There is no EMTALA issue in emergency medicine more difficult, more confusing, or more risk-prone than managing psychiatric patients in the emergency department. The AnMed Health case is the quintessential example and should greatly concern emergency physicians.

AnMed Health, a hospital system based in Anderson, South Carolina, recently settled with the Office of Inspector General (OIG) for $1.295 million for allegedly failing to appropriately screen and stabilize psychiatric patients presenting to the hospital’s emergency department.

The Centers for Medicare and Medicaid Services (CMS) and the OIG, the agencies within the Department of Health and Human Services (HHS) charged with enforcing EMTALA, claimed that AnMed Health:

1. Should have required its on-call psychiatrist to come to the emergency department to personally examine all patients with psychiatric symptoms and participate in the screening and stabilizing of each patient, irrespective of whether the emergency physician needed or requested the services of the on-call psychiatrist—asserting in effect that emergency physicians are incapable of screening or stabilizing psychiatric patients under EMTALA;
2. Should have admitted involuntary committed (IVC) patients to its inpatient psychiatric unit instead of boarding them in its emergency department for many days until they could be transferred to the nearby state psychiatric hospital, despite the fact that for more than 30 years by written policy and actual practice the hospital only admitted “voluntary” patients to its psychiatric unit; and
3. Emergency physicians inappropriately transferred the patients in an unstable condition when patients were transported in the back of a locked secure police car for approximately 11–12 minutes to the nearby state psychiatric hospital.^1,2

Who Can Screen and Stabilize Psychiatric Patients?

ILLUSTRATION: Chris Whissen & shutterstock.com

The sole purpose of EMTALA’s mandated medical screening exam (MSE) is to determine whether or not an emergency medical condition exists, and the hospital must designate who is “qualified” to perform the MSE on its behalf (emphasis added).^3,4 Virtually all hospitals designate their emergency physicians, as did AnMed Health.

Accordingly, if the emergency physician determines the patient has an emergency medical condition (EMC), such as acute psychosis or suicidal intent, the MSE is finished, and there is no legal requirement that the hospital’s on-call psychiatrist be summoned to the emergency department to confirm that the patient has an EMC.

The psychiatrists who serve on the hospital’s on-call list are 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.^3,5

If the emergency physician is able to determine whether an EMC exists, an on-call physician is not needed to help make that determination. It is only when the emergency physician needs the assistance and expertise of an on-call physician to determine if an EMC exists that the hospital is required to utilize the services of the on-call physician in screening the patient, and this is true regardless of whether the medical condition is a medical problem, surgical problem, pediatric problem, neurosurgical problem, or psychiatric or behavioral health problem.

In the 36 cases cited by CMS in its statement of deficiencies against AnMed Health, it was not at all difficult for the emergency physician to ascertain whether the patient suffered from an EMC. Many were well-known chronic psychiatric patients with obvious emergency conditions such as acute psychosis, suicidal intent, or behavior that threatened others. Many, just hours before, had encountered the state mental health system and had been sent to the emergency department by a psychiatrist via law enforcement, already on involuntary commitment papers for the emergency department to hold them until a bed became available in the state hospital. Others, through an appropriate history and physical examination, were readily determined to have an EMC without requiring the expertise of an on-call psychiatrist to make that determination. It’s not difficult for an emergency physician to determine that a 50-year-old man who tried to blow his head off with a 45-caliber revolver is actively suicidal.

The logic and the law are the same with respect to stabilizing patients with emergency conditions. 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 emergency department to provide stabilizing services.

So when is a psychiatric patient stabilized? CMS has specifically defined psychiatric patients to be stable “when they are protected and prevented from injuring or harming themselves or others.”⁶

Thus, once the hospital emergency department utilizes its usual interventions to “protect and prevent psychiatric patients from injuring or harming themselves or others” (medical clearance, searched, secured, removal of means and opportunity to harm self or others), the patients with psychiatric emergencies have been “stabilized,” as that term is defined by EMTALA, and the on-call physicians need not be involved to stabilize the patient.

Moreover, once stability is achieved, the law ends, and once the patient is stable, any further treatment, such as the care provided while the patient is boarded in the emergency department, psychiatric consultations, or any discharge or transfer, is not governed by EMTALA. As stated by CMS:

“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 individual to another hospital depending on his/her needs.”⁶

If the government 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 to include specific citations to supporting statutory or regulatory authority. As one can imagine, such an interpretation would be contrary to almost universal existing practice in the United States and incite serious concerns 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 psycho-behavioral disorders as one of their major core-curriculum disciplines and core-competencies necessary for board certification in the specialty of emergency medicine.

Do Hospitals No Longer Have the Right to Define Their Scope of Services?

CMS forced AnMed Health to admit patients involuntary committed under the state’s civil commitment law to its inpatient behavioral health unit, despite the fact that for more than 30 years the hospital had a written board-approved policy of only admitting “voluntary” patients for confidential short-term psychiatric care. The IVC patients were previously always transferred to the nearby state psychiatric hospital about six miles away.¹

Historically, Medicare-participating hospitals have been 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 EMTALA question regarding whether a hospital was required to treat emergency psychiatric disorders regardless of a hospital’s capabilities, CMS stated long ago:

“Neither the [EMTALA] 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.”⁵

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.⁷ This included structural changes to the unit, enhanced physical plant security measures, greater security staff presence, enhanced security training of all staff members, additional staffing (and increased staff turnover due to the “difficulties” in managing this patient population), additional training of staff related to involuntary commitments under state law, increased liability insurance issues, additional legal expertise and availability for holding formal court sessions related to the IVC processes once a week, and the implementation of telepsychiatry to meet the additional services burden on the psychiatrists.

