Some emergency physicians (EPs) do not fully understand how the Emergency Medical Treatment and Labor Act (EMTALA) applies to psychiatric patients, according to Mary C. Malone, JD, a partner in the healthcare law firm of Hancock, Daniel, Johnson & Nagle in Richmond, VA.
In Virginia, this is likely the result of the civil commitment system, whereby the community services boards are taking control of the disposition of behavioral health patients in the ED.
“CMS [Centers for Medicare & Medicaid Services] generally considers emergency department physicians qualified to perform the psychiatric portion of the medical screening examination,” Malone says. “Federal EMTALA law preempts state civil commitment law.”
Consequently, CMS will not consider attempts by a hospital to comply with the state commitment process as an excuse for non-compliance with EMTALA.
There may be a disagreement between the EP and the state representative who is evaluating the patient for a legal hold regarding the need for involuntary treatment, the facility where the patient will be admitted, or the court order regarding how the patient will be transported to another facility under a legal hold.
“The EP must make reasonable attempts to obtain legal reconsideration of the patient’s needs and not simply let the civil commitment process take over,” Malone says.
Because payers often have separate coverage and reimbursement protocols for patients with mental illness, EPs are at a disadvantage when screening psychiatric patients, says Thomas Barker, JD, a partner and co-chair of healthcare practice at Foley Hoag in Washington, DC.
“Even after the EP successfully completes the screening exam, for patients who must be admitted and who are covered by public health insurance programs such as Medicare and Medicaid, the physician must grapple with programs that impose limitations on coverage for mental illness,” he says.
These limitations, which were common in the commercial insurance marketplace in 1965 when Medicare and Medicaid were created, remain to this day, Barker says, even though the private insurance marketplace has advanced through the enactment of mental health parity laws.1
“At least one court has observed that ‘EMTALA … aims at disparate treatment,’” Barker says.2 “Quite simply, each similarly situated emergency patient should be treated the same regardless of their payment source.”
Because of the way many payers manage their care, Barker says, psychiatric patients pose the potential for disparate treatment.
“Many payers, including, at this point, most Medicaid state plans, carve out the behavioral health benefit from the standard benefit package,” he says.
A payer that specializes in psychiatric care then manages behavioral healthcare; that payer often contracts only with a handful of hospitals with inpatient psychiatric units. Barker gives this scenario to illustrate the dilemma this poses for EPs: The decision to admit a patient who presents to an ED with an emergency medical condition was made, but the hospital does not have a contract with the patient’s behavioral health carve-out provider, even though it has an open bed in its locked psychiatric unit.
“It is possible the hospital risks an EMTALA violation if it transfers the patient at that point, especially where the transfer is made only for payment purposes,” Barker says.
Mental Health Unaddressed
The EP must ensure that the medical screening examination is appropriate, Malone says. This requires medical screening to rule out any organic origin of the patient’s behavioral health symptoms, followed by psychiatric screening to determine whether the patient is a threat to himself or others.
Nathan A. Kottkamp, JD, a partner in the Richmond, VA office of McGuireWoods, has handled cases in which the EP conducted a medical screening but didn’t address mental health issues.
“Mental health issues are part of the required screening for EMTALA,” he emphasizes.
EMTALA does not create a different standard of care, he explains. If the evaluation and treatment provided to a particular patient is reasonable under the circumstances and consistent with the standard of care, Kottkamp says, “it’s going to meet the EMTALA rules. But there is often a mindset of focusing on the obvious problem in front of the provider.”
When dealing with EMTALA screenings, Kottkamp says a mental health evaluation should be routine, regardless of any other clinical issues.
“Of course, it may be very easy to rule out a mental health issue, but the key is that it is specifically addressed and documented,” he explains.
If a patient presents with acute behavioral distress, the tendency is for the EP to focus on the behavioral health issue. “But you also need to conduct a comprehensive screening to figure out if there is some type of physical issue,” Kottkamp says.
Even after performing the evaluation properly, EPs run into problems if they fail to indicate in their documentation that, in addition to screening for behavioral health issues, they also screened for physical distress and other healthcare issues.
“You need to indicate clearly in the record, in case there is any challenge at a later date, that you screened for both,” Kottkamp says.
Kottkamp often sees poor, sparse documentation in ED charts indicating what the EP evaluated and considered.
