One in five settlements related to EMTALA violations involved psychiatric emergencies, according to a recent analysis of 230 EMTALA-related civil monetary penalty settlements from 2002 to 2018.1
“Prior work by our group had shown that about one in six EMTALA violations were related to psychiatric emergencies,” says Sophie Terp, MD, the study’s lead author.2
Several large, heavily publicized EMTALA-related settlements related to psychiatric emergencies were the impetus for the second study. “We decided to systematically evaluate characteristics of EMTALA-related civil monetary penalty settlements related to psychiatric emergencies, and how these differed from settlements not involving psychiatric emergencies,” says Terp, an assistant professor of clinical emergency medicine at Keck School of Medicine at University of Southern California. Some key findings:
- The average settlement for psychiatric-related penalties was $85,488 vs. $32,004 for non-psychiatric-related cases;
- Five of the six largest settlements were related to cases of psychiatric emergencies;
- The three largest settlements all involved psychiatric emergencies;
- Failure to provide an appropriate medical screening exam (MSE) was cited in more than 80% of settlements involving psychiatric emergencies.
“Many providers are simply unaware of requirements with regard to psychiatric patients,” Terp says.
Some hospitals were cited because patients presented to the ED with a psychiatric issue and were directed to a facility with psychiatric services that took their insurance, with no MSE documented. According to Terp, in several cases, a person with a behavioral health issue arrived at an ED in the custody of law enforcement, became disruptive, and was transported to prison at the direction of the ED provider — but no MSE was recorded.
Other commonly cited deficiencies involved failure to provide stabilizing treatment (68%) or arrange appropriate transfer (30%). Failure to provide stabilizing treatment was more common among cases involving psychiatric emergencies (68% vs. 51%).
In some cases, patients came to EDs with psychiatric history, complaints, or behaviors, along with concurrent medical emergencies. These patients were not stabilized before discharge or transfer to an inpatient psychic facility. One such case involved a patient who was hypotensive with arrhythmia after suicide attempts. The patient was transferred to an inpatient psychiatric unit with limited medical capabilities, then was transported to another hospital for medical care. “Another hospital was cited for failure to stabilize a psychiatric patient who was allowed to elope in blizzard conditions in a hospital gown,” Terp reports.
Terp says she was surprised by some CMS determinations made in one case. In response to media reports of psychiatric patients boarding for up to 38 days in an ED, CMS launched an EMTALA investigation at a hospital in the Southeast.
After reviewing hospital records, investigators identified 36 EMTALA violations. The hospital subsequently entered into a $1.2 million civil monetary penalty settlement agreement with the Office of Inspector General. The hospital was cited for not directing on-call psychiatrists to participate in MSEs and for not providing daily stabilizing treatment for patients on involuntary holds in the ED.
“Perhaps most surprisingly, the hospital was cited for failing to utilize available beds in their inpatient behavioral health unit to stabilize patients boarding in the ED on involuntary holds,” Terp says. By policy and practice, the inpatient behavioral health unit had accepted only voluntary admissions for many years.
According to Terp, this case highlights the need for hospitals with inpatient behavioral health units to re-evaluate exclusions to their admission policies. This is especially important if there are available inpatient beds and affiliated EDs are boarding patients with psychiatric emergencies.
Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant, says, “This was a complex case in which CMS was apparently trying to make a point with regard to boarding psychiatric patients.”
As for what EDs should do, Taylor says it is “the same thing they would do if they had more heart attack cases than they had resources for.”
Solutions differ, depending on many factors. “But you cannot just ignore the situation, which is what many hospitals do when it comes to psych boarding,” Taylor laments.
Considering the study’s findings, Terp says hospitals should educate all ED providers and staff on these EMTALA requirements as they pertain to patients with psychiatric issues:
• EMTALA applies to psychiatric emergencies. Therefore, any patient presenting to a facility with a dedicated ED requesting evaluation is entitled to a MSE (and/or, if indicated, a psychiatric screening exam) to evaluate for the presence or absence of a psychiatric emergency.
• Many psychiatric evaluation areas and OB triage units are considered dedicated EDs. “Anyone staffing these areas should be aware of EMTALA requirements for patients presenting with medical and psychiatric complaints,” Terp says. This may include psychiatrists, obstetricians, advanced practice providers, nurses, and other providers.
• On-call mental health specialists should be involved in the care of patients deemed to have psychiatric emergencies while they are boarding in dedicated EDs. Hospitals should consider policies requiring daily evaluation of psychiatric patients boarding in the ED for stabilizing treatment, Terp advises. Ideally, this should take place until admission or appropriate transfer can be arranged (or until the patient is deemed stable for discharge).
Once it is determined the patient requires inpatient care, it is usually prudent to involve specialists to manage the ongoing care just like any other illness, Taylor says. “But what if your hospital does not have any psych services, and there is no readily available place to send them?” he asks. “Now, you have to get creative.”
Psychiatric care in the ED is “arguably the most difficult challenge for emergency medicine from an administrative perspective,” Taylor argues.
One reason is the lack of inpatient services, especially for adolescents. The result is that patients in need of inpatient psychiatric care often are stranded in EDs for days or even weeks awaiting an available bed. “Most EDs are ill-equipped to manage ongoing acute mental health,” Taylor adds. “Patients languish, receiving subpar treatment or no real treatment at all.”
There often is no suitable space and no psychiatric specialists. “All of this has not been lost on CMS, which has taken an increasingly aggressive approach in an attempt to assure patients in this situation receive appropriate care,” Taylor says.
There are a few reasons why hospitals land in trouble with EMTALA, including the fact that defining what constitutes a psychiatric emergency medical condition “is difficult and often subjective,” Taylor notes.
Providers do not always consider mental health as a “medical condition,” even though a reading of EMTALA shows “it clearly is,” according to Taylor. Exacerbating the issue: Some psychiatric hospitals often attempt to skirt EMTALA obligations by sequestering beds, thus limiting capacity.
Some mental health patients cannot cooperate with the required elements of an EMTALA transfer. On a related note, psychiatric specialists often do not understand or cooperate with on-call EMTALA duties and are reticent to manage patients held in the ED. “Mental health patients require an inordinate amount of resources and time, two commodities lacking in the ED,” Taylor notes.
Taylor says EDs need to develop policies, procedures, and resources to ensure EMTALA compliance for mental health patients while working with the local mental health community to ensure adequate follow-up. “A lack of good community resources often leads to ED overutilization,” he says.
Further, Taylor says EDs should address mental health emergencies with the same vigor as trauma, cardiac, and stroke episodes. “It is as deadly, and fraught with more liability,” he cautions.
- Terp S, Wang B, Burner E, et al. Civil monetary penalties resulting from violations of the Emergency Medical Treatment and Labor Act (EMTALA) involving psychiatric emergencies, 2002 to 2018. Acad Emerg Med 2019;26:470-478.
- Terp S, Seabury SA, Arora S, et al. Enforcement of the Emergency Medical Treatment and Labor Act, 2005 to 2014. Ann Emerg Med 2017;69:155-162.