Practical Approaches to Behavioral Healthcare in Hospital Emergency Departments

1. Practical Approaches to Behavioral Healthcare in Hospital Emergency Departments Brooke Bennett Aziere & Amanda M. Wilwert Missouri Rural Health Conference August 22, 2019

2. Behavioral Healthcare Access Challenges in Missouri Source: https://www.mhanet.com/mhaimages/advocacy/Fact%20Sheet_Behavioral%20Health%20Access_RRH.pdf

3. Behavioral Healthcare Access Challenges in Missouri • Shortage of behavioral healthcare providers leads to • Patients in crisis presenting to hospital emergency departments • Patient boarding in hospital emergency departments • Between 2008 and 2017, emergency department utilization for mental health-related disorders increased: • 212% for Medicaid managed care • 30% for Medicaid fee-for-service • 42% for all other payors Source: https://www.mhanet.com/mhaimages/advocacy/Fact%20Sheet_Behavioral%20Health%20Access_RRH.pdf

4. Regulatory Pressures • Emergency Medical Treatment and Labor Act (EMTALA) • Medicare Conditions of Participation for Hospitals • Emergency Services • Patient Rights • Physical & Chemical Restraints • Care in a safe setting • HIPAA Privacy Rule • State Involuntary Civil Commitment Process

5. What is EMTALA? • Emergency Medical Treatment and Labor Act (EMTALA) • Federal statute passed in 1986 in response to concerns about patient “dumping” • Requires all patients receive appropriate emergency medical treatment and transfer; and that such care is provided regardless of ability to pay

6. Why should we worry about EMTALA? • CMS can terminate the Hospital’s Medicare provider agreement (42 C.F.R. 489.53) • The OIG has the authority to exclude “responsible physicians” from participation in Medicare, Medicaid, and all federal health programs for EMTALA violations (42 C.F.R. 1003.105) • OIG can impose Civil Monetary Penalties on both the Hospital and responsible physician • $52,414 for a hospital with fewer than 100 beds • $104,826 for a hospital with more than 100 beds • Patients can bring civil actions for damages

7. EMTALA Obligation • When an individual comes to the hospital for emergency care, the hospital must: • Provide an appropriate medical screening examination to determine if an emergency medical condition exists • And if it does… • Either stabilize the patient’s condition, or • Transfer the patient

8. EMTALA Obligation • EMTALA obligations end only when a physician or qualified medical personnel (QMP) has made the decision: • That no emergency medical condition exists; • That an emergency medical condition exists and the individual is appropriately transferred to another facility; or • That an emergency medical condition exists and the individual is admitted to inpatient status for further stabilizing treatment

9. Medical Screening Exam (MSE) • Provision of an appropriate MSE • “the process required to reach with reasonable clinical confidence, the point at which it can be determined whether a medical emergency does or does not exist…” • Must be performed by a physician or Qualified Medical Personnel (QMP) • Must be performed without delay • Must be performed within the capability of the Hospital’s ED, including routinely available ancillary services

10. Medical Screening Exam (MSE) • MSE is a process that may last for hours in order to determine if a medical emergency exists • Patients placed on observation status remain under EMTALA obligation • Monitoring must continue until the individual is stabilized for discharge, appropriately admitted to inpatient or appropriately transferred • Medical record must reflect continued monitoring, according to the patient’s condition

11. Medical Screening Exam (MSE) • MSE must be the same MSE for every individual with the same signs and symptoms • Must be applied in a nondiscriminatory manner • Treating behavioral health patients or other frequent fliers differently violates this requirement

12. Qualified Medical Personnel • MSE must be conducted by Qualified Medical Personnel • Individual(s) determined to be qualified by hospital by-laws or rules and regulations • Approved by the governing body of the hospital

13. Triage ≠ MSE • Triage is the clinical assessment of individual’s presenting signs and symptoms at time of arrival • Order of priority • But not considered a MSE

