EXECUTIVE SUMMARY

A record $1.29 million EMTALA fine involved psychiatric patients boarded in the hospital’s ED for extended periods, and the Office of Inspector General is expected to continue focusing on this area. EDs should be aware:

  • The hospital cannot offer a psychiatric unit and then impose limitations on admission.
  • Hospitals cannot provide different levels of care to boarded patients than what is provided to inpatients.
  • Psychiatric patients can be placed in general medical beds with direct staff supervision.

Psychiatric patients are held routinely in EDs for hours, days, or even weeks due to lack of available facilities. Few would argue it’s a high-risk situation for the patient, EPs, and the hospital; yet, the dangerous practice continues.

Now, a record $1.29 million Emergency Medical Treatment and Labor Act (EMTALA) fine has sent a strong message. “Relative to prior fines, this is huge and surprising. It definitely can be expected to change how EDs function,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.

The EMTALA case involved 26 patients with unstable psychiatric conditions who presented to a South Carolina ED. The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) alleges EPs issued involuntary commitments on the patients and boarded them in the ED for six to 36 days, despite open beds in the hospital’s psychiatric units. (Read the interview in this issue with an OIG attorney for more information about the case and EMTALA obligations for psychiatric patients.)

“The hospital cannot have a psychiatric unit and then impose limitations on admission,” Frew warns. In this particular case, the hospital only accepted voluntary admissions to its psychiatric unit. All involuntary admission cases were boarded in the ED.

“The second issue from OIG’s perspective appears to be that the on-call psychiatrists were not called in to evaluate or render care to the boarded patients,” Frew says. Therefore, the hospital potentially provided a different level of care to boarded patients than that provided to patients admitted to the unit. This is contrary to EMTALA. “CMS has repeatedly stated that psychiatric patients can be placed in general medical beds with direct staff supervision,” Frew adds.

Sudden Jump in Intensity

The large number of ED patients involved in the South Carolina case contributed to the record-setting fine. “Many other cases have had high case numbers, but never crossed the $400,000 mark,” Frew explains. “This sudden jump in intensity came as a surprise to many of us who follow EMTALA.”

This case parallels the recent trend of larger fines handed down in suits related to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Frew says. “Average cases have jumped to $1 million after an initial history of lower fines.”

OIG recently made inflation adjustments to its fine structure. The aggravation and mitigation factors determining the amounts of fines for all cases were changed. “Some sources in the industry have theorized that the changes are for revenue generation, or for a more punitive approach to fines,” Frew offers. For hospitals that lack psychiatric units or staff psychiatrists, Frew says “this case could be viewed as a hurricane on the horizon.” Often, these EDs are unable to find accepting hospitals for the transfer of psychiatric patients. Thus, EDs end up boarding the patients for extended periods.

ED visits related to mental disorders increased substantially (56% for depression, anxiety, or stress reactions, and 52% for psychoses or bipolar disorders) between 2006 and 2013, according to the Agency for Healthcare Research and Quality.1

It is not yet clear whether OIG will fault all boarding of psychiatric patients in the ED, or only those cases where the hospital has psychiatric beds. “But I would not rule out the more sweeping approach,” Frew cautions.

‘Huge Potential’ for Violations

In light of the recent EMTALA settlement, EDs must re-evaluate all policies for psychiatric patients, urges Mark Kadzielski, JD, a partner in the Los Angeles office of BakerHostetler who specializes in EMTALA compliance.

“The concept of boarding, or as I call it, warehousing patients, is problematic,” Kadzielski says. “It creates a huge potential for violations of EMTALA.” This is particularly concerning for patients with unstable psychiatric conditions, but holds true for all ED patients. “Holding any patients, whatever their condition or diagnoses, waiting for transfer, or waiting for a bed, in the ED, creates the potential for an EMTALA violation,” Kadzielski explains.

Once a patient is admitted, EMTALA no longer applies. “But if the patient is in the ED and has not been admitted to the hospital and is boarded for whatever reason, it’s a real EMTALA risk,” Kadzielski says.

Patients with psychiatric emergencies can slip under an ED’s radar easily. “If a person is bleeding and bandaged from a gunshot wound in the hallways waiting for a bed, that’s obviously a big red flag,” Kadzielski says. A person who arrives with a psychiatric emergency might be sitting on a gurney looking off into the distance and appear perfectly fine physically. “But the person who’s mumbling and twitching over in the corner poses the same kind of risk under EMTALA as the person who’s physically injured,” Kadzielski stresses.

In the South Carolina case, the OIG looked at the boarding of psychiatric patients over several months. This led investigators to discover that many others were held in the ED for significant periods. “It was a very thorough, extensive, and broad investigation that resulted in this record fine,” Kadzielski notes.

For plaintiff attorneys, the OIG settlement is a possible negotiating tool to use during malpractice litigation. “Certainly, there will be new opportunities for plaintiff attorneys to say, ‘This kind of care has been punished by the government, so give us money now,’” Kadzielski says.

Plaintiff attorneys might be more likely to file lawsuits against EPs and hospitals on behalf of psychiatric plaintiffs who were boarded in EDs. “But those cases are going to have to be evaluated on their merits. Just because they’re similar to this type of case doesn’t mean they have merit,” Kadzielski notes. From a risk management perspective, EDs can use the record-breaking EMTALA fine as a teaching tool. “EDs across the country should say, ‘Hey, look at what happened here in this case. What are we doing here in our ED? Let’s rethink our approaches and practices,’” Kadzielski offers. He says EDs should evaluate these two things:

  • what resources, capabilities, and capacities the hospital has;
  • what resources, capabilities, and capacities the community has.

“Recognize that, when these patients present, they are going to challenge the creativity of the ED leadership to deal with them in the best possible way,” Kadzielski notes.

Boarding patients in the ED, when psychiatric beds are available in house where patients could be getting standard of care medical treatment, says Kadzielski, “just doesn’t make a lot of sense. Clearly, the resource issue is what’s important.”

Some EDs are in an acute care hospital without psychiatric beds. The surrounding community also may lack adequate resources. In that case, says Kadzielski, “You’ve got to look at creating relationships with other hospitals in the surrounding community and beyond.”

If the EP is told that the wait is X number of hours or X number of days for an available bed in the community, this is important to document.

“The other critical thing that EDs don’t realize they have to do is to document vital signs on a regular basis. Patients can go south pretty fast while awaiting transfer,” Kadzielski warns. A psychiatric patient might be stable at a certain point in time, but this can change. If no one in the ED notices that his or her condition deteriorates, a bad outcome can occur.

“The last thing you want to do is have the patient being boarded far away on a distant gurney because they are ‘stable for transfer,’ and have them code,” Kadzielski says.

REFERENCE

  1. Weiss AJ, Barrett ML, Heslin KC, et al. Trends in emergency department visits involving mental and substance use disorders, 2006-2013: Statistical Brief #216, December 2016. Agency for Healthcare Research and Quality, Rockville, MD.

SOURCES

  • Stephen A. Frew, JD, Vice President, Risk Consulting, Johnson Insurance Services, Loves Park, IL. Phone: (608) 658-5035. Fax: (800) 516-3210. Email: sfrew@medlaw.com.
  • Mark Kadzielski, JD, BakerHostetler, Los Angeles. Phone: (310) 442-8815. Fax: (310) 820-8859. Email: mkadzielski@bakerlaw.com.