Hancock, Daniel, Johnson & Nagle, P.C.

The Challenge of EMTALA Compliance in Psychiatric Cases

by Mary C. Malone and R. Brent Rawlings
Hancock, Daniel, Johnson & Nagle, P.C.

The Emergency Medical Treatment and Active Labor Act ("EMTALA") involves many challenges for risk managers in terms of implementing policies and procedures that will ensure compliance with the letter and spirit of the law. Ensuring EMTALA compliance becomes even more difficult when psychiatric patients present in hospital emergency departments. Many emergency departments are ill-equipped to address the needs of psychiatric patients, which creates even greater risk of EMTALA violations.

Significant civil monetary penalty and the possibility of Medicare exclusion coupled with increasing EMTALA enforcement actions provide substantial incentive for EMTALA compliance. Accordingly, risk managers are well-advised to implement "best practices" to ensure EMTALA compliance in psychiatric cases, which often present even greater exposure than the typical emergency department visit.

It should be noted that the Center for Medicare and Medicaid Services ("CMS") has proposed EMTALA regulations which would clarify a number of problematic issues regarding application of the law; however, to date, those regulations have not been finalized. So in pursuing a "best practices" model as regards EMTALA compliance, hospitals will need to follow the current regulations. Once the proposed regulations have been finalized, hospitals should review their EMTALA policies, procedures, forms, and protocols to ensure continued compliance with regulatory clarification and modification.

I. Background

The legislative history of EMTALA indicates that Congress was concerned that hospitals were actively engaging in the practice of abandoning indigent and uninsured emergency care patients in an effort to cut costs. Anecdotal evidence of patients in labor or in critical condition being turned away because of their uninsured status and inability to pay for services in advance of treatment provided support for the legislation. Through EMTALA, Congress clearly intended to put an end to patient-dumping: the act of denying medical care to patients for economic or non-economic discriminatory reasons.

However, Congress’ seemingly straightforward goal of ending patient-dumping seems to have been distorted by the ever-expanding reach of EMTALA coupled with the difficulties of complying with the law given the practical realities of the emergency department. As risk managers and emergency department personnel well know, trying to ensure compliance with complicated procedures and documentation requirements on a busy night in the emergency department can be overwhelming. Therefore, it is not surprising that hospital emergency departments have reported difficulty in complying with EMTALA requirements, adequately training staff, and staffing on-call panels for some specialties, all of which contribute to a hospital’s operational problems. The difficulty involved in identifying psychiatric illness in the emergency room setting and predicting the behavior of patients presenting with such conditions results in even greater compliance challenges.

In order to effectively address the challenges inherent in the emergency treatment of psychiatric patients, it is important to understand the basic legal requirements created under EMTALA and be aware of the specific problems that arise when EMTALA requirements are applied in a psychiatric situation. Set forth below is a summary of the law and the challenges created by EMTALA.

II. "Triggering" EMTALA

EMTALA applies to any Medicare participating hospital having an emergency department and to any patient that comes to the emergency department requesting examination or treatment of a medical condition. The law applies whether or not the patient is eligible for Medicare and regardless of the patient’s ability to pay; a fact that presents a good example of the broadening scope of EMTALA. While some earlier cases required that EMTALA violations involve some economic or discriminatory motive for denying treatment, more recent cases hold the hospital’s motive to be an irrelevant factor. Therefore, the two elements necessary to trigger EMTALA in hospital emergency departments are: (1) coming to the emergency department and (2) requesting examination or treatment of a medical condition.

Coming to the Emergency Department

The patient need not present directly to the emergency room. EMTALA is triggered by a request for treatment anywhere on the hospital property. "Property" is defined in the regulations as "the entire main hospital campus . . . including the parking lot, sidewalk, and driveway as well as any facility or organization that is located off the main hospital campus." Accordingly, EMTALA currently reaches beyond the hospital walls to psychiatric outpatient centers located off-campus. Likewise, EMTALA may also extend to situations where a psychiatric patient presents at a non-psychiatric outpatient center. While the proposed EMTALA regulations may ultimately limit what hospital property means so as to reach a more logical result, those regulations have not been finalized. Therefore, unless and until those regulations are finalized, hospitals must be prepared to identify and respond to patients presenting with psychiatric illnesses anywhere on hospital property.

