separate emergency room – this time by by police, in part – and ultimately gets admitted at a hospital in Denver, more than three hours to the east of Grand Junction, where he stays for two weeks.
This story, like so many other stories, was a story of somebody with a long history of mental illness in the throes of a crisis who didn’t get the care they need in ways that, as we’ll talk about later, seem out of keeping with federal laws meant to prevent this exact thing from happening.
Miller: What is this federal law? What is… it’s known by the acronym EMTALA. It stands for the Emergency Medical Treatment and Labor Act. What does it say?
Cahan: This law comes about in an era of hospitals really cherry picking their patients. I mean, this is an era in the 1980’s where hospitals are saying patients with certain insurance or lack of insurance altogether are getting diverted by ambulances from the bougie, nice hospitals in town to the public hospitals. And lots of hospitals are just being selective about who they treat, including on the basis of their ability to pay – slash – the relative profitability they may have for the hospital. So this law comes about really to prevent hospitals from doing this cherry picking.
And in the modern era of American healthcare, an era where I think a lot of us have a lot of strong feelings about what American healthcare does, and perhaps too often doesn’t do for us. The universal promise is that if you are in an emergency or you perceive yourself to need healthcare in that moment, you can go to the emergency room and the emergency room will take a look at you and treat you if you need treatment and if they have capacity to do so.
That is what the law seeks to ensure, and that’s what we found maybe is not happening at psychiatric hospitals across the country.
Miller: And just to be clear, under federal law, it doesn’t discriminate in terms of a physical health emergency and a mental health emergency. They both have to be covered.
Cahan: They both have to be covered. There’s some provisions in the law, which is probably a little bit wonkier than your listeners need to know, that basically determine whether a hospital has “capacity or capability to treat a certain population.” But suffice to say that if you’re a psychiatric hospital, you are required to treat mental health crises.
In fact, there was a clarification that the Centers for Medicare and Medicaid put out in July of 2019 to that effect, to basically reinforce to the psychiatric hospitals that yes, you guys are beholden under this law. And that includes if you don’t have a physical, literal emergency room in the traditional way that we might think about or we might see in The Pitt on Netflix… Or HBO? I don’t know what it’s on.
Miller: On HBO Max, yeah.
Cahan: Yeah, it’s streamable. Anyway, even if you don’t have one of those Hollywood emergency rooms, you are still beholden under this law if someone comes to your door and you meet certain classification requirements. That you have to take a look at that person, and if you’re able to treat them, you have to treat them.
Miller: The case that we started with, that you started your story with – Melissa Keel and her son – that did not end fatally. But you note that sometimes the results of someone not getting the care they need can be fatal. That was the case in Tennessee. Can you tell us about the Swearingens?
Cahan: Yeah, this is a really unfortunate case that we came across, came about in February 2017. Tom Swearingen is somebody who also had dealt with apparently years of mental illness, and eventually in the throes of what sound like some pretty difficult life circumstances at that time, he seeks care by going in person with his wife at the time – whose name is Margaret – to Lakeside Behavioral, which is a hospital in Louisiana.
And he, based on the notes, is making some statements that are really concerning in terms of both where his mental health was at the time, as well as certain behaviors that he had been using to try to cope, including alcohol use. And there is some commentary in the documentation about certain interactions between him and his wife that the clinicians note were concerning. And in this case, unlike the case of the Keels, he gets a proper, comprehensive assessment.
So they do the assessment, and in fact the assessment notes some red flags, based on any objective clinical criteria. And yet, in the documentation, it says that ultimately he ends up being turned away on the basis of his insurance status. Unfortunately, this story doesn’t end with him eventually getting to a hospital where he can get care. Unfortunately, pretty soon after he is discharged, it sounds like his mental illness gets to such a severe extent that he winds up taking the life of his wife, Margaret, as well as his own life in a murder-suicide.
Miller: You collected data about the number of EMTALA – Emergency Medical Treatment and Labor Act – violations at psychiatric hospitals since 2019, and near the top of the list with six violations was Portland’s Cedar Hills Hospital. What can you tell us about what federal regulators found there?
Cahan: Cedar Hills is a hospital in Portland that does comprehensive behavioral health care. And what we found is since 2010, there have been 10 violations at Cedar Hills. Since the 2019 clarification – which basically, again, said to hospitals, “Hey, you have to provide this kind of care” – around that time, they had six additional violations.
