Washington State Supreme Court Bans Boarding of Psychiatric Patients in Hospital EDs
October 1, 2014
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Washington State Supreme Court Bans Boarding of Psychiatric Patients in Hospital EDs
By Robert A. Bitterman, MD, JD, FACEP Contributing Editor, ED Legal Letter
On August 7, 2014, the Washington high court held that the state may not board committed psychiatric patients in emergency departments (EDs) as a remedy for lack of treatment beds at certified facilities, and failure of the legislature to appropriate adequate funding for mental health services was not an excuse to allow such boarding.
Prolonged "boarding" of psychiatric patients in emergency departments is a pervasive problem nationwide, but it is particularly pernicious in the state of Washington.1 Across the country, 85% of hospitals report boarding psychiatric patients for more than 24 hours; 50% report boarding for longer than two days; and 10% have boarded patients for longer than a week. Furthermore, well over two-thirds of hospitals provide absolutely no psychiatric care to the patients while they are boarded in the ED.2,3
In Washington, boarding has reportedly quintupled in the past few years. Nearly two out of every three committed psychiatric patients spend some time warehoused in an ED — the average wait time for placement is three days, although some patients are held for weeks.4
Duing the past six years, the state decommissioned 250 psychiatric beds, about 36% of its stock, even as the state’s population grew by 14% and involuntary commitments rose by 27%. During the period of great recession, the legislature in Olympia,WA, cut nearly $100 million from its funding for mental health services.5 Washington now ranks 47th in the nation in its provision of behavioral health services and availability of inpatient psychiatric beds.4,6
Like all states, Washington has a statutory civil commitment process — set out in its Involuntary Treatment Act (ITA).7 If a hospital ED determines that patients, as a result of a mental disorder, present an imminent risk of harm to themselves or others,8 the ITA authorizes the hospital to briefly hold these patients against their will. This detention period, limited to six hours, is provided to allow the ED staff to notify a county "designated mental health professional" who is authorized to order the involuntary custody and transport of the patient to a psychiatric "certified evaluation and treatment facility," as defined by the ITA.9,10,11
The county-certified psychiatric facilities routinely lack sufficient space/beds for all those patients the designated mental health professionals involuntarily detain under the ITA. Consequently, the counties resort to temporarily holding persons they involuntarily detain in EDs (and other acute care centers) via what’s termed "single bed certifications."12 The "single bed certification" is a regulatory exception to the ITA that the Department of Social and Health Services (DSHS) contends allows a county to place an individual on a 72-hour detention or 14-day commitment in a facility that is not certified under the state’s statute/regulations. The purpose of the "single bed certifications" is, paradoxically, to avoid overcrowding the certified psychiatric facilities.12
Facts Leading to Supreme Court Involvement
Against this backdrop, in February of 2013, Pierce County in Washington had detained 10 patients on 72-hour holds under the state’s ITA in local hospitals, primarily in their EDs. Unable to procure beds at a psychiatric "certified evaluation and treatment center" within 72 hours, the county petitioned the Mental Health Commissioner to hold the patients for up to another 14 days in the ED (or other non-certified facility) via "single bed certifications."13 Several of the involuntarily detained patients engaged attorneys and challenged the county’s petition, arguing that they had not been, and believed they would not be, detained in a "certified evaluation and treatment facility" as required by law. Furthermore, the patients claimed they were being denied their right to "adequate care and individualized treatment," which was also explicitly mandated by the ITA.14
The commissioner held an evidentiary hearing that included the state DSHS and several hospitals that housed the involuntarily detained patients. After the hearing, he ruled that a patient involuntarily detained under a "single bed certification" "gets no psychiatric care or other therapeutic care for their mental illness," and that using single bed certifications to avoid overcrowding certified evaluation and treatment facilities is illegal. A trial court judge who reviewed the matter reached the same conclusion, which Pierce County and DSHS appealed. The appeals court, without publishing its rationale, simply punted the case directly to the Washington Supreme Court.13
In the Matter of the Detention of D.W., et al. v. Pierce County and the DSHS
As one could imagine, the case drew enormous interest in the state from hospitals, emergency physicians, nurses, and civil rights groups, and many of their respective advocacy organizations filed "friend of the court" briefs urging the Supreme Court to uphold the trial court’s ruling.5
The court noted that the state’s current involuntary commitment system has been "regularly overwhelmed" since it was first enacted by the legislature in 1979.13 It then proceeded to agree unanimously with the trial judge that boarding psychiatric patients in the ED was illegal in Washington state, basing its decision solely on the statutory language of the ITA and not on any due process or other constitutional grounds.13
First, the court determined that when involuntary commitment patients are boarded under a "single bed certification" at a non-certified facility, they are indeed not provided any substantive psychiatric medical care as required by the ITA. The law plainly states that once an individual is involuntarily detained or committed, he or she "shall have the right to adequate care and individualized treatment."15
