This article originally appeared in the July 2017 edition of LHA Impact Law Brief and was reprinted with permission.
Most hospitals are intimately familiar with the application of the Emergency Medical Treatment and Labor Act (EMTALA) in medical cases. It becomes more complex and challenging when an individual presents to a hospital’s emergency department (ED) with symptoms of a psychiatric disturbance. We are seeing increased focus on these types of cases by healthcare regulators. Multiple recent enforcement actions include two settlements – $360,000 and $1.3 million – that are far afield from the “usual” $50,000 penalty (or $25,000 for smaller hospitals). From these settlements, we see how problematic practices can significantly compound penalties, particularly in psychiatric emergency cases.
A November 2016 settlement arose from a self-disclosure by Research Medical Center (RMC) in Kansas City, Missouri. The hospital self-reported an incident where a psychiatric patient was transferred in a private vehicle. On the way to the receiving hospital, the patient exited the car and was hit by another vehicle. In the investigation that followed, the surveyors reviewed not only the reported incident but also looked at the hospital’s policies as well as, how other patients who presented to the ED with psychiatric emergency medical conditions were handled. The result was a finding of seventeen incidents where the hospital failed to provide adequate medical screening exams and improperly transferred or discharged psychiatric patients. RMC ultimately entered into a $360,000 settlement with the Office of Inspector General (OIG).
The biggest EMTALA penalty in history was announced just last month. In a June 2, 2017 settlement, we saw a non-profit hospital hit with the largest EMTALA fine ever: $1.3 million. It arose from incidents as far back as 2012 and 2013 that related to problematic policies for psychiatric emergencies. AnMed Health in Anderson, South Carolina had a 15-bed behavioral health unit and a longstanding policy to accept only voluntarily admitted patients there. The policy appears to have, in part, stemmed from its lack of trained staff and security for handling the involuntarily committed patients. (The Louisiana equivalent of “involuntarily committed” would be a PEC / CEC patient). An involuntarily committed patient would be medically stabilized. Then, if the patient did not have financial resources, the attending physician could write an order for the local mental health center to evaluate the patient for admission into the state mental hospital. The patient would be held in the hospital’s ED until (s)he could be transported. However, state budget cuts had led to a severe shortage of space in the state hospital, which would often prolong patient stays in the ED.
The investigation relating to these policies ultimately found issues with 36 separate incidents. The surveyors found that the hospital held unstable psychiatric patients (most of whom were suicidal and/or homicidal) in its ED for between 6 and 38 days, and during that time, the patients were not seen by on-call psychiatrists nor were they placed in available beds in the hospital’s psychiatric unit. The EMTALA violations alleged by the government included a failure to provide appropriate medical screening examinations and stabilizing treatment.
AnMed did not admit liability in the settlement, but has reportedly been engaged in significant corrective action since 2015 including more than doubling the size of its inpatient psychiatric unit (from 15 to 34 beds). It is also working to make the unit more appropriate for involuntarily committed patients including adding more training for staff and security. AnMed was also very cooperative during the investigation and did more than was required to correct the issues. According to the OIG, this is why the record-setting penalty wasn’t even higher. At $50,000 each, the 36 violations could have resulted in penalties of $1.8 million.
Emily Black Grey is a partner and the Manager of the Health Care Section at Breazeale, Sachse and Wilson LLP; she practices in the firm’s Baton Rouge office.