Managing Psychiatric and Behavioral Health Patients in the ED under EMTALA

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1 American Health Lawyers Association June 26 & 28, 2017 Managing Psychiatric and Behavioral Health Patients in the ED under EMTALA Robert A. Bitterman, MD JD FACEP CEO, Bitterman Health Law Consulting Group, Inc. & Mary C. Malone, Esq. Hancock, Daniel, Johnson & Nagle, P.C. Introduction There is no medical-legal issue in hospital-based care more difficult, more confusing, or more risk-prone than managing behavioral health or psychiatric patients in the emergency department. The malpractice risk alone for dealing with these patients is substantial. It may surprise many in health care that failure to prevent suicide results in one of the highest average indemnity awards in emergency medicine - around $400,000 per claim. Missed acute myocardial infarctions (heart attacks) cost less money per case than missed suicide cases. Overall, about 3 to 4% of successful claims against emergency departments pertain to behavioral health issues. Then there is The Emergency Medical Treatment and Labor Act, EMTALA, the federal law governing emergency services, which controls all three primary components of emergency department (ED) psychiatric care the medical screening exam, stabilizing treatment, and transfers. The federal government (Centers for Medicare and Medicaid (CMS) and the Office of Inspector General (OIG)) has levied a substantial number of citations and fines against hospitals and emergency physicians for allegedly violating EMTALA in the evaluation, treatment, and transfer of psychiatric patients. Furthermore, emergency physicians become embroiled in EMTALA peer-review hearings and face potential monetary fines or termination from Medicare over psychiatric cases more than all other aspects of emergency care combined. Medical screening issues include the nebulous concept of medical clearance, the extent of the evaluation and testing required, and the involvement of on-call psychiatrists or psychiatric assessment/admission teams. Stabilization issues include security, search and seizure, physical or chemical restraints, and the perplexing questions of when exactly is a psychiatric patient stabilized. Finally, problems regarding transfer of psychiatric patients include economic considerations, ED boarding and in-patient bed availability, transport methodologies, and involvement of state or county sponsored mental health programs. This presentation aims to help hospital counsel, hospital administrators, compliance officers, risk managers, and clinicians recognize the key elements in the management of behavioral health/psychiatric emergencies and avoid the assorted associated legal pitfalls. 1

2 Initial Evaluation or Screening of Psychiatric Patients The most practical approach to ED screening of psychiatric patients is to divide the evaluation into a medical screen and a psychiatric, or mental health screen. The purpose of the medical exam is to diagnose and treat any underlying emergency medical conditions (EMC) and rule out acute organic causes of the patient's psychiatric symptoms. The purpose of the psychiatric exam is to determine if the patient has a psychiatric emergency, such as acute psychosis or suicidal intent, which requires immediate psychiatric intervention or civil commitment. Medical Screen. Typically, the emergency physician addresses the patient s medical issues before asking a consultant to evaluate the patient's psychiatric issues; thus the term medical clearance. The emergency physician s goal is to adequately address all the medical issues prior to sending the patient off to the psychiatrist for a definitive evaluation of the patient's psychiatric disorder, since the patient usually receives no further medical evaluation after leaving the ED. The scope or extent of the medical workup is often difficult to judge and subject to wide variation amongst emergency physicians and psychiatrists in differing communities. However, a common error is for the emergency physician to conduct a cursory or wholly inadequate examination of these high-risk patients. An appropriate history and physical exam, including neurological exam, should be the expected minimum. The extent of laboratory testing is controversial. Possible tests include CBC, electrolytes, glucose, urinalysis, thyroid studies, alcohol level, drug testing for substances of abuse, or toxicological screening. Testing Policies or Clinical Pathways. The necessity of any laboratory evaluation should depend upon the clinical presentation and the judgment of the examining physician rather than a set routine, such as electrolytes, glucose, and urine drug screen. The vast majority of medical problems in psychiatric patients are readily identifiable through vital signs, history, and physical examination. Routine screening is a waste of time, money, and man power; it also delays access to the psychiatric intervention the patient may desperately need. Many hospitals have policies or clinical pathways for the medical workup of psychiatric patients, primarily because of longstanding expectations or demands from their psychiatric referral sources. Physicians should consider the ramifications and drafting of such policies very, very carefully. If hospital policy requires all patients to get a CBC, urinalysis, and a thyroid test before transfer to a psychiatric facility, then you will be held to that standard. What you say you ll do becomes part of your standard EMTALA screening process, and thus subject to review by CMS and plaintiff's attorneys. When CMS or an attorney investigates screening cases, their first action is to demand a copy of the hospital's policies and procedures. If CMS finds you're supposed to do a CBC and u/a, but you failed to do so, you have de facto violated federal law by failure to follow your standard screening process. In dealing with CMS, whether the test was actually clinically indicated or whether any harm came to the patient is entirely irrelevant. This is strict liability, just like a speeding ticket: you violated the law, you pay the fine. It doesn't matter if anybody got hurt. You are held liable for failure to follow your own rules, even if your actions met the standard of care and were not negligent. 2