14. “Comes to the emergency department…” • An EMTALA obligation is triggered when the individual: • Has presented at the ED, or any other hospital-operated location on the hospital’s campus, and either: • Requests examination or treatment for a medical condition; • Has such a request made on his or her behalf; or • A prudent layperson observer would believe, based on the individual’s appearance and behavior, that the individual needs examination or treatment for a medical condition; or • Is in an ambulance on hospital property for presentation for examination and treatment

15. “Comes to the emergency department…” • NOTE: EMTALA obligations do not just apply to persons that come to the ED • A person who comes to any part of the hospital or its campus and asks for, and appears to need, emergency care, triggers the requirement to provide a Medical Screening Exam, and then if warranted, stabilization and transfer

16. On-Call Physician List • Hospital has discretion to maintain list in a manner to best meet the needs of its patients • Hospital not required to have Medical Staff provide on-call coverage 24 hours/day, 365 days/year • Maintain level of on-call coverage that is within hospital’s capability • No ratios

17. ED Central Log • A hospital with a dedicated ED is required to maintain a central log of individuals who come to the dedicated ED seeking treatment and indicate whether these individuals: • Refused treatment, • Were denied treatment, or • Were treated, admitted stabilized, and/or transferred or were discharged

18. Patient Refusal of MSE or Treatment • Document, Document, Document • Description of the screening, examination or treatment that was offered prior to patient’s refusal • Indicate risks/benefits • Reasons for refusal • Steps taken to try to secure written, informed refusal

19. Emergency Medical Condition • A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in • Placing the health of the individual in serious jeopardy; • Serious impairment to bodily functions; or • Serious dysfunction of any bodily organ or part; or

20. Emergency Medical Condition • With respect to a pregnant woman who is having contractions- • That there is inadequate time to effect a safe transfer to another hospital before delivery; or • That transfer may pose a threat to the health or safety of the woman or the unborn child

21. Stabilizing Treatment or Transfer • If the MSE indicates that the individual has an emergency medical condition, then the appropriate hospital staff must do one of the following, as medically indicated, and without regard to the individual’s ability to pay: • Provide further medical examination and treatment as required to stabilize the emergency medical condition; • Transfer the individual to another medical facility, in accordance with EMTALA standards; or • Admit the individual as an inpatient • Empty inpatient bed ≠ capability or capacity to stabilize

22. Stabilizing Treatment • To stabilize an EMC the hospital must: • “provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration….” • “Provide for further medical examination and treatment as required to stabilize the EMC” • All individuals with similar medical conditions must be treated consistently

23. Transfer • When a transfer is an appropriate transfer: • Transferring hospital provides medical treatment within its capacity • Receiving facility has available space and accepts transfer • Transferring hospital provides all medical records • Transfer is effected through qualified personnel and transportation equipment

24. Transfer: Transferring Hospital Responsibilities • Treat & stabilize patient as far as possible • Provide ongoing assessments of patient • Patient must sign certification/informed consent for transfer • Contact receiving hospital • Receiving hospital must accept transfer • Send copies of medical records & test results • Arrange necessary personnel & equipment for transfer

25. EMTALA Transfer Form • Legal document • Stable vs. unstable patients • Certification of ‘risks & benefits’ • Signature, date, and time • Reassessment at time of transfer • Physician vs. non-physician role

26. Transfer: Receiving Hospital Responsibilities • Must accept transfer if hospital’s capabilities to treat the patient exceeds risks of transfer • Not obligated to conduct another MSE • Snitch Rule: Receiving hospital must report cases of inappropriate transfers

27. Transfer: Patient Refusal • Inform patient of risks & benefits of transfer • Document, document, document • Attempt to obtain patient’s written refusal of transfer & reason for refusal • Continue to treat patient within hospital’s capabilities until stable

