Hospitals May Need Psych Staff for Emergency Treatment Rules

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By Matthew Loughran

Emergency doctors who treat patients facing mental health emergencies should call upon their hospitals’ available resources to stabilize those patients, officials from the agencies that enforce federal emergency treatment laws said Oct. 29.

Mary Ellen Palowitch, a hospital analyst at the Centers for Medicare & Medicaid Services in Baltimore, and Sandra Sands, an attorney with the Office of Inspector General for the Department of Health and Human Services in Washington, emphasized the federal Emergency Medical Treatment and Labor Act (EMTALA) requires a hospital to do everything within its capabilities to stabilize mental health emergencies before considering transferring those patients for treatment at a psychiatric hospital.

“EMTALA requires hospitals with emergency departments to provide a medical screening examination within the capabilities of their hospital by a person that’s qualified to do the examination using all the capabilities of the hospital to determine whether or not there is an emergency medical condition,” Palowitch told a gathering of emergency doctors at the American College of Emergency Physicians’ annual meeting in Washington.

She added that a hospital is expected to have an on-call list of physicians who could be asked to help with these examinations and that list is expected to reflect the full range of services available at the hospital. As a result, she said, if the hospital offers psychiatric services, the on-call list should include a psychiatrist who can be reached for emergency screening purposes.

Stabilization Question

Palowitch and Sands were participating in a panel discussion on mental health treatment and EMTALA enforcement and faced fierce questioning from the audience as well as moderator Robert Bitterman, an emergency physician and health lawyer from Sarasota, Fla.

The doctors in attendance seemed primarily concerned with Palowitch’s assertion that a suicidal patient can’t be considered stabilized for EMTALA purposes if he remained suicidal.

“EMTALA requires that you provide stabilizing treatment, even though the patient is going to be transferred, within the capabilities of your hospital,” Palowitch said.

“The way [the CMS] would look at that is to say, you’re not going to provide the inpatient treatment here, but while we are waiting, we have a psychiatrist on staff and we can reach out to them or call them in to potentially stabilize the patient ensuring that while they are waiting in the emergency department or staying in the emergency department they are receiving care,” she added.

Bitterman and some of the doctors in the room asked whether sedating patients or restraining them in such a way that they couldn’t hurt themselves or others would suffice as stabilization for purposes of EMTALA prior to a transfer.

Palowitch said such artificial restraint of a suicidal person didn’t remove the underlying suicidal tendency and thus wouldn’t relieve a hospital of its duty under EMTALA.

Prosecutorial Discretion

Sands, whose office handles EMTALA enforcement actions, said the HHS has to exercise prosecutorial discretion when determining which enforcement actions to bring.

“We have many more cases than we have personnel to pursue,” she said. “If we do, it’s because we think it is a particularly egregious violation or there is something that we want to communicate to the medical community that we think will be useful in that particular case.”

Both Sands and Palowitch emphasized that an EMTALA violation claim can be brought later on if a peer review determines the emergency doctor didn’t follow the applicable standards of practice in screening and stabilizing the patient.

Bitterman took issue with that position, arguing it introduces a “negligence” standard into the law that isn’t present in the statute and goes against federal court decisions.

Qualified Medical Personnel

According to Palowitch, the initial screening under EMTALA must be done by qualified medical personnel. That doesn’t mean, however, the CMS will require only physicians to be involved in the initial screening process.

“There are other people who may be qualified to assist in these examinations and they may be nurse practitioners, physician assistants, as well as a variety of mental health professionals,” Palowitch said.

But, she emphasized, any individuals who provide assistance should be known to, and qualified to, participate in medical diagnoses by the hospital. Palowitch said this comes up most in states, like Virginia, that require hospitals to use a community resource board, a local government organization that helps hospitals evaluate mental health patients for placement in psychiatric care facilities.

“Even if your state requires you to use those resources, those resources still have to be determined qualified by your hospital,” she said.

As a result, Palowitch said, the EMTALA duties to screen and stabilize are not satisfied by simply calling on the state-mandated resource board and turning the case over to the representative from that board.

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at PSturges@bna.com

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