3 In civil cases, however, the plaintiff's attorney must prove your 'failure to follow your own rules' actually caused the plaintiff personal harm, and that your failure was the proximate cause of that harm. For example, your policy requires a thyroid profile but you failed to do the thyroid test and thus failed to detect the patient's severe hypothyroidism; you are therefore legally responsible for the next ten years he spent in a mental institution rather than as a productive member of society while taking thyroid medication. The government routinely expects hospitals to perform extensive work-ups of psychiatric patients, far more that the average emergency physician would even remotely consider. The courts, though, hold that the physician's judgment on what, if any, tests are indicated for particular conditions does not fall under the purview of EMTALA, but rather is a question of medical malpractice to be addressed in state civil proceedings. [See, E.g., Vickers v. Nash General Hospital, 78 F.3d 139 (4th Cir 1996); Baber v. Hosp. Corp. of Am., 977 F.2d 872, 883 (4th Cir. 1992); and Summers v Baptist Medical Center Arkadelphia, 91 F.3d 1132 (8th Cir 1996).] Furthermore, the physician's judgment can be wrong, negligent (such as failure to order a brain CT scan to determine if a patient with psychiatric symptoms has an organic etiology for those symptoms), or even grossly negligent and not constitute an EMTALA violation. It's not the adequacy of the physician's judgment that's at issue under EMTALA, but whether the process was appropriate for that patient's complaint. If the hospital's standard process for managing patients with toxic ingestions and suicidal intent was triage, appropriate vital signs, complete history and physical by a physician, and physician judgment on what tests, what treatments, what observation period were appropriate for that individual patient, then as long as the hospital followed this process, it didn't violate EMTALA - regardless if the physician's decision to not obtain a blood alcohol level or urine cocaine screen failed to meet the standard of care. [See Vickers v. Nash, Summers v. Baptist] An alcohol level, electrolytes, CXR, EKG, or urine drug screen should never be 'mandatory', but always left to the discretion of the physician after assessing the nature and circumstances of the patient's presentation. The key here is to research the literature and then draft an 'appropriate' policy regarding testing, drug screening, and toxicological evaluation of psychiatric patients that does not hamstring the emergency physicians. In drafting such policies, the hospital should also take into account its accepting specialists and the expertise of the accepting facility. For example, if you admit the patient to your hospital's in-patient psychiatric unit and can obtain internal medicine and/or neurology consults, then your ED evaluation can be much different than if you're sending the patient to a state psychiatric facility which lacks neurologic or internal medicine expertise. If you refer the majority of your psychiatric patients to one physician group or to one psychiatric facility, then engage in a dialogue and mutually adopt an acceptable scope for the 'medical clearance' before transferring patients to those physicians or facilities. 3

4 Psychiatric Screen. CMS specifically requires hospitals to formally designate, in writing, and obtain approval from the Board of Trustees of the hospital, who can perform the any screening exam on its behalf, including the psychiatric screen. [42 CFR (a)(i). The individuals designated to perform MSEs must also meet the Medicare requirements of 42 CFR concerning emergency services personnel and direction.] Typically, in most hospitals the duty falls to emergency physicians, though CMS may require that the emergency physician consult the on-call psychiatrist if one is available. [See below for comment on this CMS expectation.] The scope of the psychiatric screen should include a mental status exam, affect, mood, speech, thought content/process, and insight/judgment. The emergency physician should specifically comment on whether the patient is a danger to themselves or others. [CMS EMTALA Interpretive Guidelines Section V. Task 3 - Record Review.] Suicidal thoughts do not necessarily mean the patient is suicidal, so the emergency physician must determine if the thoughts rise to the level of placing the patient in imminent danger (i.e., meets the definition of an EMC under EMTALA), such that the patient meets commitment criteria and/or requires further examination by a trained psychiatrist to determine whether the patient meets commitment criteria. The psychiatric screening usually occurs after the patient has been medically screened, treated, and 'medically cleared' (or simultaneously). Some hospitals either by choice, or because of county or state mandates, call in a quasi-governmental crisis intervention team to evaluate the patient for admission to a psychiatric facility. In some areas of the country state psychiatric facilities refuse to accept patients in transfer until this crisis team has evaluated the patient and blessed the admission decision. However, the hospital or emergency physician's liability does not change one iota by the use of such teams. First, the team consists of nurses or social workers, usually quite experienced in the assessment of psychiatric patients; but they are not physicians. Second, they are not credentialed members of the medical staff of your hospital and have not been approved by the medical staff or the governing body of the institution to perform psychiatric screening, thus they do not have privileges to make medical decisions on patients in your institution. Third, the EMTALA responsibility and the civil liability for the patient's care remains with the hospital s emergency physician. The hospital cannot contract away its legal responsibilities under EMTALA. It s perfectly fine if the team helps expedite a transfer to an appropriate facility within the community, and does not unduly delay or hinder appropriate care of the patient. But if the hospital allows the teams recommendations rather than its physicians to guide the patient's care, or allows them to chew up so much time that it jeopardizes the management of the patient, the hospital will be held responsible. Frequently such teams request additional blood or urine tests, particularly drug screening, prior to transfer to an accepting facility. Knowing whether the patient regularly ingests cocaine or marijuana may be helpful down the road to the psychiatrist's care of the patients, however, such tests are not necessary for the initial evaluation of the patient in the ED and only further delay access to psychiatric intervention. These requests are partly motivated by concern for the patients, but the crisis team may also be motivated to force the referring hospital to eat the costs 4