Requesting Treatment of a Medical Condition

EMTALA requirements are triggered when a patient, or an individual on the patient’s behalf, requests treatment. In the context of psychiatric illness, the request for treatment often comes from an individual other than the patient as psychiatric patients may be in a psychotic state, unconscious, or uncooperative, thus rendering them incapable of such request. The request for treatment may also be implied from the patient’s presentation, even though no actual request for treatment is articulated.

The definition of "emergency medical condition" in the regulations serves the purpose of identifying the nature and degree of illness to which EMTALA is to apply. This definition explicitly includes "psychiatric disturbances ," thus making EMTALA applicable to all hospitals having emergency departments regardless of whether or not psychiatric services are provided. Accordingly, all hospitals having an emergency department must, at least for EMTALA purposes, respond to the examination and treatment needs of psychiatric patients, as well as other requirements of the act with regard to such patients.

III. EMTALA Requirements

Once EMTALA is triggered, the hospital emergency department is obligated to provide the patient with a medical screening examination. If, in the course of such examination, the hospital determines that the patient has an emergency medical condition, then it is further required to stabilize the medical condition or to transfer the patient to another medical facility. For reasons discussed below, complying with EMTALA requirements for psychiatric patients has proven to be a difficult task.

Medical Screening Examination

"[T]he hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department." The purpose of this examination is to determine whether an emergency medical condition exists. The courts have interpreted appropriate to mean in accordance with standard screening procedure, prompt, and consistently applied. Capability refers to that of the emergency department and its ancillary services, not the entire hospital. Accordingly, a hospital offering psychiatric services is not necessarily held to a higher standard for purposes of conducting the medical screening examination. Conversely, where a hospital has no mental health professionals on staff and existing staff are clearly not qualified to screen patients for psychiatric illness, it is best to presume an emergency medical condition where there is substantial evidence of psychiatric illness and transfer the patient in accordance with EMTALA requirements.

Complying with the medical screening examination requirement in the psychiatric context is difficult for a number of reasons. In many instances, emergency department staff is not sufficiently qualified to screen patients for psychiatric illness. As psychiatric illness cannot always be objectively diagnosed, the specialized training of on-call psychiatrists is often required. Accurate diagnosis is often further complicated by the need for symptoms to be self-reported or communicated through an individual other than the patient, such as a family member, friend or emergency medical technician. Additionally, the psychiatric patient may be uncooperative with diagnosis efforts.

A recommended means of dealing with the difficulty involved in screening psychiatric patients is to develop a specialized screening for detecting psychiatric illness that amounts to an emergency medical condition. Such specialized screening is useful in closing the gaps in training that may exist among various health professionals on the emergency department staff as regards detection of psychiatric illness.

Specialized psychiatric screenings should be adopted in the place of more general screening standards when psychiatric illness is suspected. The screening should be structured to first rule-out any organic cause for mental health, then to perform a health assessment for psychiatric needs. At an absolute minimum, the screening should allow health professionals conducting the screening to determine whether the patient presents a risk of harm to himself or to others as a result of psychiatric illness.

Hospitals should note, however, that the use of a specialized screening creates some additional EMTALA risk in the sense that the specialized screening must be applied consistently. This means that the specialized screening must be implemented for all patients presenting with similar symptoms. Accordingly, hospitals should establish protocols for determining when use of the specialized psychiatric screening is indicated. The specialized screening and appropriate training should be made available to all areas of the hospital, not just the emergency room, to ensure that regardless of where in the hospital system the psychiatric patient presents, the specialized screening is available and can be applied consistently.

If possible, the mental health portion of the medical screening examination of patients exhibiting signs and symptoms of psychiatric illness should be performed by the most qualified individual available. Determining who is the person(s) best qualified to perform the mental health screening will depend on whether the hospital has psychiatrists and psychologists on staff, and if not, whether there are other mental health professionals available who are qualified to perform the screening. Hospitals are not prevented from allowing non-physician mental health professionals to conduct the medical screening examination. In hospitals where screening for psychiatric illness is not within the capabilities of emergency room staff, the on-call psychiatrist, or any other hospital personnel, some courts have held that calling in a crisis worker or similarly qualified individual from a county health department to provide a screening for psychiatric illness is not a violation of EMTALA. However, the hospital should evaluate emergency department and other health professional staff and structure policy and procedure so as to place the most qualified person in a position to complete the medical screening examination of patients suspected of psychiatric illness when such patients present. For example, if the hospital has a psychiatrist on call, then that physician must perform the screening. If the mental health screening is instead delegated to a less qualified individual, such as a county mental health crisis worker, then the hospital will have failed to comply with EMTALA’s screening requirement.