And the violations that happened at Cedar Hills fall into all the same categories we’re talking about based on the documentation. They say that they turned away patients who other hospitals had tried to transfer to Cedar Hills for reasons that are not immediately clear. They declined to take these transfers, and Centers for Medicare and Medicaid in their documentation note that that is out of keeping in the law. It’s not totally clear what all the circumstances are, but it was severe enough that the Centers for Medicare and Medicaid Services issues citation.
They also did not provide medical screening examinations, so they didn’t do a fundamental assessment of patients, it appears, in some order of patients – at least several – based on the documentation.
Miller: I should say we did reach out this morning to UHS, the owner of Cedar Cedar Hills Hospital. We have not yet heard back.
What kinds of penalties can hospitals face if federal regulators find that they have broken this law?
Cahan: Yeah, it’s a good question, Dave. It’s something we spent a lot of time trying to understand, and I would try to walk through it in the most basic way that I know how, which is not going to be that basic because as with many things, federal enforcement systems are complicated.
But fundamentally, the way the system works is that if someone suspects they may not have received the care that they are entitled to under the law – presuming they know what the law is, which many people may not, but now your listeners do – assuming there’s some concern that there may have been a violation, those reports bubble up to Centers for Medicare and Medicaid.
We’re still trying to figure out the procedure in which Centers for Medicare and Medicaid processes and evaluates those reports, but certainly in a subset of those reports, Centers for Medicare and Medicaid will dispatch an investigative team to look at the circumstances around that event. If they find that the circumstances would meet criteria for an EMTALA violation, they have a couple of choices, the most severe of which is to suspend the hospital from taking Medicare and Medicaid dollars altogether.
Miller: Just to be clear, that seems like a kind of nuclear option, right? I mean, it’s a way to cut off an enormously important pipeline of federal dollars to a health system.
Cahan: Absolutely, that is the nuclear option, which is why we really did not see CMS ever taking that option. Of course you get into a much bigger conversation about how much hospitals rely on those dollars amid the pending federal changes, but we will postpone that discussion for today.
So, CMS could suspend them altogether. The next less nuclear option, but still quite severe, is they could put the hospital on what’s called immediate jeopardy, which is a little bit like animal house double-secret probation. You have to get your act together, you have to fill some requirements. We are using this language because we think it’s severe, but functionally there’s no penalties that hospitals face at that time.
The third thing that can happen is that CMS really doesn’t impose any specific enforcement action on the hospital other than the basic requirements, which are that the hospital basically writes on the chalkboard what they’re going to do better next time. It’s called a plan of correction. And what we found was that these plans of correction, well-meaning certainly, in a variety of these cases, it makes you wonder whether the plan of correction is in keeping with the violation.
For example, we found that some of these plans of corrections consist of hospitals saying that they’re going to add a couple slides in a slideshow that new employees have to do, and it makes you wonder whether that’s going to make any kind of difference. But that’s one thing that CMS requires of all these hospitals.
Then what happens is CMS refers that case to the offices of the Inspector General at Department of Health and Human Services and the OIG – Office of Inspector General – has the authority that they can impose fines on these hospitals. However, what we found is that in the vast majority of these cases, no fine was ever processed or enforced by OIG.
And even when OIG did fine these hospitals, first of all, as you said, many of these hospitals increasingly are owned by for-profits, which we can get into. These are multi-billion dollar companies. UHS is a $16 billion company. These fines are like spit in the ocean compared to the market value, on the order of tens of thousands if not hundred thousand dollars, compared to $16 billion. That’s not much of a deterrent, our sources tell us.
The second thing we found is that often in these cases, OIG may have authority to fine the hospital up to say, I call it $250,000, and they only fine the hospital a hundred-something thousand dollars. And it was not immediately clear to us why OIG was not even taking the opportunity to fine these hospitals in full when they were fining these hospitals, but that’s what we found.
Miller: Do you have a theory as to why? And also – bad way to ask a question – but I’m going to run a possible theory by you because I’d like to get your take on it. Is it possible that federal regulators have been wary of actually penalizing these hospitals with real financial penalties because the mental health safety net is already porous, already has holes, and they don’t want to introduce more holes in it? Or is it not that thought out?
Cahan: It’s a good question. It’s a question we’re asking. I have to say I wouldn’t want to speculate on it, which I know is no fun, but I wouldn’t want to speculate on it because we are trying to get those answers and we don’t have them yet.
What I can say to the latter part of your question is certainly there’s a lot of concern that any enforcement action could risk closure or serious changes in the amount of people that a given hospital could treat. And in a context where, as you say, the mental health safety net is very, very far from being a comprehensive net, certain parties have raised concerns that enforcement actions or anything that would impose additional burden on these hospitals could risk closure.