5 for all these tests rather than the accepting facility, particularly if the accepting facility is a state institution or a managed care entity. Holding a patient in 4-point leather restraints in the emergency department for six hours while the crisis team contemplates or argues about whether in-patient treatment is necessary won't sit well with CMS; and the emergency physician and hospital remain liable for the individual, not the crisis intervention team. Stabilization of Psychiatric Patients (It is assumed that any intoxication or medical emergency has already been addressed, and only the patient's psychiatric condition needs further attention; i.e. the patient is medically clear. ) EMTALA defines stabilization to mean - that no material deterioration of the [emergency] condition is likely, within reasonable medical probability, to result from, or occur during, the transfer of the individual from a facility. [42 USC 1395dd(e)(3)(B).] What is it about psychiatric patients that lead one to conclude that they are suffering from an emergency medical condition (EMC)? It is the fact that they represent a danger to themselves or others. If one renders the patient incapable of harming himself or others, then such individuals should be considered stable under the language of the law. Appropriately restraining the patient, either through chemical or physical means, clearly prevents such an individual from hurting himself or others. Therefore, if you can assure that the patient is properly restrained, chemically and/or physically, so that he/she cannot harm him/herself or others, then a reasonable interpretation of the law would hold that such a patient is stabilized. Once stable, the law ends. The government agrees, stating that: Psychiatric patients are considered stable when they are protected and prevented from injuring or harming him/herself or others. [CMS Interpretive Guidelines (d)(1)(i). ] However, CMS adds the following caveat if the hospital now wants to transfer the stabilized psychiatric patient: The administration of chemical or physical restraints for purposes of transferring an individual from one facility to another may stabilize a psychiatric patient for a period of time and remove the immediate EMC but the underlying medical condition may persist and if not treated for longevity the patient may experience exacerbation of the EMC. Therefore, practitioners should use great care when determining if the medical condition is in fact stable after administering chemical or physical restraints. [CMS Interpretive Guidelines (d)(1)(i). ] This means when transferring psychiatric patients who are still suicidal, to determine stability the emergency physician must take into account a litany of potentially foreseeable issues such as 5

6 the transport time, effect and duration of medications administered in the ED or enroute, capabilities of the transport team or law enforcement vehicle, likelihood of medical or psychiatric deterioration enroute, security enroute, and capabilities and capacity of the receiving facility. If there is any doubt in the EP s mind, it is best to keep the patient until the physician is certain that the patient will arrive at the intended receiving facility without compromise. Boarding of Psychiatric Patients in the ED Boarding psychiatric patients in the ED while they wait for admission or transfer for placement elsewhere is an enormous problem nationwide. Seventy five percent of hospitals report boarding psychiatric patients for over 24 hours; fifty percent report boarding for longer than two days; and ten percent have boarded patients for longer than a week. Furthermore, over two-thirds of hospitals provide absolutely no psychiatric care while the patients are boarded in the ED. Hospitals need to determine who and how they will care for these patients during the boarding periods. Emergency physicians need to keep tract of the patients and include them in transition of care updates (handoffs) at the time of shift change. Furthermore, periodic assessment of the patients should be done and documented and especially so, including another set of vital signs, at the time of admission or transfer. Hospitals also need to consider whether CMS will cite them for failure to stabilize the psychiatric patient if the hospital choses to board the patient in the ED instead of admitting the patient to one of its inpatient units, particularly if the hospital operates an inpatient psychiatric unit. The Joint Commission standards include some that are specific to the boarding of behavioral health patients, such as: Hospitals that do not primarily provide psychiatric or substance abuse services must have a written plan that defines the care, treatment, and services or the referral process for patients who are emotionally ill or who suffer the effects of alcoholism or substance abuse. If a patient is boarded while awaiting care for emotional illness and/or the effects of alcoholism or substance abuse, the hospital does the following: o Provides for a location for the patient that is safe, monitored, and clear of items that the patient could use to harm himself/herself or others. o Provides orientation and training to any clinical and nonclinical staff caring for such patients in effective and safe care, treatment, and services (for example, medication protocols, de-escalation techniques). o Conducts assessments and reassessments, and provides care consistent with the patient s identified needs. Hospitals must measure and set goals for curbing the boarding of patients in the ED. Boarding goals should be based on patient acuity and best practice. The Joint Commission recommends that boarding times should not exceed four (4) hours. 6

