Protecting Your Organization and Your Patients: Complying ... · ©2015 Hancock, Daniel, Johnson & Nagle, PC • hdjn.com • Any department or facility of the hospital, whether located

©2015 Hancock, Daniel, Johnson & Nagle, PC • hdjn.com

Protecting Your Organization and Your Patients: Complying with EMTALA and Virginia Civil Commitment Laws

Mary C. Malone Hancock, Daniel, Johnson & Nagle, PC

November 4, 2016


EMTALA is celebrating its 30th anniversary too!

2


• Upon presentation at a hospital’s “dedicated emergency department,”

• Upon presentation anywhere on the “hospital property,” • In a ground or air ambulance that is owned and operated by

the hospital at any location, or • In a ground or air ambulance not owned by the hospital, but

on “hospital property.”

Where Does EMTALA Apply? EMTALA is triggered by a request for treatment.

3


• Any department or facility of the hospital, whether located on or off the main hospital campus, that meets at least one of the following requirements: 1. Licensed by the state in which it is located under applicable

state law as an emergency room or emergency department; 2. Held out to the public as a place that provides care for

emergency medical conditions on an urgent basis without an appointment; or

3. Provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously-scheduled appointment.

Dedicated Emergency Department CMS Definition

4


• Labor & Delivery • Urgent Care Clinics • Psych Units

Dedicated Emergency Department In addition to the “ED proper,” DEDs often include:

5


• Appropriate Medical Screening Examination (MSE) • Stabilization of the Emergency Medical Condition (EMC) • Transfer to Another Facility

EMTALA Basic Requirements

6


• Qualified Medical Personnel – Persons defined in the Hospital Bylaws or Medical Staff Rules

and Regulations. – Cannot be informally delegated by the ED physician or the ED

medical director. – Does not include CSB personnel.

Medical Screening Examinations Who is Allowed to Perform MSEs?

7


• Will vary depending on presenting patient’s symptoms. • Must be reasonably calculated to determine whether an

emergency medical condition exists. • Must be applied in a nondiscriminatory manner. How

might this apply to behavioral health patients?

Medical Screening Examinations When is a Medical Screening Considered “Appropriate?”

8


• Must utilize all resources available. • Twofold process: Must provide a medical screening

examination (first) to rule out organic causes of behavioral disorders, then psych screening.

• Medical records should indicate an assessment of suicide or homicide attempt or risk, orientation, or assaultive behavior that indicates danger to self or others.

• Is a psychiatrist’s consult required?

Psychiatric Screening

9


• Includes any behavioral health condition which creates a threat of potential harm to the patient or others.

• Examples include patients presenting as suicidal or homicidal, depressed or isolated, delusional, assaultive, self-destructive, etc.

• Key is presence of threat to self/others.

Emergency Medical Conditions Psychiatric

10


• The Patient must be: – Stabilized and/or – Appropriately Transferred

Emergency Medical Conditions EMC Present

11


• Equipment • Staff • Services • Physician Specialists (which might include behavioral

health providers)

Stabilization Use of Routinely Available Services

12


• Requires removing the threat of harm to self or others. • May require admission or some reasonable period of

observation/detention. – Note that boarding of psychiatric patients in EDs has become a

significant problem. – Until a patient has been stabilized, admitted or transferred,

EMTALA applies. Thus, an admission order with admission pending for a period of time may be problematic.

Stabilization Psychiatric Patients

13


• Substance abuse may be considered a behavioral health disorder.

• Remember that an intoxicated patient may not be considered stable.

• You may not be able to properly screen a patient until the patient is no longer intoxicated.

• Patients who are intoxicated may have impaired capacity and can be a challenge with respect to AMA discharge or LWBS.

Intoxicated Patients

14


• If the hospital offers a service to the public, the service should be covered on call.

• For example, if the hospital advertises a cardiology program, it would be expected that the hospital has 24/7 call coverage for cardiac patients.

• Hospitals are given discretion to provide sufficient call services to meet community need (but think “expectation”).

• Does your hospital provide psychiatric services? What is your call coverage for psychiatry? Psychiatry should be treated like any other service line.

Call Coverage Scope of Services

15


• Call schedule must be reasonable, given a particular hospital’s circumstances.

• For example, if a hospital has only one psychiatrist on staff,* there may be some days where there is no psych coverage.

• Again, consider community expectations and the need for transfer agreements.

*NOTE: If you have a psychiatric unit, then there is likely an expectation that there is always a psychiatrist on the call list.

Call Coverage Scope of Call Duties

16


• Failure of hospital on-call systems is one of the most frequently cited violations of EMTALA.

• Penalties affect both hospitals and physicians for call failure (i.e., civil monetary penalties, termination from Medicare, civil suits, quality investigations, peer review actions).

• If patient is transferred because the on-call physician does not appropriately respond, hospital must send name of the physician to the receiving hospital.

Call Failures

17


• The law undeniably provides the highest authority under EMTALA to the ED physician.

• If an on-call physician refuses the request of an ED physician to provide a consultation, on site screening or stabilizing treatment of a patient with an emergency medical condition, EMTALA is violated.

