Stalking Patients at Hospitals

Next week, Sen. Al Franken, a Minnesota Democrat, will chair a field hearing on the effectiveness of federal laws to protect patients’ access to care and privacy. The hearing comes on the heels of Minnesota Attorney General Lori Swanson‘s accusing Accretive Health--one of the nation’s largest debt-collection agencies--of excessive and possibly illegal tactics, including strong-arming patients in Minnesota hospitals. A voluminous six part report can be found here. However, the issue extends beyond Minnesota as Accretive has contracts with hospital systems throughout the nation.

According to the attorney general’s report, the Illinois-based collection agency hid in hospital waiting rooms and even stalked patients in convalescing rooms to collect payments before and after treatments. Those desperate tactics are particularly troubling because they occur when patients are seeking emergency medical care. The cases highlighted by Swanson’s office detail clandestine debt collection schemes that not only misrepresent hospital staff, but may have a deterrent effect on individuals seeking treatment.

According to a New York Times investigation, “collection agencies, even use scripts” and boilerplate language when interacting with patients. Ultimately, such actions may deter individuals from receiving or seeking treatment.

Swanson’s investigation raises important legal and ethical questions. For example, stalking patients at hospitals for bill payment might be unscrupulous, but is it illegal? If there is some illegal practice occurring, what is it? Are these tactics (stalking at hospitals, embedding as medical personnel, etc.) permissible if a patient refuses to pay medical bills or simply lacks the financial resources to do so?

Three federal laws, including the Emergency Medical Treatment and Active Labor Act (Emtala), the Fair Debt Collection Practices Act (FDCPA), and the Health Insurance Portability and Accountability Act (Hipaa) offer guidance on this issue as all play some role in protecting patient interests. Indeed, each may have been violated by hospitals using unchecked, aggressive debt collection strategies, not only in Minnesota but across the country.

For example, Hipaa protects patient privacy and restricts certain uses of patient information without the patient’s consent. Under Hipaa, hospitals are subject to the “privacy rule,” which forbids data sharing or disclosures about “individuals’ health information.” According to Lori Swanson, Minnesota hospitals provided sensitive patient data to debt collectors in such a way that likely violated the act. That is not all.

The Minnesota Attorney General’s report outlined a range of nefarious practices, including hospitals “embedding” debt collectors among their staff, including in emergency rooms. If that is true, hospitals using such tactics may have violated the Emtala if the practices resulted in turning away patients in need of emergency care. That law requires hospitals receiving federal funds to provide care to individuals (regardless of citizenship or nationality) who present with an emergency medical condition. Nearly all U.S. hospitals are regulated under Emtala, because they received federal funds through Medicare and Medicaid. The legacy that precedes Emtala involved poor pregnant women being turned away from delivering at nearby hospitals. In some cases, the women delivered in their cars while en route to other hospitals located miles away. That legacy also includes immigrant patients in emergency conditions being denied treatment at hospitals that refused to provide care based on their status. Emtala was intended to change that. And while these laws may be perceived as working in tandem or in seamless coordination, that is far from the truth.

However, the problem is not a matter of law or the need for more law. These laws are likely regularly trespassed due to poor enforcement and accountability mechanisms at the local and federal levels.

Hospitals incur significant debt, especially through emergency room treatment, because it is far more expensive to treat individuals in emergency rooms. Typically, the patient’s health has been compromised and a more rigorous treatment regimen may be required. However, the working poor use emergency rooms far more frequently and sometimes primarily, because they do not have access to medical insurance. Lacking access to medical insurance can also close the door to more cost-affordable and preventive care.

So, are such collection practices unfair game?

If hospitals are to collect on supersized patient debt (just over $39-billion in uncompensated care in 2010), calibrating what information they may reasonably share with debt collection agencies is an important issue, but one that hasn’t received adequate federal and state attention. Compliance with Hipaa is voluntary, and the fines are minimal. The same is true, at least for fines, with these other laws. For example, the Fair Debt Collection Practices Act limits consumer recovery to $1,000 if they file claims against debt collectors. That penalty was established in the 1970s and has not been adjusted for inflation in over 30 years. That type of penalty is hardly a deterrent to reckless debt-collection conduct.

Patient harassment will likely continue so long as the penalties for such abuses are only a slap on the wrist.