7 (However, the four-hour time frames will not being imposed as a national target or a requirement for accreditation. The expectation is that hospitals will set their own time limits for boarding and they will be scored based on their own goals, although Joint Commission surveyors will question hospital leaders about what conditions require boarding times beyond 4 hours.) When the hospital determines that it has a population at risk for boarding due to behavioral health emergencies, hospital leaders communicate with behavioral health care providers and/or authorities serving the community to foster coordination of care for this population. The Joint Commission s objective is to enhance patient safety by addressing a) the use of data and metrics to better manage patient flow as a hospital-wide concern; b) the safe provision of care for patients should boarding occur; and c) mitigating risks experienced by patients with psychiatric emergencies who are boarded in the ED. It also wants to help mitigate demand for ED services and improve collaboration on continuum of care strategies for these patients. [Joint Commission Standards LD and PC on Patient Flow and Boarding of Patients in the ED.] Transfers of Psychiatric Patients. The big question regarding psychiatric transfers is whether hospitals which have on-call psychiatrists and inpatient psychiatric units violate EMTALA if they admit only insured patients; transferring uninsured patients to a designated state or county psychiatric facility. As long as the patient meets EMTALA'S/CMS's definition of stable for transfer, then it is legal to transfer the uninsured patients. Economic transfers are not illegal under EMTALA, as long as the patient does not have an EMC, or if the patient does have an EMC it is stabilized before transfer. There are pitfalls in transferring any patient for economic reasons, particularly psychiatric patients since they are essentially a 'protected class' under CMS's regulations. CMS and the OIG have announced they will closely scrutinize psychiatric transfers away from institutions capable of handling in-patient psychiatric emergencies. They will examine the methods and duration of restraints, how long it took to arrange the transfer, the duration of the transport itself, the security of the individual, the appropriateness of medical treatment, and any potential complications that could occur in route, especially if the patient was medicated just prior to transfer. Appropriate attention to the patient's medical issues, aggressiveness, security, and medications is important, and in some instances may actually require sending the patient via ambulance with a nurse in attendance to accomplish a safe transfer. Whether the transfer was appropriate will be judged under a reasonableness test, based on the individual facts and circumstances of the transfer. However, compliance with EMTALA, or even ordinary malpractice, will be reviewed retrospectively with the knowledge that the decision was based on the patient's lack of financial resources. Institutions should carefully select which patients are transferred for economic 7

8 reasons, assuring that such transfers occur smoothly and without any substantial risk of harm to the patient. Documentation is also extremely crucial, and should track the language of the law. Even when claiming the patient to be stable, hospitals should still complete appropriate EMTALA transfer forms. Carefully drafted forms, which include sections outlining decisions regarding presence or absence of an emergency condition and whether or not the patient has been stabilized, can protect the hospital if the care rendered is questioned retrospectively by CMS or plaintiff's attorneys. It is also paramount that the hospital reevaluates and repeats the vital signs of the patient at the time of transfer, document its findings at that time, and reconfirms that the patient is still stable for transfer. Additional Issues in the ED Management of Psychiatric Patients. Refusing the screening examination or stabilizing treatment. Can suicidal patients refuse offered medical and psychiatric screening evaluations and stabilizing treatment? No. Laws in all fifty states not only allow, but mandate the emergency physician/hospital ED to take control of individuals intent on harming themselves or others. Suicidal patients are not legally competent to accept or reject indicated medical intervention to prevent death, such as treatment of a potentially lethal overdose. They can, however, refuse care for minor self-inflicted injuries, such as superficial wrist lacerations. Restraints and security search policies. Searching potentially suicidal patients for drugs or weapons they could use to kill themselves and properly restraining them to prevent further harm are both a form of stabilizing procedures. As with testing policies in the medical screening exam, restraint and search policies will be subject to the "failure to follow your own rules test" both by CMS and plaintiff attorneys. If your ED policy says all patients will be searched by security and placed under observation by a 'sitter', but such does not occur and the patient seriously re-overdoses on medications stashed in her purse, then the hospital will cited for failure to follow its own search policies by CMS. Never delay securing or restraining suicidal patients waiting for a physician s order, a custody order, commitment papers, or disposition decision. The legal duty to protect patients/secure them from harm attaches the moment the hospital (through one of its nurses or physicians) knows or reasonably believes the patient is harmful to self or others. Transfer of voluntary admissions vs. involuntary commitments. All transfers of suicidal psychiatric patients (or psychiatric patients meeting commitment criteria) must be under some form of formal legal hold papers, depending upon your state law, even if the patient is willing to voluntarily be admitted at the accepting psychiatric facility. Otherwise, there is no legal order detaining the patient during transport; if the patient demands the medics drop him off at the next corner they must do so or be liable for false imprisonment. 8