• If the on-call physician disagrees with the ED physician, the on-call physician should respond to call timely & address through medical staff channels.

Authority ED Physician

18


• It depends. It will vary based on circumstances, but will be largely driven by whether the ED physician feels that it is appropriate to hand off the patient to the psychiatrist (i.e., a suicidal patient without medical issues).

The Psych Patient Who has Responsibility - ED Physician or On-call Physician?

19


• Geographic Transfer Concerns--you cannot refuse because another hospital is closer. (Even when it makes clinical sense.)

• On-call physicians must accept appropriate transfers whenever the hospital is required to accept the transfer, regardless of private practice obligations.

• Transfers should only be refused if the hospital is unable to provide necessary care. (Think capability and capacity!)

Transfers Receiving

20


• Hospitals with specialized capabilities or facilities and capacity to treat cannot refuse to accept a proper transfer.

• Having psychiatric services may be considered specialized capabilities. This is true of psychiatric hospitals without Emergency Departments.

Transfers Specialized Capabilities

21


• Mode of Transport must be carefully considered. – Private Car? – Ambulance? – Staff? – Chemical or Physical Restraints?

Note: Use of restraints for transfer arguably does not stabilize the psychiatric EMC.

Transfers Psych Patients

22


• This can be a “rub” in situations where the patient is being transferred under a temporary detention order (TDO).

• Hospital is required to secure a safe and appropriate transfer—not the Community Services Board (CSB).

• Goal is for Hospital to use CSB as a resource for placement and to discuss desired facility and mode of transport with CSB prior to request for TDO going to magistrate.

Transfers Psych Patients

23


• If a behavioral health patient is determined to have an emergency medical condition but wants to leave the hospital against medical advice, you might have to obtain a legal hold.

• Legal holds include Emergency Custody Orders (ECOs), Temporary Detention Orders (TDOs), and Orders for Involuntary Commitment.

• If you cannot obtain a legal hold, you may need to contact law enforcement.

• Consider the “Duty to Warn.”

Legal Holds

24


• Support the efforts to facilitate the process for obtaining TDOs and Civil Commitment Orders. Hospital has the “EMTALA card” to play when requesting another hospital to accept the transfer of a TDO patient with an EMC (including the state psychiatric hospital).

• Must be “secondary” to hospital: Hospital physicians must agree on assessment and disposition of patient.

• Cannot force hospital to discharge patient. • Should not decide on appropriate mode of transport.

Community Services Board (CSB) CSB Role

25


• The potential for ETMALA compliance shortcomings is great in the following areas: 1. ED Physician responsibility for providing appropriate medical

screening exam, including mental health screening. 2. ED Physician responsibility to exercise independent medical

judgment for disposition and appropriate transfer of the patient. 3. Arranging for appropriate transport for any patient who must be

transported to a TDO facility. 4. Ensuring that patients’ medical conditions are stabilized within

the hospital capability and capacity before transferring patients to a TDO facility.

TDO Process EMTALA Compliance

26


• “Hospitals located in those states [like Virginia] which have state/local laws that require particular individuals to be evaluated and treated at designated facilities/hospitals may violate EMTALA if the hospital disregards EMTALA requirements and does not conduct an MSE and provide stabilizing treatment or conduct an appropriate transfer prior to referring the individual to the state/local facility.”

EMTALA Interpretive Guidelines

27


• Psych services are at a premium and services are spread thinly.

• Behavioral health patients can be manipulative—don’t quickly discharge patients with suicidal/homicidal ideations who now claim to be “fine.”

• Admissions cannot be limited during certain hours or denied based on suspect admission criteria (i.e., “no admissions after 5:00 p.m.” or “no violent patients”).

EMTALA Special Challenges for Psych Patients

28


• CSBs are responsible for conducting the psychiatric portion of the medical screening exam for patients who present with a behavioral health emergency.

• State psychiatric hospitals cannot accept an otherwise medically stable patient who is receiving ongoing treatment such as dialysis.

• If no private facility is willing/able to accept a patient pending a TDO request and the ECO expires, the patient must be discharged.

• In the scenario above, the hospital and emergency department physician are protected from EMTALA liability because of the state commitment laws.

EMTALA Myths About Psych Patients

29


• Once a patient is determined to have an emergency medical condition of a psychiatric nature, the CSB should be called for a TDO assessment.

• All TDO patients must be transferred by law enforcement in a squad car.

• A magistrate considering the appropriateness of a TDO for a behavioral health patient does not have to take into account the medical judgment of the attending physician.

• If a patient is subject to a TDO, the ED or attending physician is no longer able to weigh in on where the patient will be transferred and how the patient will be transported.

EMTALA Myths About Psych Patients

30

www.hdjn.com | (866) 967-9604 ©2015 Hancock, Daniel, Johnson & Nagle, PC

Mary Malone Hancock, Daniel, Johnson & Nagle, PC

Questions

31

Protecting Your Organization and Your Patients: Complying ... · ©2015 Hancock, Daniel, Johnson & Nagle, PC • hdjn.com • Any department or facility of the hospital, whether located

Documents