A South Carolina-based company called AnMed Health recently settled an EMTALA case for a record $1.29 million. ED Legal Letter recently spoke with Sandra Sands, senior counsel at OIG who served as the lead attorney on the case, about psychiatric patients and EMTALA.

  • On the record-breaking EMTALA settlement:

We got to such a big penalty because there was evidence of so many incidents where AnMed hadn’t met its responsibility under EMTALA. And that’s not surprising, given the longstanding policy they had that patients who were involuntarily committed would not be given access to the full capabilities of the hospital, which included on-call psychiatrists and a psychiatric unit. For each one of these presentments, there were beds available in that unit. So there was a policy that, on its face, I would suggest would lead to the hospital not meeting its obligations.

The hospital corrected the underlying problem, which was a policy that led to not meeting their obligations to numbers of patients. They also ended up looking at the issue of the incredible need in the community for psychiatric patients and plan to double the number of beds they had in the psychiatric unit. It was a particularly positive reaction in some respects, in trying to bring more services to this needy population.

  • On what EDs should be looking at regarding care of psychiatric patients:

There are a lot of nuances involved to the application of the statute when it comes to psychiatric presentments. The critical question I think a hospital needs to ask itself, in terms of whether they are meeting their obligations under EMTALA, is whether the hospital is bringing the necessary services to stabilize these individuals with emergency medical conditions within the full capabilities of the hospital. It’s not just what’s available on a daily basis in the ED, per se, but the entire hospital system.

That typically would mean access to on-call physicians, if they were appropriate to be called in for stabilization of psychiatric emergencies, and whether there are other services available, which in this case had to do with inpatient services. Sometimes, those services are available because there is a specified unit that is set up to deal with that particular kind of emergency medical condition. Other times, it’s because there are swing beds in a hospital that can be used for various kinds of emergencies. But under the law, it’s incumbent upon a hospital to use its full capabilities to meet the needs of that patient. So, the primary takeaway from this case is that hospitals have to use their full capabilities to stabilize patients.

Another issue that came up in this case was patients who had involuntary commitments and didn’t have financial resources. There was a policy that an attending physician could write an order for the local mental health center to evaluate the patient for commitment to a state mental health system. I’m not sure how the hospital was interpreting that, but EMTALA requires the hospital to stabilize not only any medical condition that may be present but also psychiatric emergency medical conditions.

If the hospital can’t, if it doesn’t have the capabilities to do that, the statute provides for an appropriate transfer to a facility that is capable. But when that hospital is capable of doing it, under EMTALA, that hospital has to do it. In order to meet its full obligations under EMTALA, the hospital must use its full capabilities to stabilize both the medical and psychiatric aspects of a patient’s medical condition. Transfers that happen without that hospital’s capabilities being utilized first would be potentially an abrogation of the hospital’s responsibilities under EMTALA.

We all know there is a real dearth of resources for this population in many areas of the country. Localities and states have gotten together to try to come up with plans to best meet the needs of these patients, which often involves community health workers and transfer plans. Those kinds of efforts are important. However, we’ve had more than one case in which a hospital might try to substitute a community plan for its own capabilities. And that’s where the hospital could get into trouble in not meeting its obligations under EMTALA.

The hospital needs to do whatever is within its capabilities. If its capabilities are to stabilize, it needs to stabilize, and then it can take advantage of local and state facilities to help meet the medical needs of that patient.

  • On boarding of psychiatric patients in the ED:

There are situations in which the hospital doesn’t have the ability to stabilize, so the responsibility is to effect an appropriate transfer. That leads to patients potentially being in the ED.

It’s also possible that the hospital could keep those patients someplace other than the ED, but the main thing is that they are bringing the services that are available. For that to happen in the ED when they don’t have the capabilities, and then effect an appropriate transfer — in general, that would be a permissible practice.

Even if a hospital has made the appropriate decision that somebody is suffering from an emergency medical condition, and it’s appropriate to transfer that individual, it’s really important that the person is re-evaluated before the transfer happens. That’s a practice that should occur because of the potential, no matter what the problem is, of further deterioration. It could be that there is further stabilizing treatment that is needed to minimize the risks of transfer that needs to occur before the person is actually transferred.

It’s also really important that when information is brought by anyone, by observation or otherwise, that the patient’s condition may have deteriorated, for the patient to be re-evaluated, not only in terms of the transfer but also what the hospital can do to stabilize the condition.

  • On medical screening examination for psychiatric patients:

When somebody presents with an apparent psychiatric emergency medical condition, the hospital needs to, within its capabilities, evaluate that psychiatric presentment. The hospital also has to do an appropriate medical screening examination as to what could be the medical presentment.

There are a number of really important reasons for this. Psychiatrists have said to me a number of times over the years that they think the majority of people who present to a hospital ED with apparent psychiatric behavioral issues — the etiology is actually medical. Somebody having an adverse reaction to a medication is a common example. So, it’s very important to look at both sides of this.

In the enforcement of EMTALA, a number of cases that we’ve had over the years involve somebody being treated as a psychiatric patient because of behavioral symptomology, and not getting the appropriate medical screening examination that is also required under the statute.

That is obviously not appropriate. The patient may be found stable from the medical side of it, but still show signs of a medical condition that is psychiatric. The hospital’s obligations have not been met until the hospital does what it needs to do within its capabilities to stabilize that psychiatric condition. If they can’t stabilize it, then the hospital needs to make arrangements for transfer to a facility where that can be dealt with.

  • On receiving hospitals’ obligations under EMTALA:

Psychiatric hospitals that don’t have EDs are still required, if they are a Medicare provider, to meet their obligations under EMTALA. What that means is if a hospital has a patient that needs the capabilities of a psychiatric hospital to stabilize that condition, the psychiatric hospital is obligated under EMTALA to accept an appropriate request for transfer — unless it doesn’t have the capacity to do so. And I’ve never had a case where lack of capacity has been proven to be true.

The other issue in terms of “failure to accept” is related to communication. A hospital can minimize the risk of not meeting its obligations under EMTALA by having policies and procedures that address time-sensitive issues. For example, if an on-call physician refuses to accept a transfer, there should be policies and procedures for that decision to be evaluated by either the head of the ED or other administrators right away. The hospital might then be able to protect itself in real time from a decision that an individual practitioner made, that the hospital needs to get reversed, or to do something else to meet the obligations to the patient.

The other thing hospitals should be careful about is that many on-call specialists describe their capabilities along the lines of what they would like their practice to be, or what their practice is as a general matter. But under EMTALA, their capabilities are going to be evaluated in terms of their training and what it is that they can do, not just what they choose to do.

It may be something that in general is not done by the doctor or the hospital, but the capabilities are such that it really can do it. When it’s being reviewed by medical experts and the quality improvement organization, they’re going to be looking at the actual capabilities of the physician and the hospital.