28. EMTALA and Behavioral Health Patients

29. Psychiatric Emergency Medical Condition • Any behavioral health condition which creates a threat of potential harm to the patient or others • Examples include patients presenting as suicidal or homicidal, delusional, assaultive, self-destructive, etc. • “Threshold” issue – suicidal thoughts v. suicidal intent • May include substance abuse • Key is presence of threat to self or others

30. Psychiatric Screening • Must utilize all resources available to determine whether or not an EMC exists • Twofold process: • (1) provide a medical screening to rule out organic causes of behavioral disorders; • (2) then psych screening • Records should indicate an assessment of suicide or homicide attempt or risk, orientation, or assaultive behavior that indicates danger to self or others

31. Psychiatric Screening • Can an ER physician in a facility that does not provide psychiatric care conduct the mental health screening? See Frequently Asked questions on the Emergency Medical Treatment and Labor Act (EMTALA and Psychiatric Hospitals (July 2, 2019): https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO-19-15-EMTALA.pdf

32. Psychiatric Screening • Crisis intervention team • Evaluate the patient for admission to a psychiatric facility • Hospital liability does not change – EMTALA responsibility still remains with hospital’s emergency room physician • Restraining patient while waiting for team evaluation, be careful of excessive restraint time • Tools to assess suicide risk, intervene, plan for discharge • Suicide Prevention Resource Center’s 2015 “A Consensus Guide for Emergency Departments” and Quick Guide (http://www.sprc.org/edguide?sid=46620)

33. Intoxicated Patients • You may not be able to properly screen a patient until the patient is no longer intoxicated • Intoxicated patients may not be considered stable • Intoxicated patients may have impaired capacity and be challenging with respect to AMA discharge • Do not rush to consult, discharge, or admit • Do not give the patient to local law enforcement to be taken to jail! (See Southeast Missouri Hospital Enforcement Action)

34. Stabilizing Psychiatric Patients • Requires removing the threat of harm to self or others • May require admission or some reasonable period of observation/detention • Admission cannot be limited to certain hours or denied based on suspect admission criteria (“no admissions after 5:00 p.m.” or “no violent patients”) • Until a patient has been stabilized, admitted or transferred, EMTALA applies

35. Stabilizing Psychiatric Patients • Psychiatric patients are considered stable when they are protected and prevented from injuring or harming him/herself or others • Admission in good faith to stabilize EMC ends EMTALA obligations • Admission to observation does not

36. Stabilizing Psychiatric Patients • Use care when administering chemical or physical restraints • May temporarily stabilize a psychiatric patient and remove immediate EMC but underlying medical condition may still persist • Emergency physician must take into account foreseeable issues such as transport time, duration of medications, likelihood of medical or psychiatric deterioration en route, etc.

37. Boarding Psychiatric Patients • Boarding psychiatric patients in ED while waiting for admission or transfer is a huge problem • Provide safe, monitored, location where patient is clear of items that could be used to harm self or others • Periodic assessments and reassessments • Joint Commission recommends boarding times not exceed 4 hours

38. Transfer of Psychiatric Patients • CMS & OIG closely scrutinize psychiatric transfers • Methods and duration of restraints • Time to arrange transfer • Duration of transport • Security of individual • Appropriateness of medical treatment • Potential complications during transfer

39. Refusal of screening or treatment • Suicidal patients cannot refuse medical and psychiatric screening evaluations and stabilizing treatments • Suicidal patients are not competent to accept or reject medical intervention • However, can refuse care for minor injuries • 6-35% of acute psychiatric admissions result in a discharge against medical advice • If patient leaves AMA: document, document, document

40. Patient Rights – Restraints & Seclusion • Right to be free from restraint or seclusion, unless necessary to ensure immediate physical safety • Based on individualized patient assessment and re-evaluation • Least restrictive intervention • Discontinued as soon as possible • Be aware of order time limits and face-to-face evaluation requirements • Seclusion can only be used for management of violent or self-destructive behavior

