Emergency Medical Treatment & Labor Act (EMTALA)
NOTE: The following does not constitute LEGAL advice or opinion, nor expert advice related to EMTALA law and its requirements. However, it does reflect information gathered during meetings and other discussion with CMS that may be of value to CSBs, hospitals, and physicians working in Emergency Departments.
The federal Emergency Medical Treatment & Labor Act (EMTALA) is law, and it is clearly written that it cannot be infringed by state law. Thus, the burden of appropriate “medical screening” (including psychiatric/behavioral health), as required by EMTALA, as well as assuring a safe/appropriate disposition are fully operative and must be met by hospitals/physicians. From a legal standpoint, the Virginia detention laws run in parallel to EMTALA law and do not infringe it. However, there are operational interface points where there a few points at risk to become blurred, but that must be procedurally clear and documented as such, e.g. medical screening includes behavioral health screening and the disposition is affirmed or endorsed as safe and appropriate.
There are a few points upon which they are clear and declarative as far as expectations for hospitals when EMTALA is applicable:
- The ER/ER physician have an obligation to conduct medical screening as required by EMTALA law and to assure that the disposition is medically (including psychiatrically) safe and appropriate. Note, “medical screening” is the EMTALA term and should not be confused with “prescreening” that CSBs conduct or the “medical screening/assessment” done as part of the TDO process to assure someone can be handled in the receiving psychiatric unit or state hospital. It seems like if the physician documented, at minimum, the reason for the need for TDO screening that this would be helpful. For example, “Appears psychotic, being screened for TDO”, “Appears agitated, threatening to kill someone, will receive TDO evaluation”, or “Says they want to kill themselves, being screened for TDO” then this would establish the first link of mental or psychiatric medical screening.
- Such screening is inclusive of mental health. CMS was clear that they do not distinguish a mental health emergency from an otherwise medical emergency.
- If they are using CSB staff to do this or relying upon them to conduct this part of the medical screening then this needs to be present in the hospital record and the hospital must have evidence of the CSB staff member’s competency to do this.
- If the CSB staff member is not a licensed independent practitioner privileged by the hospital then their part of the “medical screening” is primarily informative to the controlling ER physician who must then “own it” so to speak. Obviously, if they are functioning as a licensed independent practitioner within the ER then they have to be credentialed and privileged by the hospital. If this is the case then their work can clearly stand on its own rather than being derivative of the physician’s work/duty.
- If the CSB is NOT conducting the mental health portion of the medical screening for the ER, but is simply conducting an assessment pursuant to Virginia law then the ER physician must declaratively sign off that the disposition/placement is safe and appropriate. This is as required for any other disposition.
- Document either the request of the individual to be transferred to another hospital (after being informed of the hospital’s EMTALA obligations), or have a physician certify that the benefits reasonably expected from appropriate treatment at the other hospital outweigh the increased risks from being transferred; “Individual needs psychiatric inpatient treatment, is safe for transport to ___” will need to be documented in some fashion.
- Confirm that the recipient hospital has available space and qualified personnel and has agreed to the transfer; This applies to private psychiatric units/hospitals as written. For state hospitals, they must, by law,” agree” to the transfer, but they may not have the “qualified personnel” or equipment to handle the individual’s current medical, non-psychiatric, condition. They have been advised to let the ER physician/QMP know this and encourage the two physicians to discuss what is needed in terms of the patient’s condition for the state hospital to be able to handle the individual. Once that condition is reached and they can manage the individual may go under the TDO. The state hospital may be the TDO site for the TDO, but actual transport may need to wait. Some types of acute medical problems may prevent sufficient psychiatric assessment and the best course may be to NOT obtain a TDO until such an assessment can be more properly made.
- Provide all medical records available at the time of transfer.
- Effect the transfer through qualified personnel and transportation equipment. This will be by Law Enforcement unless another legally appropriate means is effected.
Hospitals also have an obligations to accept referrals of individuals for whom they have the capacity to meet the relevant needs, however, all investigations of such (as well as any other) allegations are made on a case by case basis and the issue will be whether the denial was consistent with their ordinary practice or not.