EDs simply do not have the qualified staff, training, pharmaceutical skills, or resources to deal with the mental health needs and security and safety of psychiatric patients. The ED basically functions as a holding tank, warehousing the patient instead of providing counseling and/or therapeutic intervention, administering medications to control agitation rather than treating underlying psychiatric conditions, and undertaking a good faith effort to prevent the patient from eloping while waiting for the state to find a proper treatment bed for the patient.16 The \commissioner and trial judge both found that a patient involuntarily detained under a "single bed certification" "gets no psychiatric care or other therapeutic care for their mental illness."13 The DSHS itself testified that these patients "are getting less care than they would if they were in an [certified] evaluation and treatment center."13
Second, the court noted that the ITA specifically and repeatedly requires persons involuntarily detained for evaluation, stabilization, and treatment to be held in certified evaluation and treatment facilities (i.e., facilities that the state has previously certified meet requirements set out in the ITA that ensure they are competent and capable of addressing the patient’s psychiatric emergency conditions).17
The ITA defines "evaluation and treatment facilities" as any facility that can provide directly, or by direct arrangement with other public or private agencies, emergency evaluation and treatment, outpatient care, and timely and appropriate inpatient care to persons suffering from a mental disorder, and which is certified as such by the department [DSHS].18
Among other things, a certified evaluation and treatment facility must be able to provide a timely psychosocial evaluation by a mental health professional,19 an individualized plan of care, and treatment with daily contact by a qualified mental health professional,20 supervision by mental health professionals or specialists who meet specific necessary qualifications (including background checks by the Washington state patrol),21 and appropriate safety and security systems for both the patients and the staff.
The court stated that the statutory definition of an "evaluation and treatment facility" does not include hospital EDs or other acute care centers unless they are specifically certified as evaluation and treatment centers (and no one in this case contended that they were certified). It also noted that the ITA prohibits any correctional institution or facility, or jail, from being certified as an evaluation and treatment facility.7
Finally, the DSHS argued that utilizing the "single bed certification" to board psychiatric patients in an ED to avoid overcrowding certified facilities was allowed by both the ITA and its implementing regulations.22 The court stated flatly that the act itself does not authorize single bed certifications to avoid overcrowding certified evaluation and treatment facilities. It did agree that the regulations allow single bed certifications, but only under specific circumstances, and only after a properly qualified agent of the mental health division, in the exercise of professional judgment, determines that those circumstances have been satisfied in each individual case.23
The request for single bed certification must describe why the patient requires medical services that are not available at a certified facility, such as dialysis or chemical dependency treatment, or why being at a non-certified facility would facilitate continuity of care in the patient’s best interest.23
In the cases before the court, it was evident that the requests for the single bed certifications were not medically justified or the result of an exercise of professional judgment about the needs of the individual patient. Instead, they were based solely on the fact that there were no beds at the certified facilities, and they were routinely approved by the state without knowledge or inquiry concerning whether there was a medical justification for involuntarily detaining that particular patient outside of a certified facility.13
Thus, the court found that the ITA authorizes single bed certifications only for reasons individual to the patient that are delineated in the law, but not because there is a generalized lack of space at certified facilities.13
Court’s Conclusion
Accordingly, the court therefore affirmed the trial judge’s ruling that "the Involuntary Treatment Act does not authorize psychiatric boarding as a method to avoid overcrowding certified evaluation and treatment facilities."13
Aftermath from the Court’s Decision
The next day DSHS and its designated mental health professionals planned to begin releasing committable patients from EDs if there were no beds available in certified facilities, instead of boarding them involuntarily on 72-hour stays in the ED as they had been doing. Fortunately, the Attorney General and the Governor’s office convinced them to hold off as the stakeholders negotiated a solution. Within two weeks afterwards a broad coalition, including DSHS, the state attorney general, hospitals and physician groups, the legislature, and the governor packaged a plan together to beseech the court for more time to comply.24 The court granted their request, deferring the effective date from August 27 to December 26, 2014.25
It offered no reasons why it allowed the delay, but the immediate concrete actions taken by DSHS and the state must have factored favorably in the decision. These efforts included:
• DSHS immediately funded 10 new beds at the state psychiatric hospitals;
• DSHS amended its regulations on an expedited basis to authorize single bed certifications in residential treatment facilities (which, unlike EDs, could provide appropriate psychiatric intervention);
• Governor Jay Inslee and DSHS collaborated to identify and arrange funding for an additional 125 beds to be made available over the next 120 days (the governor authorized an additional $30 million for mental health services, although still more funding will be needed through the normal legislative process).