Does this OIG ruling mean that hospitals with inpatient psychiatric units may not transfer psychiatric patients for economic reasons, either unfunded patients to a state psychiatric hospital or managed care patients repatriated to a contracted hospital?

Does this mean any hospital that now only admits voluntary patients for confidential short-term inpatient psychiatric care must also admit involuntary patients or close its inpatient unit? Must they now also admit “forensic” patients from jails or prisons even if law enforcement refuses to provide 24-7 security? What about violent patients? Where does the government draw the line? In essence, CMS and the OIG have usurped a hospital’s ability to define its own scope of services.

The settlement agreement between AnMed Health and the OIG hints but does not specifically delineate that the hospital may have utilized some form of admission financial triage, which justified the monetary penalty.⁸ However, a hospital representative categorically denied that the hospital had engaged in any financial screening and reported that the involuntary patients had about the same payer mix as the voluntary admissions.⁹

When Is a Psychiatric Patient Stable for Transfer to a State Psychiatric Hospital?

CMS asserted that each of the 20 boarded IVC patients AnMed Health’s emergency department transferred to the state psychiatric hospital was unstable at the time of transfer. The sole rationale provided for the government’s assertion was that “the patient still required psychiatric evaluation and treatment” or that “the patient required further evaluation and care.”¹

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 [emphasis added].”¹⁰

Therefore, 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 the law.

The proper standard to follow is the statutory definition, in which case the government is claiming that transport of a docile suicidal patient in the back of a locked, secure law enforcement vehicle for about six miles, or approximately 11–12 minutes, was likely, within reasonable medical probability, to result in material deterioration of the patient’s emergency condition. Does CMS, its physician reviewer, the OIG, 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 condition, especially after the patient has been in the emergency department for many days waiting for a bed at the state hospital.

Neither CMS nor its physician reviewer claimed that any problem, complication, or deterioration whatsoever arose during transfer or as a result of the transfer in any of the 20 patients AnMed Health transferred to the state hospital.¹ Whether the patient still needed “further psychiatric evaluation and treatment” may be a quality-of-care or standard-of-care issue, but it is certainly not an EMTALA issue.

Additional Questions

Why didn’t the OIG seek to impose monetary penalties on the emergency physicians? It was the emergency physicians who failed to consult the on-call psychiatrist to screen and stabilize the psychiatric patients, it was the emergency physicians who allegedly failed to stabilize the patients in the emergency department, and it was the emergency physicians who allegedly inappropriately transferred the patients in an unstable condition. Perhaps the OIG didn’t really think the physicians’ actions violated the statute and it was just angry that the hospital boarded the patients for days on end instead of admitting them or arranging prompt transfer to an inpatient psychiatric hospital. It may have been easier to settle with the impersonal bricks-and-mortar instead of making it personal with a named emergency physician who would have been much more willing to challenge the OIG in court to protect both reputation and pocketbook. Maybe there is more to the story that is damaging to the hospital than has been published to date, which led it to settle with the OIG for such an outlandish amount?

Summary

Dealing with government agencies with respect to psychiatric services in the emergency department can be extremely difficult, terribly frustrating, and very expensive. The expectations and compliance enforcement of CMS and the OIG often clash with clinical practice in the real world and may exceed what is actually required by the EMTALA statute. Emergency physicians and hospitals need to critically and urgently reassess their compliance with EMTALA with respect to the care of psychiatric patients in the emergency department.

Dr. Bitterman is president of Bitterman Health Law Consulting Group, Inc. in Harbor Springs, Michigan.

References

1. CMS Region IV EMTALA Citation against AnMed Health, CMS Certification Number: 42-0027, EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.
2. Civil monetary penalties and affirmative exclusions. Office of Inspector General website. Accessed Sept. 19, 2017.
3. Examination and treatment for emergency medical conditions and women in labor, 42 USC §1395dd(a) (2010).
4. CMS interpretive guidelines on special responsibilities of Medicare hospitals in emergency cases, §489.24(a)(1)(i) (2010).
5. Medicare program; participation in CHAMPUS and CHAMPVA, hospital admissions for veterans, discharge rights notice, and hospital responsibility for emergency care. Fed Regist. 1994;59(119):32100.
6. CMS interpretive guidelines on special responsibilities of Medicare hospitals in emergency cases, §489.24(d)(1)(i) (2010).
7. AnMed Health statement on EMTALA compliance [press release]. July 5, 2017.
8. OIG–AnMed Health EMTALA settlement agreement dated June 26, 2017. Bloomberg BNA website. Accessed Sept. 19, 2017.
9. Loughran M. Hospital’s $1.3M emergency treatment settlement causes alarm. Health Law Reporter. 2017;26(28).
10. Examination and treatment for emergency medical conditions and women in labor, 42 USC §1395dd(e)(3)(B).