Recently, the United States Commission on Civil Rights released its annual 2014 enforcement report (also available here),  which examines the enforcement of the Emergency Medical Treatment and Labor Act (“EMTALA”) with regard to “patient dumping” – or the alleged practice of some hospitals that involves release of emergency room patients with psychiatric conditions before these conditions can be fully treated. Among the report’s recommendations are increased regulatory oversight over hospitals, new data collections to identify potential violations, and change to the legal definition of “stabiliziation” that would have the likely effect of requiring hospitals to keep psychiatric emergency room patients longer.

But does the evidence presented in the report really demonstrate wrongful discrimination against the disabled? And if it does, do the report’s recommendations identify the best solution?

In dissent, Commissioner Gail Heriot suggests that the answer to the first question is no and that, given the lack of clear evidence of a problem, the report’s recommendations may be seriously misguided.

To summarize key sections of the Heriot dissent: the problem (if there is one) should not be conceptualized as disability discrimination. Ordinarily, claims of disability discrimination arise in situations in which a person with a disability claims that he should have been treated the same as a similarly situated person without a disability. Imagine, for example, a newly minted attorney who was first in his class and editor-in-chief of the law review at the best law school in his city—and who uses a wheelchair to get around. This young attorney is shocked to discover when he learns that he has not received an employment offer from his city’s most prominent law firm because of his wheelchair use, even though this firm has hired graduates with academic credentials much like his in the past. The attorney’s claim of discrimination is that he has been discriminated against because he was treated differently than lawyers with similar academic credentials; his desired remedy is to be treated the same way as his academically high-achieving counterparts. Conversely, in the patient dumping scenario, the psychiatric patients’ situation will not be remedied by treating them in the same way as persons without the same disability. Such persons wouldn’t need medical treatment at all.

Whatever conceptual framework one uses to analyze patient dumping, it is also less than clear that more aggressive enforcement of EMTALA (or revisions to it) is the best way to address the problem. EMTALA requires only that a hospital “stabilize” an “emergency medical condition” (or appropriately transfer the patient to another facility that can stabilize the condition), not that the hospital restore a patient to perfect health. Or, in other words, EMTALA requires a hospital to help an indigent woman in labor deliver her infant and recover from the delivery, but not to keep her in a staff dermatologist’s care until her chronic acne clears up. In the EMTALA cases that caught the Commission’s attention, the patients appear to have been “stabilized” in the sense that they were not facing any immediate crises of physical health. Instead, they claim that the hospital failed to adequately treat their longstanding psychiatric conditions.

Some members of the Commission appear to concede that EMTALA as currently drafted does not squarely address such psychiatric patients’ plight. In the report’s recommendations, they have called for revisions to the legal definition of “stability” so that persons would not be declared completely stable “until they are strong enough to function without medical supervision or until the hospital accounts for the type of care necessary to keep that person stable outside the hospital.”  But, as the Heriot dissent points out, this recommendation does little to acknowledge the arbitrary burden this would place on the hospitals and doctors who happen to be closest by when such a psychiatric patient seeks treatment.  Requiring them to provide services for free until a patient is “stabilized” in this broad sense is an unstable solution to this problem.

The Heriot dissent also questions the lack of attention in the report  to one of the most important issues raised by EMTALA:  To what extent, if any, is the dwindling number of hospital emergency rooms across the country attributable to EMTALA?  One of the easiest and most profitable ways for a hospital to discharge its responsibility under EMTALA is to close its emergency room, since only hospitals with emergency rooms are required to accept all comers. Indeed, the number of emergency rooms that have been closed since EMTALA’s passage is hair-raising.  And the very hospital that was at the center of a controversy sparking the Commission’s interest in this subject—Rawson-Neal Psychiatric Hospital in Las Vegas—is a telling example of this same phenomenon.  After being cited by the federal government for EMTALA violations, Rawson-Neal opted to close its “Drop-In Clinic.”

The core concern motivating the Commission’s report seems to be that not enough money is being spent on psychiatric care for the very poor. That concern may well be correct. There are several different sources of potential funding for that care – state and local governments, the federal government, and private charity. Public policy solutions to the problem might involve one, two, or all three of these. Meanwhile, it is far from clear that EMTALA’s solution of conscripting medical services from hospitals with emergency rooms and the doctors who staff those emergency rooms is superior to any or all of them.