Comment
In reading press releases, media reports, pundit comments, and hospital/physician briefs to the court, it seems there may be a massive misunderstanding of the court’s ruling. It does not mean, as reported in the press or as stated in one brief asking the court to delay is ruling, "Without a stay, patients in need of court ordered psychiatric care will be released without treatment;" or "Persons who present a likelihood of serious harm to themselves or others will be required to be released immediately, regardless of whether they have a safe place to go."5,24 Hogwash!
Note the court’s conclusion very carefully: "The Involuntary Treatment Act does not authorize psychiatric boarding as a method to avoid overcrowding certified evaluation and treatment facilities." The ruling means that the state is prohibited from boarding involuntarily detained psychiatric patients in EDs, and instead it must move those patients into its certified evaluation and treatment facilities, regardless of whether those facilities are overcrowded. In other words, instead of boarding and overcrowding hospital EDs, the state must board and overcrowd its state certified psychiatric facilities.
The Washington Supreme Court decided this very issue years ago in the case of Pierce County v. Western State Hospital.26 Western was then, and is today, a Washington state psychiatric hospital. It was in danger of losing its Medicare certification due to staffing issues, so the hospital established an admissions control policy and refused to admit patients beyond its bed capacity until ordered to do so by the high court.
The court in the Pierce County case cited the same two ITA provisions discussed above — the duty to provide "adequate care and individualized treatment" and the duty to do so in "certified" facilities — plus one more that directly governed the issue:
Whenever the designated county mental health professional petitions for detention of a person whose actions constitute a likelihood of serious harm to him- or herself or others the facility providing 72-hour evaluation and treatment must immediately accept, on a provisional basis, the petition and the person. The facility shall then evaluate the person’s condition and admit or release such person in accordance with RCW 71.05.210 (which defines the evaluation, treatment, and disposition duties of the facility).27
Based on the statute, the court ruled the state hospital was required to immediately accept all petitions for detention, as well as the persons on whose behalf the petitions are submitted, regardless of "whether or not such acceptance will overtax the institution’s facilities."28
The court acknowledged that "admission of persons beyond the stated capacity of any of the wards jeopardizes the physical safety of patients and staff and adversely affects the hospital’s ability to adequately treat its patients."26 (The same can certainly be said of boarding and overcrowding the emergency department.) Nonetheless, it determined that the only result dictated by the statute was to overcrowd the certified psychiatric institutions, commenting that "treatment delayed and inadequate must surely be better than no treatment at all."26
Does federal law, the Emergency Medical Treatment and Labor Act (EMTALA), impact enforcement of the ITA? Absolutely. The claim that involuntarily detained psychiatric patients would have to be released immediately when there were no beds in certified facilities if the court didn’t delay implementation of its ruling is a canard.29 These patients were involuntarily committed because they were a danger to themselves or others, which is an emergency medical condition as defined by EMTALA. Thus, the hospital EDs have a legal duty to stabilize that emergency condition, which essentially means preventing the patient from harming him- or herself or others.30 Federal law trumps state law, so even if the ITA or the Washington Supreme Court required hospitals to release patients if there was no room at certified facilities, EMTALA’s duty to stabilize would override the state mandates and require the hospitals to keep the patients until appropriate placement could be arranged.
However, the duty to stabilize does not mean an ED can’t transfer a stable patient to an overcrowded state psychiatric hospital. The briefs state that, "Before a hospital can transfer a patient under EMTALA, the receiving facility must have available space and qualified personnel for the treatment of the patient and have agreed to accept the transfer. If this cannot be arranged because there are no beds available at a certified evaluation and treatment facility, then the hospital must keep the patient until an appropriate transfer can be arranged."5,24 There is a big word missing from this statement: the word "unstable" should be inserted before the word "patient" everywhere in the statement. EMTALA’s "appropriate transfer" provisions only apply to the transfer of unstable patients; they do not apply to the transfer of stable patients.31 So the elements of an "appropriate transfer" — that the receiving facility have available space, qualified personnel, and advance acceptance — are not required for stable patients by EMTALA (may be good medicine, but they are not legally mandated by federal law).