“The more complicated the case, the better the note ought to be,” he says. “We’ve seen cases where it’s just the opposite.” Kottkamp says that contemporaneous notes are the “very best defense the EP has. You wrote it right then, not because you’re being investigated but because you are making a clear record of what you are doing.”
Here are some challenges involving EMTALA and psychiatric patients:
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It can be difficult to determine at what point a patient is no longer a threat to self or others.
“This is a tricky scenario,” Malone says. A patient may present with suicidal ideations but after a couple of hours in the ED, indicates that he is no longer actively suicidal.
“Does that mean the patient is stable? Not necessarily,” Malone says. Patients may falsely claim that suicidal ideations have passed in order to avoid further screening or treatment. “The physician has to take into account the patient’s psychiatric history and other factors,” Malone says. “Beware of discharging too quickly before stability is achieved and maintained for a safe period of time.”
The need to retain psychiatric patients in the ED for an appropriate period of observation prior to release, however, can be challenging.
“A traditional ED is not necessarily set up to handle these patients,” Malone notes.
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Patients with emergency medical conditions who need psychiatric admission often cannot get beds in a timely manner.
“This is an emerging problem, as access to behavioral health becomes more challenging,” Malone says. “Many hospitals do not have behavioral health units.” This requires patients to be transferred to an appropriate facility, utilizing appropriate means of transport and equipment or personnel.
“This means that in most cases, the patient should not be transported by private car,” Malone says. “It may require that staff accompany the patient during an ambulance transport.”
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Certain state civil commitment laws conflict with federal EMTALA requirements.
In some cases, the patient has a psychiatric emergency medical condition but is not willing to agree to a psychiatric admission. In such cases, a court order must be obtained to hold and evaluate the patient.
“It is easy for hospitals to relinquish control over the patient in these situations, allowing the civil commitment process to drive the patient care and transfer,” Malone says. “But CMS is not concerned with state civil commitment laws.”
This means that in cases in which there may be an inappropriate transfer or discharge of a psychiatric patient with an emergency medical condition due to state civil commitment processes, CMS will still hold the hospital responsible for any resulting EMTALA violations.
EPs should not allow persons involved in the civil commitment process to perform the psychiatric screening portion of the EMTALA medical screening exam, Malone warns.
“This is not allowed,” she says, adding that only members of the hospital’s medical staff or employees who are either physicians or who have been designated as “qualified medical personnel” may perform those exams.
Malone says EPs should understand the hospital’s obligations regarding psychiatric patients with respect to all three major EMTALA obligations: screening, stabilization, and transfer.
“Do not delegate these obligations to others in cases where patients are involuntary and there is a need to institute the state civil commitment process,” she underscores.
Kottkamp has seen EPs get into trouble when outside entities assist with mental health screening for detention orders and involuntary admissions.
“Where there is a complete and utter handoff to those entities, that creates a real risk for EPs,” Kottkamp says.
The EP is required to maintain ultimate control over the entire case until such time as that patient leaves the ED, he explains. If a patient is being worked up for possible involuntary admission to the court in the state of Virginia, community service boards perform the evaluation and determine whether or not to proceed with the court process.
“But as long as that patient is still in the ED, the EP needs to retain control of the case and reassess that patient,” Kottkamp says. “You can’t have somebody waiting for the screener to come along and not show that you are checking on the patient and making sure there is no change in status.”
EPs often feel they are handing the case to the screener, and that the patient is no longer their responsibility.
“But EMTALA doesn’t defer to state law in this case,” Kottkamp explains. “It says the EP has control of the case until there’s a discharge.”
REFERENCES
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42 U.S.C. § 300gg-26.
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Brooks v. Maryland General Hospital, 996 F.2d 708 (4th Cir. 1993).
SOURCES
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Thomas Barker, JD, Partner/Co-chair, Healthcare Practice, Foley Hoag, Washington, DC. Phone: (202) 261-7310. Fax: (202) 467-9610. E-mail: [email protected].
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Nathan A. Kottkamp, JD, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1092. Fax: (804) 698-2072. E-mail: [email protected].
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Mary C. Malone, JD, Hancock, Daniel, Johnson & Nagle, Glen Allen, VA. Phone: (804) 967-9604. Fax: (804) 967-9888. E-mail: [email protected].