Emergency Medical Condition

Emergency medical condition is defined in the regulations as "a medical condition manifesting itself by acute symptoms of sufficient severity (including . . . psychiatric disturbances . . .) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual . . . in serious jeopardy; . . . serious impairment to bodily functions; or . . . serious dysfunction of any bodily organ or part . . . . While the language clearly incorporates psychiatric illness, the term emergency medical condition is not specifically defined for application in the psychiatric context.

The American Psychiatric Association ("APA") has addressed CMS concerning the absence of specific guidance in the regulations. In particular, the APA has recommended that the definition of emergency medical condition be revised to include psychiatric symptoms that "indicate an assessment of suicide or homicide attempt or risk, disorientation, or assaultive behavior that indicates danger to self or others." To date, the regulations have not been amended as such.

Regardless, for purposes of EMTALA compliance, psychiatric conditions that present a risk of serious physical injury to either the patient or another person should be considered emergency medical conditions. Screening, stabilization and transfer should take into account the chance that patients experiencing psychiatric illness may be capable of assaultive, suicidal, or homicidal behavior, any of which would place the patient and/or others at great risk of injury and/or death. In psychiatric cases, there is often great uncertainty as to the patient’s future potential for assaultive, suicidal, or homicidal behavior. For the health professional, predicting such outcomes is often not possible. The patient may harbor latent psychotic tendencies not present at the time of screening. Alternatively, the patient’s psychiatric condition may quickly deteriorate after discharge for reasons not discernable at that time.

The courts have generally held that for an EMTALA violation to occur there must be a showing that the health professional conducting the screening had knowledge of the existence of an emergency medical condition. Therefore, as long as an appropriate medical screening examination is conducted, including both a physician and mental health screening, failing to detect a latent psychiatric illness or potential related outcome is not tantamount to an EMTALA violation. The courts have also generally held that for an EMTALA violation to occur, the emergency medical condition must be imminent. Therefore, where an appropriate medical screening examination results in the conclusion that no emergency medical condition exists, the fact that the patient later commits assault, suicide, or homicide does not result in an EMTALA violation. The health professional has no obligation to determine the post-discharge or post-transfer psychiatric condition of the patient. Only immediate emergency medical conditions impose EMTALA liability.

Stabilization

"Stabilized" is defined in the regulations as meaning "that no material deterioration of the [emergency medical] condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility." Under EMTALA, where an emergency medical condition is detected, the hospital is obligated to provide stabilizing treatment within the capabilities of the staff and facilities available at the hospital or to transfer the individual to another medical facility in accordance with certain conditions discussed in further detail below.

Unlike the medical screening examination requirement, "capability" is not limited to that of the emergency department and its ancillary services; rather, capability refers to the entire hospital. Accordingly, in the psychiatric context, capability depends upon whether the hospital has designated psychiatric services and/or psychiatric health professionals on staff. In other words, the stabilizing treatment that a hospital may be able to offer a psychiatric patient will depend on what services are routinely capable. A large medical center with an inpatient psychiatric department will likely have greater capability to provide stabilizing treatment than a small community hospital that offers no psychiatric services and has no mental health professionals on staff.

A psychiatric condition is deemed stabilized when the patient no longer presents a threat to himself or others. Therefore, it can be extremely difficult to determine when a psychiatric patient has been stabilized. Determining whether stabilization has occurred is also complicated by the lack of objective data available to health professionals regarding the severity of the patient’s condition. Determination of whether stabilization has occurred is often based upon self-reported information. Depending upon the nature of the psychiatric illness, the patient’s condition could fluctuate widely over a short period of time. Ultimately, reliance upon professional judgment is necessary. Even if that judgment ultimately proves to be flawed, it does not mean that an EMTALA violation has occurred.

Also complicating stabilization efforts is the possibility that the psychiatric patient may resist treatment. For purposes of EMTALA compliance, if an informed patient refuses to consent to treatment against medical advice, a violation has not occurred if such treatment is not rendered as a result. EMTALA requirements are satisfied where "the hospital offers [stabilizing treatment] and informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individual’s behalf) refuses to consent . . . ." When a patient refuses stabilizing treatment, the hospital must take all reasonable steps to secure written informed refusal. Additionally, the medical record must contain a description of the stabilizing treatment offered and refused. Of course, one of the keys to consent being informed is that the patient must be capable of making decisions regarding medical treatment. Where a psychiatric patient refuses medical treatment, the determination as to capability to consent can be difficult. Generally speaking, hospitals should err on the side of caution when there is any question as to capacity to consent. In some instances, obtaining substitute consent (i.e., consent of a parent or spouse) in accordance with state law may be an option, but where no ability to obtain substitute consent is available, use of restraints or an action under state civil commitment laws may be indicated.