9 Enforcement Issues - Dealing with CMS and/or the OIG. Dealing with the government agencies with respect to psychiatric services in the hospital ED can be extremely difficult, terribly frustrating, and very expensive. CMS and OIG expectations and compliance enforcement often clash with clinical practice in the real world and far exceeds what is actually required by the EMTALA statute. For example: 1. Requiring Unnecessary Consultations from On-Call Psychiatrists for Screening and/or Stabilization of Psychiatric Patients in the ED. In its written Statement of Deficiencies against hospitals, CMS has made the blanket assertion that any time a patient presents to the ED with psychiatric symptoms the hospital should have had its on-call psychiatrist come to the ED and provide a psychiatric screening for each and every patient; and the on-call psychiatrist must come to the ED to assist with stabilization in each case. [See for example, CMS Region IV EMTALA Citation against AnMed Health, CMS Certification Number: , EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.] Does CMS really view a residency-trained board-certified emergency physician as incapable of screening patients for psychiatric emergency conditions? Does CMS really view an emergency physician as incapable of stabilizing a patient with a psychiatric EMC (such as acute psychosis or acute active suicidal intent)? Is it CMS's rule that an ED with a psychiatrist on-call for the ED must have the psychiatrist oncall come into the ED to personally examine all patients presenting with psychiatric symptoms to provide a psychiatric screening exam and/or to provide stabilizing treatment? Or does the on-call psychiatrist only need to come to the ED to assist with screening or stabilization when it is deemed necessary by the treating emergency physician - i.e., whenever the emergency physician believes on-site consultation is required, just like emergency physicians do for patients presenting with abdominal pain and consulting a surgeon, or vaginal bleeding and consulting obstetrician, or a pediatric fever and consulting a pediatrician. If CMS does interpret EMTALA to mean that emergency physicians are incapable of providing psychiatric screening and stabilization, it is duty bound to issue formal written guidance/opinion explicitly stating that interpretation, and include specific citations to supporting statutory or regulatory authority. As one can imagine, such an opinion would be contrary to almost universal existing practice in the United States and incite serious concern within the hospital community and Emergency Medicine residency programs, particularly since HHS funds through the Medicare program 167 EM residencies all of which have the diagnosis and treatment of psychobehavioral disorders as one of their major core-curriculum disciplines and corecompetencies necessary for board certification in the specialty of emergency medicine. (These specific questions were submitted in writing to CMS s Regional Office in Atlanta and referred on by its Chief Medical Officer to central CMS and the OIG on December 14, As of May 27, 2017 neither CMS nor the OIG has responded. (RAB)) 9

10 CMS s and the OIG s contentions are contrary to the statute and CMS s own regulations! 1.A. Medical Screening Examination (MSE) and use of On-Call Psychiatrists EMTALA requires a hospital to provide an appropriate medical screening examination within the capability of the hospital s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. [42 USC 1395dd(a).] The statute does not delineate who may perform the MSE on behalf of the hospital. CMS states in its regulations that: The examination [MSE] must be conducted by an individual(s) who is determined qualified by hospital bylaws or rules and regulations and who meets the requirements of of this chapter concerning emergency services personnel and direction. [42 CFR (a)(1)(i).] CMS further states in its EMTALA Interpretive Guidelines that: The designation of the qualified medical personnel (QMP) should be set forth in a document approved by the governing body of the hospital. If the rules and regulations of the hospital are approved by the board of trustees or other governing body, those personnel qualified to perform the medical screening examinations may be set forth in the rules and regulations, or the hospital bylaws. [CMS Interpretive Guidelines (a)(1)(i).] Virtually every hospital in the country has designated its emergency physicians as qualified to perform MSEs on its behalf (as well as other members of the medical staff, such as those who take call to the ED.) It is also important to note that the sole purpose of the EMTALA required MSE is to determine whether or not an emergency medical condition exits. [CMS Interpretive Guidelines (a)(1)(i). Emphasis added.] The psychiatrists who do serve on the hospital s on-call list are available to the emergency physicians as ancillary services routinely available to the emergency department to assist in screening patients for psychiatric emergency conditions when necessary to determine whether or not an emergency medical condition exists. [42 USC 1395 dd(a); and 59 Federal Register (June 22, 1994).] If the emergency physician is able to determine whether an EMC exists, he or she does not need an on-call physician to help make that determination. It is only when the emergency physician needs the assistance and expertise of an on-call physician that the hospital is required to utilize 10