41. Patient Rights – Care in a safe setting • Environment • Identify patients and mitigate any environmental safety risks present in treatment areas • Remove sharp objects, cleaning agents, equipment that could be used as a weapon • Staffing and supervision • Appropriate observation or “sitters” • Appropriate staff training • How to respond to aggressive patients • How to safely restrain patients

42. EMTALA Enforcement Trends - Behavioral Health

43. Enforcement Trends • Failure to order psychiatric evaluation • Southeastern Regional Medical Center, North Carolina (Apr. 2, 2018) • 49-year-old presented with lethargy and overdose of multiple medications, stated depressed and suicidal ideations • ED physician placed on suicide precaution but no psychiatric evaluation • After 4.5 hours patient discharged • 4 days later, patient dies from self-inflicted gunshot wound • $200,000 settlement

44. Enforcement Trends • Failure to provide adequate medical screening examination and stabilizing treatment • Southeast Missouri Hospital, Cape Girardeau, MO (Oct. 17, 2017) • Hospital policy: If patients BAL > 100, patient given to local law enforcement and taken to jail • Two patients presented to SMH for evaluation of a possible suicide by overdose but discharged to local law enforcement custody because BAL > 100 • Lesson: Transfer to law enforcement does not satisfy EMTALA obligations • $100,000 settlement

45. Enforcement Trends • Failure to provide appropriate medical screening examination and inappropriate transfer • North Shore Medical Center, Mass. (Sept. 18, 2017) • 14-year-old exhibited combative behavior at home and banging head against wall • Presented to ED by ambulance, secured to a stretcher and under police escort • Placed in room, still secured to stretcher • ED physician did not perform MSE, instructed transfer to Salem Hospital ED for pediatric psychiatric evaluation • $60,000 settlement

46. Enforcement Trends • Failure to properly treat unstable psychiatric emergency medical conditions • AnMed Health, South Carolina (June 23, 2017) • Kept psychiatric patients in emergency rooms, days or weeks at a time without proper evaluation and/or treatment • Policy of handling emergency psychiatric patients differently depending on whether they were voluntarily or involuntarily committed for mental health and had money • $1.295 million settlement (largest ever for EMTALA violations)

47. Enforcement Trends • Failure to provide appropriate psychiatric screening examination when on-call psychiatrist was available • Covenant Medical Center, Iowa (Jan. 17, 2017) • Three patients presented to ED with suicidal thoughts, violent outbursts, or “disturbed” mind • Discharged with instructions to follow-up with primary care physician • $100,000 settlement

48. Enforcement Trends • Failure to provide MSE and appropriate transfer • Research Medical Center, Kansas City, MO (Nov. 2016) • Patient presented to ED with a psychiatric emergency medical condition • Without providing stabilizing treatment, RMC transferred the patient to a nearby facility by private vehicle, en route, the patient exited the vehicle and was struck by another vehicle • Surveyors reviewed hospital’s policies • Surveyors found 17 incidents of improper transfer or discharge of psychiatric patients • $360,000 settlement

49. Enforcement Trends • Failure to evaluate and treat mentally ill patient transferred for involuntary inpatient psychiatric care • Floyd Medical Center, Georgia (Jan. 6, 2016) • Patient was aggressive and combative upon arrival • Three security personnel attempted to restrain the patient, the patient attempted to strike one of them, in response, a security officer hit the patient in the head • Security officers then wrestled the patient to the ground and handcuffed him, causing injury to the patient • Without psych evaluation, medically cleared and patient taken to jail • $50,000 settlement

50. Enforcement Trends • Failure to consult with licensed professional counselors (“LPC”) before discharge • Grady Memorial Hospital Corporation, Georgia (May 18, 2016) • Patient extracted from apartment by SWAT team and brought to ED with complaints of suicidal and homicidal ideations • LPCs evaluated and determined involuntary hold for evaluation and treatment • ED physician discharged patient without consulting LPCs • $40,000 settlement