Transfer

For purposes of EMTALA compliance, a hospital is only restricted from transferring patients when the medical screening examination has produced evidence of an emergency medical condition and the hospital has the capability to provide stabilizing treatment. An EMTALA violation will not result from a hospital’s decision to transfer a patient not having an emergency medical condition. Likewise, no violation occurs when a patient is transferred to another facility because treatment that the hospital is not able to provide is required and the receiving facility has those required services.

EMTALA restricts transfer of patients having an emergency medical condition which has not been stabilized, unless the individual, after being informed of the risks involved, requests transfer to another medical facility in writing and a physician or a qualified medical person and physician subsequent to, sign a certification that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual. Additionally, transfer of patients having an emergency medical condition is not restricted where transfer is "appropriate." An "appropriate transfer" is defined in the statute as subject to certain conditions that must be present in order for a transfer to be effected.

As with other requirements, transfer is particularly complicated in psychiatric cases. The psychiatric patient may refuse transfer in which case the hospital must determine whether to abide by the patient’s wishes or, if necessary, bring an action under the state civil commitment statute. For purposes of EMTALA compliance, requirements are satisfied where the hospital offers transfer to the patient and informs him or her of the risks and benefits of such transfer. Similar to a refusal to accept stabilizing treatment, the hospital must take all reasonable steps to secure written informed refusal. Additionally, the medical record must contain a description of the stabilizing treatment offered and refused.

However, even if the hospital complies with stabilization and transfer requirements, it may still have liability for a patient’s refusal to accept transfer. For example, if an unstable, psychotic patient refuses to be transported to a psychiatric facility by ambulance and indicates that a friend can transport him to the facility in a private car and then the patient assaults the driver while en route, resulting in an accident with injuries, the hospital could be held liable for not taking appropriate action to ensure an appropriate transport. Therefore, depending upon the law in a particular state, an action under the state’s civil commitment statute may be appropriate. Under no circumstances should a hospital allow a psychiatric patient that has refused transfer to self-transport to another facility. This is a risky endeavor for the patient and for the hospital. If the condition is severe enough to be considered an emergency medical condition, that condition has not been stabilized, and the patient refuses transfer, then an action under the state civil commitment statute should be pursued in an effort to reduce potential liability and to protect the best interests of the patient.

EMTALA requires that all transfers be achieved through the use of appropriate means of transportation and with all necessary equipment and personnel needed to effect a safe transfer. This means that psychiatric patients may need to be accompanied by mental health professionals. Hospitals should also be aware that emergency medical technicians and ambulance operators may not have adequate training regarding the transfer of psychiatric patients. Therefore, the hospital may need to provide its own personnel to assist with transports. There may also be a need to use restraints, which is another factor complicating the transfer of psychiatric patients, especially those that are transferred against their will under a civil commitment statute. Use of restraints is regulated by federal and state law. Hospitals should be familiar with these laws to ensure that use of restraints is appropriate in cases where their use is required in connection with a handling a psychiatric emergency.IV. Ensuring EMTALA Compliance

A review of the EMTALA statute, regulations, and related court decisions in the psychiatric demonstrates the complexity and challenges related to EMTALA compliance. However, hospitals can reduce the risk of EMTALA violations by taking the following steps.

Policy and Procedure

Hospital EMTALA policies and procedures often fail to address psychiatric issues. They also may be somewhat outdated and/or may not be capable of practical implementation. In other words, the policies may contain requirements that the emergency department staff cannot practically put into practice due to staffing shortages, discontinuation of services, etc. There is a tendency in some emergency departments to follow the path of least resistance rather than following the sometime difficult, time-consuming, and frustrating policy requirements. However, good EMTALA policies and procedures and enforcement of them are key to EMTALA compliance. Therefore, hospitals are advised to:

Review and revise EMTALA policies and procedures whenever there is a change or development in the law, but in no event less than annually. Emergency department staff should have input in this process. Also, review and appropriately modify policies and procedures whenever an event occurs that demonstrates that current EMTALA procedures cannot be implemented on a consistent basis or that non-compliance is occurring. Remember that government surveyors will scrutinize those policies and procedures closely and a failure for the hospital to follow its own policies and procedures will be considered a violation.
Review and revise EMTALA-related policies and procedures. For example, in the case of psychiatric situations, make sure that any psychiatric department policies or policies and procedures pertaining to civil commitment procedures (such as obtaining temporary detention orders or emergency custody orders) are consistent with the EMTALA policy and procedures.
Make sure that physicians and hospital staff members are subject to appropriate discipline for failure to comply with EMTALA policies and procedures. Otherwise, persons who are key to maintaining EMTALA compliance may not take these obligations seriously until the hospital is cited and Medicare termination is threatened.

Education

Education and training of physicians and emergency department staff to ensure a working knowledge of EMTALA is crucial to maintaining EMTALA compliance. It is not unusual to find that emergency department personnel are not familiar with EMTALA policies and procedures, instead deferring to "the way things have always been done," which may or may not comply with EMTALA. Once physicians and staff understand the requirements and the potential penalties for non-compliance with EMTALA, they tend to be more vigilant in following policies and procedures and reporting incidents of non-compliance to risk management. Therefore, the following steps are recommended in connection with EMTALA education:

Provide education and training of persons charged with EMTALA compliance whenever there is a change in the law, whenever policies and procedures are revised, whenever significant non-compliance with policies and procedures is identified. In any event, education and training should upon orientation of new hospital employees or members of the medical staff and not less than annually thereafter.
Make educational sessions interactive when possible to encourage feedback and discussion among participants. Interactive sessions can provide valuable insight as to current issues or difficulties facing physicians and staff in connection with EMTALA compliance.
Make attendance at educational and training sessions mandatory and failure to attend subject to disciplinary measures.

Communication

Often difficulty with EMTALA compliance occurs due to communication breakdowns. The examples in this regard are endless with problems in communication occurring between the emergency department physician and on call specialist; between the emergency department registration clerk and the patient; between the nursing staff and physician; between the physician and local government mental health workers; and so on. Communication errors also happen between facilities, sometimes prompting the reporting to CMS of one facility by another in instances where no reporting is required by law. The better the communication among those who are involved in the treatment of patients on an emergency basis is, the less likely there is to be an EMTALA violation. Once people understand their obligations as regards EMTALA issues and the obligations of others involved in the process, the opportunity for effective communication will be presented. To maintain effective communication:

Encourage reporting to risk management of all questions, concerns, and potential EMTALA problems in a timely manner. This may provide the hospital an opportunity to work pro-actively to address concerns before they become violations.
Network with risk managers at facilities to which the hospital frequently transfers patients and from which the hospital frequently accepts transfers to discuss issues and optimal mechanisms for the safe and effective transfer of patients from one facility to another and to share EMTALA-related information.
Communicate with the medical staff regarding EMTALA issues and seek physician input on development of policies and procedures.
Communicate with local government mental health workers who are involved in the civil commitment process to ensure that they understand the hospital’s EMTALA requirements and obligations and their role in assisting the hospital in dealing with mental health patients.

Re-evaluation

Recognize the areas where the hospital may be particularly vulnerable with respect to EMTALA compliance such as handling psychiatric issues, labor and delivery issues, etc. Do not wait until the hospital has been cited with an EMTALA deficiency or until the hospital has been sued for an EMTALA violation to re-evaluate EMTALA compliance. Make sure that EMTALA compliance is monitored regularly through internal auditing of emergency department records and that issues that are identified are examined against existing policies and procedures to determine whether the problem is an isolated error which may be corrected through education and discipline, or if there is a more systemic problem that calls for major modification of existing policies and procedures. Such a proactive approach to addressing EMTALA issues should substantially reduce the hospital’s liability for non-compliance.About the Authors

Mary C. Malone is a director with the firm of Hancock, Daniel, Johnson & Nagle, P.C. Ms. Malone is a health care attorney whose practice includes advising clients on various risk management issues such as EMTALA compliance. For more information, consult the firm website at www.hdjn.com or contact Ms. Malone directly by phone (757-490-7807) or e-mail (mmalone@hdjn.com).

Brent Rawlings is a third year law student at the University of Richmond. Mr. Rawlings will be receiving his law degree in spring of 2004.