11 the services of the on-call physician in screening the patient, and this is true regardless if the medical condition is a medical problem, a surgical problem, a pediatric problem, a neurosurgical problem, or a psychiatric or behavioral health problem. If the services of an on-call physician are not necessary to determine an EMC exists, then the hospital has no duty to provide an on-call physician to assist in screening a patient for an emergency condition. In cases cited by CMS in its statement of deficiencies it was not at all difficult for the emergency physician to ascertain whether the patient suffered an EMC. Many are well known chronic psychiatric patients with obvious emergency conditions such as acute psychosis, suicidal intent, or manifest behavior which threatened others. Many had already encountered the state mental health system and its psychiatrists and actually came to the ED via law enforcement already on involuntary commitment papers. Others, through an appropriate history and physical examination with or without laboratory studies, were readily determined to have an EMC without requiring the expertise of an on-call psychiatrist to make that determination. Said another way, it s not exactly difficult for an emergency physician to determine that a 50 year-old man who tried to blow of his head with a 45 caliber revolver is actively suicidal. CMS s Interpretive Guidelines state that The determination of whether an EMC exists is made by the examining physician(s) or other qualified medical personnel of the hospital. Interpretive Guidelines (a)(1)(i). If the emergency physician determines an EMC is not present, the MSE is finished and the services of the on-call physician are not required. Moreover, EMTALA ends whenever the emergency physician determines the patient doesn t have an EMC. Even CMS acknowledges this fact: Hospitals are not obligated under EMTALA to provide screening services beyond those needed to determine that there is no emergency medical condition. [CMS EMTALA Interpretive Guidelines (c). CMS also states in this section that the hospital s EMTALA obligation ends for an individual determined to not have an EMC at the completion of the MSE.] If the emergency physician determines an EMC is present, the MSE is also finished and the services of the on-call physician for the MSE are not required. If the emergency physician needs the expertise of the on-call psychiatrist to determine if an EMC is present, then and only then is the on-call physician required to come to the ED to assist in determining whether an EMC exists. 1.B. Stabilization and use of On-Call Psychiatrists Hospitals have an EMTALA duty to stabilize patients diagnosed with emergency medical conditions utilizing the full capabilities of its staff and facilities, including on-call physicians - if those on-call physicians or facilities are necessary or required to stabilize the patient. Under EMTALA the term to stabilize means: 11

12 with respect to an emergency medical condition to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. [42 USC 1395dd(e)(3)(A). Emphasis added.] CMS s regulations and interpretive guidelines also say essentially the same: to stabilize means to provide such medical treatment of the condition necessary to assure within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of an individual from a facility; [42 CFR (b). Emphasis added.] and the hospital must provide within the capabilities of the staff and facilities available at the hospital for further medical examination and treatment as required to stabilize the medical conditions. [42 CFR (d)(1); and Tag A-2407/C-2407 CMS Interpretive Guidelines on EMTALA. Emphasis added.] Therefore, if the services of an on-call physician/psychiatrist are not necessary or required to stabilize the individual then the hospital has no duty under the law to mandate its on-call physicians/psychiatrists to present to the ED to provide stabilizing services. EMTALA statutorily defines stabilized to mean - with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility. [42 USC 1395dd(e)(3)(B). Emphasis added] CMS has specifically defined psychiatric patients to be stable when they are protected and prevented from injuring or harming him/herself or others. [CMS Interpretive Guidelines on EMTALA, Tag A-2407/C-2407.] Thus, once the hospital emergency department utilizes its usual interventions to protect and prevented these psychiatric patients from injuring or harming themselves or others (medical clearance, searched, and secured) these patients with psychiatric emergencies have been stabilized as that term is defined by EMTALA, and no on-call physicians must be involved thereafter. And once stability is achieved, the law ends. CMS agrees: After stabilizing the individual, the hospital no longer has an EMTALA obligation. [CMS Interpretive Guidelines, Tag A-2407/C-2407.] 12

13 Additionally, note that under the plain language of the statute the duty to stabilize someone doesn t arise until the patient is actually transferred away from the facility (which is defined by the statute to include discharges). [42 USC 1395dd(e)(3)(A) & (B).] If the patient isn t transferred (or discharged), such as when a patient is boarded in the ED, there is no duty to stabilize under EMTALA; though there may be under state law or the standard of care. Thus, the proper standard for determining whether the hospital complied with its duty to stabilize patients with EMCs is to examine whether, at the time of transfer/discharge, the patient was stabilized as that term is defined in the statute. As related above, EMTALA defines stabilized to mean - with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility. [42 USC 1395dd(e)(3)(B). Emphasis added] CMS and the OIG routinely assert that psychiatric patients are unstable at the time of transfer, and its most common rationale is that the patient still required psychiatric evaluation and treatment or that the patient required further evaluation and care. [See for example, CMS EMTALA Citation Against Baptist Memoria Hospital, EMTALA Complaint Control Number: TN39077, CMS Certification Number (CCN): , dated February 23, 2017; and CMS EMTALA Citation against AnMed Health, CMS Certification Number: , EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.] Whether the patient still needed further psychiatric evaluation and treatment is not the correct standard to apply when determining whether the patient is stabilized under EMTALA. The proper and precise question to ask under EMTALA is whether within reasonable medical probability it was likely that the patient s emergency condition would materially deteriorate during or as a result of the transfer. If the answer is yes, then the patient was unstable at the time of transfer. If the answer is no, then the patient was stable at the time of transfer and EMTALA did not apply to that transfer; and any further psychiatric evaluation and treatment can be provided at the accepting facility or on an outpatient basis and its provision is not governed by EMTALA in any way. CMS even provides explicit instructions to its QIO reviewing physicians regarding this distinction. In its 5-day QIO review form it reminds the physician reviewer that the terms relating to stabilization do not reflect the common usage in the medical profession, but instead focus on the risks associated with a particular transfer/discharge. [CMS Exhibit QIO EMTALA Review Physician Worksheet, page 4, last issued February 20, Available at: Guidance/Guidance/Manuals/downloads/som107_exhibit_138.pdf. ] CMS also provides the definition of stabilized for the reviewing physician: at the time of transfer was the individual s EMC stabilized meaning that no material deterioration of the condition was likely, within reasonable medical probability, to result from or occur during transfer. (Emphasis added.) 13