Whether that’s valid in a world where you have multi-billion dollar companies having to pay an extra $100,000 or something like that to try to settle federal laws, I don’t know if that’s really a valid argument that that would break the camel’s back on these hospitals, but I certainly know that it’s something that the industry has raised as a concern.
Miller: Am I right that, even though for-profits are still a slight minority of psychiatric hospital providers in the country – I think there’s about 40% you report as of 2021 – you also reported that of the 90 or so hospitals across the country that violated this federal law in the last 15 years, 80% of them were owned by for-profit corporations.
So do I, combining those two stats, am I right to say that even if for-profits are the minority of psychiatric providers, they do account for the vast majority of these infractions?
Cahan: Yeah, that’s true. And that is… If for-profits accounted for 40% of hospitals and they only accounted for 30% of violations, then that would suggest that they are providing care more in keeping with the law. The fact that these violations, the for-profits appear to be punching above their weight in terms of what you would expect, is concerning to say the least, in terms of why these violations appear to be happening at, I think it safe to say, more than double the frequency you would expect at these hospitals.
Because there were four in 10 psychiatric beds now owned by for-profits, according to data that we got from Morgan Shields, a researcher at Washington University in St. Louis. In 2010, about 13% – one-three – of those beds. So when you look at a stat like 80%, you say, “Man, that is a lot more violations than they currently occupy beds,” and the most conservative estimate would be those are double the violations of beds, but it’s possible that it’s more because those violations have been happening since 2010, not just this year.
Miller: You know, you mentioned the enormous Medicaid questions coming and said that’s an issue for a future conversation, which is largely true, but I do want to ask you about it before we say goodbye, because one of the big issues at the heart of this is insurance. Hospitals turning away patients, it seems, because they don’t want to provide care that they’re not going to get reimbursed for. And patients in dire need, I should say again.
Because of the Affordable Care Act, the percentage of uninsured Americans right now is basically around an all-time low, but this is… Unless something changes, that number is going to change itself. There’s going to be a lot more uninsured people when they can’t afford the premium hikes that are coming, and plenty of people who get insured through Medicaid are going to lose their coverage because of the new red tape of work requirements a couple times a year. What is all of that going to mean for access to psychiatric care?
Cahan: Yeah, it’s a really important question. I think it’s probably true of most safety-net care, but I think one way to think about this is the conversation about tips in restaurants. I think everybody agrees, who knows somebody or has ever heard how much folks in restaurants, wait staff, are working for, would argue that they should get paid more.
So when we talk about Medicaid, the hospitals will always say, “Well, you know, Medicaid isn’t paying us enough.” Like, the rates need to be higher for us to sustain this business. However, if you then take it to a scenario where all wait staff in the country are working for free, you probably would see a lot of people resigning.
And so in the same way, even though we all agree that Medicaid reimbursement rates are certainly lower than other insurance plans and the industry certainly believes that Medicaid reimbursement should be higher. There’s no doubt that the extra, I don’t know, call it three to eight dollars an hour, is a fundamental foundation of reimbursement that many hospitals, especially those caring for people with less resources, including people with serious mental illness who are on Medicaid, rely on.
There’s a lot of concern that removing that pool of funding means not that people won’t get sick anymore, but that the same people will get sick or perhaps they’ll even get sick more frequently because they won’t have access to preventive care. And in those situations, hospitals that used to be getting paid a little but potentially not enough, are now going to get paid nothing for those patients, while still needing to provide the care in order to comply with federal law. And all of that leads to a bad situation for patients and potentially quite a bad situation for hospitals.
Miller: Eli, thanks very much.
Cahan: Thanks so much, Dave.
Miller: Eli Cahan is a pediatrician and investigative journalist. We did get a statement from UHS, the owner of Cedar Hills Hospital that we mentioned earlier. It reads in part:
“While we strive for 100% compliance with EMTALA and all laws and regulations, occasional deviations do occur. EMTALA survey citations are not uncommon for all hospitals and are often related to the technical and complex nature of the law and its implementing regulations as well as subjective interpretations of EMTALA requirements by regulators relating to clinical evaluations and decisions of healthcare providers.
Further, as the largest inpatient Behavioral Health provider treating the largest number of patients during this time period, it would not be unexpected that UHS facilities would have EMTALA citations when compared to other behavioral health facilities.”
They finish: “As we strive for continuous improvement, UHS, as the parent company and its subsidiaries/facilities individually, value the feedback from stakeholders, including regulators. Each subsidiary facility is in good standing with respective regulators and takes their feedback seriously. Any alleged deficiencies are investigated and when warranted, adjustments are made to processes, procedures, and/or training.”
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