Therefore, once the patient is stable, EMTALA no longer applies, and from that point forward, state law (i.e., the ITA) then governs the care of the involuntarily detained psychiatric patient.32 Accordingly, these stable psychiatric patients can be transferred to overcrowded certified facilities exactly as ordered by the Washington Supreme Court.
The actual statutory definition of "stabilized" under EMTALA reads:
"Stabilized’ means, 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."33
Is it reasonably probable that a suicidal patient will materially deteriorate if sent by secure transport to a nearby certified psychiatric evaluation and treatment center, even one that is somewhat overcrowded? Don’t think so. Would it be better for the patient to be in an overcrowded, chaotic ED with no psychiatric expertise, no therapeutic intervention, and shaky security, or in an overcrowded specialized psychiatric facility with trained mental health professionals, pharmacologic expertise, and specifically tailored safety and security systems that has been certified by the state mental health division as competent to provide psychiatric care?
It’s true that a certain degree of overcrowding at a receiving certified facility would cause an emergency physician to delay transferring a patient to that facility, just as the time/distance of transport to even an uncrowded facility might also give the emergency physician pause. All these issues, as well as the patient’s current medical condition, are factors the emergency physician must take into account in determining if/when an involuntarily detained psychiatric patient is stable under EMTALA, since stability is defined in terms of transfer. But would overcrowding the 14 or so certified hospitals and approximately 10 freestanding certified evaluation and treatment centers in the state by a few patients each really harm patients, render them too unstable to transfer from boarded emergency departments? Don’t think so.
Therefore, EDs could, before the recent Washington Supreme Court ruling, and can right now, before that ruling goes into effect the day after Christmas, require by law that certified psychiatric facilities in the state accept involuntarily detained patients in excess of their stated bed capacity on an immediate basis under the right circumstances. Boarding these patients in the ED has always been illegal in Washington, and it’s entirely reasonable to use the full force of the law to require the state to step up to its responsibilities.
In summary, the state has a legal duty to provide "adequate care and individualized treatment" to anyone it detains involuntarily under the ITA, and must provide that care without delay in a facility that the state has "certified" as capable, competent, and properly staffed to provide the indicated psychiatric care the patient needs.
Conclusion
The problem of providing care to psychiatric patients discussed here can be summed up in a quote from the Washington Supreme Court, not from this 2014 case, but from its original case back in 1982: "Much as the courts may sympathize with the institutions which have to bear the frustration and discomforts of overcrowding, and the patients who go untreated or poorly treated, the problem is one which can be solved only by the Legislature, as it is one of providing for the creation and funding of adequate facilities."26
Unquestionably, this decision by the Washington court will reverberate in the many other states where demand for psychiatric treatment exceeds capacity and ED boarding of psychiatric patients is rampant. Lawyers are no doubt already scouring state constitutions and civil commitment statutes, and implementing regulations to find the machinery that may finally force states to fulfill their duty to provide medically appropriate, compassionate, and timely mental health services to their denizens. n
References
- "Boarding" of psychiatric patients is defined as warehousing psychiatric patients in a hospital emergency department or other non-mental health facility while waiting for an inpatient psychiatric bed or transfer to a psychiatric facility for evaluation, treatment, or admission.
- 2014 ACEP Polling Survey Results, prepared for the American College of Emergency Physicians. April 2014. Available at: http://newsroom.acep.org/ACEP-Emergency-Visits-Up-Since-Implementation-of-ACA.
- Shumacher Group http://schumachergroup.com.
- According to a 2013 analysis by the Seattle Times of the years 2009 to 2012; see also M. Burley. (2011). Inpatient Psychiatric Capacity in Washington State: Assessing Future Needs and Impacts (Document No. 11-10-3401). Olympia: Washington State Institute for Public Policy. http://www.wsipp.wa.gov/reportfile/1093/wsipp_inpatient-psychiatric-capacity-in-washington-state-assessing-future-needs-and-impacts-part-two_full-report.pdf.
- See generally the amici curiae brief filed by the Washington State Hospital Association and others to the state Supreme Court on May 23, 2014, which cites to specific studies of the state’s financing for mental health services. Available at http://www.wsha.org/files/Brief%20of%20Amici%20Curiae%20Washington%20State%20Hospital%20Association%20et%20al%20.pdf.
