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Applying EMTALA to behavioral emergencies
Question: The police present at a busy ED seeking medical clearance for an individual they are holding with a suspected behavioral emergency. The hospital does not offer psychiatric services. The police do not want to wait around for several hours for medical clearance, so they leave the hospital (which is not authorized to hold the patient involuntarily). The emergency physician confirms that the patient is medically stable but has a behavioral emergency condition. The physician calls for a crisis team to write a new hold and assist in arranging placement at a local referral center; however, the crisis team cannot arrive for hours (perhaps many hours). The police consider the transfer to be the responsibility of the hospital. The hospital calls the referral center, but the center does not want to accept the transfer unless the patient is on a hold — that is, legal authority to detain a psych patient involuntarily for a limited period of time. (This refusal may be an EMTALA violation, but this is not much help at the moment of crisis.) Compounding the problem is that the local ambulance company will not accept the transfer of an individual with a behavioral emergency in the absence of a hold because the patient may exercise his/her right to refuse the transfer during transport. And, the patient wants to go home. How should we handle this situation?
Answer: The above scenario, a scene now played out all too often in EDs, illustrates some of the incongruities between EMTALA and patients with behavioral emergencies, says M. Steven Lipton, an attorney with the San Francisco law firm Davis Wright. Since the early days of EMTALA, he notes, the Centers for Medicare & Medicaid Services (CMS) has taken the position that hospitals are not relieved of their EMTALA obligations to screen, treat, or arrange for an appropriate transfer of emergent patients because of prearranged referral centers. As stated in the EMTALA Interpretive Guidelines:
"Hospitals are prohibited from discharging individuals who have not been screened or who have an emergency medical condition to nonhospital facilities for purposes of compliance with state law. The existence of a state law is not a defense to an EMTALA violation for failure to provide an [medical screening exam] or failure to stabilize an [emergency medication condition] …"
But that's the easy part, says Lipton. The hard part, he says, is making EMTALA work for behavioral emergency patients. Unlike most patients with medical emergencies, many hospitals do not offer psychiatric services or have psychiatrists or other behavioral clinicians on their medical staff. In addition, he notes, many states and local authorities have established laws on the detention, evaluation, and treatment of individuals who are a danger to themselves or others. Many of those laws fail to consider the EMTALA obligations in their application, such as:
Some hospitals, Lipton notes, have been cited for EMTALA violations for failing to make an appropriate transfer when peace officers or crisis teams, having custody of behavioral patients under a legal hold, transport behavioral patients from an ED to a referral center. In addition, he says, the EMTALA rules permitting patients to refuse further evaluation, treatment, or transfer do not specifically address the rights of behavioral patients under state law holds, or worse, patients who dangerous to self or others who are not under a legal hold.
There is help on the way, says Lipton, noting that the EMTALA Technical Advisory Group (TAG), charged with giving input to CMS on EMTALA standards, is considering the application of EMTALA to behavioral patients. He hopes the TAG will propose more thoughtful guidance and direction as to how behavioral emergency patients should be treated under EMTALA.