14 Nevertheless, CMS and its physician reviewers routinely ignore the statutory definition and instead based their opinion on the sole contention that the patient needed further psychiatric care, a fact that hospitals don t deny but assert is not the issue under EMTALA. It may be a quality of care or standard of care issue; but it is not an EMTALA issue. EMTALA s clear statutory language only requires stabilization of the patient s emergency condition; it does not require definitive treatment of that emergency condition an important distinction often unappreciated. For example, CMS claimed that transport of docile patients in the back of locked secure law enforcement vehicle for 5.8 miles or approximately 13 minutes violated EMTALA because the patients were unstable at the time of transfer. If CMS is actually following the statutory definition, it is therefore claiming that the transfer to an accredited State inpatient psychiatric hospital of docile patients in a locked secure police car for 13 minutes was likely, within reasonable medical probability, to result in material deterioration of the patient s emergency condition. Does CMS, the QIO physician reviewer, or any experienced emergency physician really believe that to be true? In point of fact, it s extremely unlikely, and certainly not reasonably probable, that such a transfer will cause any deterioration, let alone material deterioration in a patient s psychiatric medical condition, especially after the patient has been in the ED for days while waiting for a bed at the receiving hospital. Furthermore, once stable EMTALA s obligations end any further treatment or discharge plans are not governed by EMTALA. CMS confirms this also stating: After stabilizing the individual, the hospital no longer has an EMTALA obligation. The physician may discharge the individual home, admit him/her to the hospital, or transfer (the appropriate transfer requirement under EMTALA does not apply to this situation since the individual has been stabilized) the individual to another hospital depending on his/her needs. [CMS Interpretive Guidelines, Tag A-2407/C-2407.] 2. Claiming that there is a duty to admit under EMTALA. CMS regularly cites hospitals for failure to stabilize psychiatric patients because it failed to admit the patient, and instead boarded and treated the patient in its ED or transferred the patient to another hospital. However, a hospital s only obligation in EMTALA is to stabilize the patient, as defined by the law; there is no duty to admit patients under EMTALA/ The hospital s duty to stabilize patients diagnosed with emergency medical conditions includes utilizing the full capabilities of its facilities, including admitting the patient to the inpatient setting, but only if those facilities are necessary or required to stabilize the patient. Again, statutory definitions matter, and under EMTALA the term to stabilize means: with respect to an emergency medical condition to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. [42 USC 1395dd(e)(3)(A). Emphasis added.] CMS s regulations and interpretive guidelines also say essentially the same: 14

15 to stabilize means to provide such medical treatment of the condition necessary to assure within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of an individual from a facility; [42 CFR (b). Emphasis added.] and the hospital must provide within the capabilities of the staff and facilities available at the hospital for further medical examination and treatment as required to stabilize the medical conditions. [42 CFR (d)(1); and Tag A-2407/C-2407 CMS Interpretive Guidelines on EMTALA. Emphasis added.] Therefore, if inpatient services are not necessary or required to stabilize the individual then there is no duty under the law to provide inpatient services. If the hospital stabilized the patient s psychiatric emergency condition in the ED, then it is under no EMTALA obligation to admit the patient. Failure to admit the patient for further treatment is not the same as failure to admit the patient for necessary stabilizing care under law. If inpatient services are necessary to stabilize the patient, but the hospital fails to admit the patient that is a violation of EMTALA. However, failure to provide additional treatment beyond stabilization is not governed by EMTALA. It may not be the best of medicine, it may not meet the standard of care, it may even not be acceptable to society as a whole; but it doesn t violate EMTALA. There are other ways to enhance access to care and improve services for psychiatric patients without stretching the reach of EMTALA beyond that firmly set by Congress. Note again that CMS agrees that once a patient is stable EMTALA s obligations end, and any further treatment, admission, or transfer decisions are not controlled by EMTALA: After stabilizing the individual, the hospital no longer has an EMTALA obligation. The physician may discharge the individual home, admit him/her to the hospital, or transfer (the appropriate transfer requirement under EMTALA does not apply to this situation since the individual has been stabilized) the individual to another hospital depending on his/her needs. [CMS Interpretive Guidelines, Tag A-2407/C Emphasis added.] Hospitals may transfer indigent patients to state hospitals, repatriate managed care patients to their home hospitals, transfer patients for state law reasons, economic reasons or any reason at all - provided the patient is stable as defined by EMTALA at the time of transfer. 3. Forcing hospitals to provide inpatient psychiatric services for patients outside the scope of the hospital s defined capabilities, such as for involuntary commitment patients normally transferred to state psychiatric facilities. In one frightening case, CMS forced a hospital to begin admitting patients involuntary committed under the states civil commitment law to its inpatient Behavioral Health Unit (BHU), despite the fact that for over 30 years the hospital had a written, board approved and reapproved, 15