- ACEP. America’s emergency care environment: A state-by-state report card 2014. http://www.emreportcard.org/. The report card specific to Washington State is at http://www.emreportcard.org/Washington/. The state ranks third worst in the nation for the number of psychiatric care beds with 8.3 per 100,000 people. Nationally, there is an average of 26.1 psychiatric beds per 100,000 people. The Treatment Advocacy Center recommends that each state should have 50 public inpatient psychiatric beds for every 100,000 people in a state’s population. See Torrey EF, Entsminger K, Geller J, et al. The shortage of public hospital beds for mentally ill persons. Arlington, Va: Treatment Advocacy Center; 2008.
- Revised Code of Washington (RCW) Chapter 71.05.
- RCW 71.05.153(1) et seq.
- RCW 71.05.050.
- RCW 71.05.020(11). "Designated mental health professional" (DMHP) is the mental health professional designated by the county to evaluate patients in the ED and determine whether they should be involuntary detained for 72 hours and sent to one of the state’s certified evaluation and treatment centers for evaluation, treatment, and possible commitment.
- RCW 71.05.020(16). Definition of "certified evaluation and treatment ceonter."
- Washington Administrative Code (WAC) 388-865-0526. Single bed certification regulation.
- In the Matter of the Detention of DW et al v. Department of Social & Health Services and Pierce County, No 90010-4, (Washington Supreme Court, August 7, 2014).
- Id. Citing RCW 71.05.153.360(2).
- RCW 71.05.153.360(2). WAC 388-865-0547.
- Nicks BA, Manthey DM. The impact of psychiatric patient boarding in emergency departments. Emerg Med Int. 2012;2012:360306. Epub 2012 Jul 22. Zun LS. Pitfalls in the care of psychiatric patients in the emergency department, J Emerg Med. 2012;43(5):829-835. Magidson PD. The depressing state of psychiatric care in the ED. Emergency Physicians Monthly February 13, 2012.
- RCW 71.05.150(4), .153(1), .210, and .22. There are limited exceptions. The ITA does authorize transfer to a chemical dependency treatment facility if the medical staff determine "that the initial needs of the person would be better served" in one, or to a hospital if the patient’s "physical condition reveals the need for hospitalization." RCW 71.05.210. These are the only exceptions in the ITA itself for involuntarily detaining someone in a 72-hour or 14-day detention outside of a certified evaluation and treatment facility.
- RCW 71.05.020(16). (Emphasis added.)
- WAC 388-865-0541.
- WAC 388-865-0547.
- WAC 388-865-0551.
- See especially Washington Administrative Code 388-865-0526.
- WAC 388-865-0526; accord WAC 388-865-0500.
- http://www.atg.wa.gov/uploadedFiles/JointMtnToStayFINAL.pdf. The moving parties were the appellant State of Washington, Department of Social and Health Services (DSHS), intervener/respondents MultiCare Health System and Franciscan Health System, and amici Disability Rights Washington, National Alliance on Mental Illness Washington, American Civil Liberties Union of Washington, Washington State Hospital Association, Washington State Medical Association, Association of Public Hospital Districts, Northwest Organization of Nurse Executives, Washington Chapter of The American College of Emergency Physicians, Washington State Nurses Association, SEIU Healthcare 1199NW, and the Washington Council of Emergency Nurse Association.
- See Belleisle M. "High court grants stay on psychiatric boarding ban" http://seattletimes.com/html/localnews/2024474125_courtstayxml.html.
- Pierce County v. Western State Hosp., 644 P.2d 131 (1982).
- RCW 71.05.170. This is still the law in 2014 as it was in 1982.
- Pierce County v. Western State Hosp., 644 P.2d 131 (1982). (Emphasis added.)
- The briefs presented to the court did state that in determining whether to discharge or transfer these patients, emergency physicians would "need to consider their conflicting legal obligations under the ITA, the EMTALA, and the best interests of the patient." See references 5 and 24.
- 42 CFR 489.24 et seq. 42 USC 1395dd(e)(3)(B).
- See 42 USC 1395dd(c); and 42 USC 1395dd(c) (2) — definition of an appropriate transfer under EMTALA.
- EMTALA is a limited law. It requires hospitals only to stabilize emergency conditions; it does not require them to treat the emergency conditions. EMTALA leaves to the province of state legislatures to govern health care beyond the immediate crisis related to emergency conditions.
- 42 USC 1395dd(e)(3)(B).
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