16 policy of only admitting voluntary patients. The involuntary committed (IVC) patients were always transferred to the nearby State psychiatric hospital. [CMS Region IV EMTALA Citation against AnMed Health, CMS Certification Number: , EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.] CMS alleged that in all 36 cases at issue the hospital s decision to not admit the patients to the hospital, but instead board them in the ED until they could be discharged or transferred, was financially motivated. CMS provided no evidence to back this assertion, and in fact the payor mix of the voluntary admissions to the BHU had remained steady at approximately 20% selfpay/no-pay for decades. Moreover, on the contrary, the BHU s stated inpatient service capabilities and capacity were clearly defined by written policy, were followed in actual practice, and were based solely on medical indications and not on any economic, insurance, or other discriminatory factors. If the patient voluntarily agreed to be admitted and met the admission criteria, the patient was always admitted irrespective of insurance status or ability to pay. The hospital rarely even knew the patient s insurance status when deciding whether to admit or transfer the patient. Medicare participating hospitals are allowed to define their service capability/capacity (scope of services); and as long as they provide that capability/capacity uniformly to all comers on a nondiscriminatory basis they comply with EMTALA. In response to a commenter s question regarding whether a hospital was required to treat emergency psychiatric disorders regardless of a hospital s capabilities, CMS long ago stated: Neither the statute nor the regulations mandate that hospitals expand their resources or offer more services. Rather, they focus on the hospital s existing capabilities. The thrust of the statute is that a hospital that offers emergency services to some members of a community who need their emergency services (for example, those that can pay) cannot deny such services to other members of the community with a similar need. [59 Federal Register 32100, June 22, 1994.] This hospital had since 1974 limited its scope of inpatient behavioral health services to voluntary admissions, and not accepted IVC patients for admission. Its published written admission criteria clearly stated that the policy of the hospital/bhu was to accept voluntary admission patients, who are mentally, physically, and behaviorally capable of participating in the therapeutic programs of the unit. Additionally, patients whose behavior is characterized by frequent and violent outbursts toward others, and who in the opinion of the admitting psychiatrist, may not be behaviorally controlled may not be eligible for admission. Therefore, the hospital had no duty under EMTALA to expand its resources and offer additional services to accept IVC patients for admission into its BHU. CMS also asserted that the hospital had the capability and capacity to accept IVC patients. However, CMS s own definition of the capabilities of a hospital available to stabilize patients under EMTALA states the following: 16

17 Capabilities of a medical facility means that there is physical space, equipment, supplies, and services that the hospital provides. [CMS S&C Memorandum-02-06, Hospital Capacity EMTALA. November 29, Emphasis added.] CMS own Interpretive Guidelines concur, using the language and specialized services that the hospital provides. [Interpretive Guidelines (d)(1)(i). Tag A Emphasis added.] Thus, a hospital must actually provide a certain service, such as inpatient care for IVC patients, before it can be deemed to have the capability to provide that service. If the hospital does not provide certain (specialized) services it is under no obligation to admit a patient for the purposes of providing those type of services; in these cases management of patients under state law IVC papers (and/or someone who couldn t participate in the BHU treatment programs or whose conduct would jeopardize the health and safety of other patients on the unit, as well as the staff on the unit.) The inpatient management of IVC patients requires substantially greater resources and capabilities than the care of voluntary patients, as the hospital discovered after it started admitting IVC patients at CMS s compulsion. This includes additional staffing, enhanced physical plant security measures, greater security staff presence, enhanced security training of all staff members, additional training of staff related to involuntary commitments under State law, increased liability insurance issues, and additional legal expertise and availability for holding formal court sessions related to the IVC processes once a week. The inpatient management of IVC patients can also impact other services a hospital provides. In this hospital s case, admitting IVC patients resulted in the loss of its 16 bed inpatient geriatric unit, primarily due to patient safety concerns. Many psychiatric facilities across the country only admit voluntary psychiatric patients and transfer involuntary committed patients to state hospitals or other hospital which accept such patients. They will all fear for their survival upon learning of the actions taken by the Atlanta Regional Office of CMS. 4. Inappropriately applying EMTALA s Appropriate Transfer requirements to the transfer of patients not found to have an EMC or to the transfer of patients with an EMC which has been stabilized. CMS often cites hospitals for violating EMTALA by failing to arrange an appropriate transfer for patients, despite the fact that the hospital did not determine the patient had an EMC or the hospital stabilized the EMC prior to transfer. [See, for example, Cape Fear Valley Medical Center CMS EMTALA Comp1aint Control Number: #012705EMT920, dated April 13, 2005; or Randolph Hospital CMS Certification Number (CCN) , EMTALA Complaint Control No. NC , dated July 13, 2016, alleging that the hospitals failed to arrange an appropriate transfer, even though the hospitals did not determine the patients had an EMC.] 17