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EMTALA — Essentials and Trouble Spots Webinar

February 28, 2018

Welcome

Bob MionCalifornia Hospital Association

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Continuing Education

Continuing education will be offered for this program for compliance, legal and nursing.

Full attendance and completion of the online evaluation and attestation of attendance are required to receive CEs for this webinar. CEs are complimentary and available for the registrant only.

Faculty

M. Steven Lipton is a partner in the San Francisco law office of Hooper, Lundy and Bookman, PC, and the author of CHA’s manual, EMTALA — A Guide to Patient Anti-Dumping Laws. A noted expert on patient anti-dumping laws, he has worked extensively with hospitals on EMTALA civil sanction matters and on compliance interpretation, policy development and education.

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Faculty

Alicia Macklin is an associate in the Los Angeles law office of Hooper, Lundy and Bookman, PC, in the regulatory and business departments, where she assists health care providers, including hospitals, physicians, and health services companies with a broad range of compliance, licensing and certification, and reimbursement issues.

Program Overview

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Overview

• Review of the Basic Obligations• Updates• Recurring Problem Areas• Psychiatric Patients• Open Q and A

Disclaimers

• This presentation assumes basic knowledge of EMTALA

• We do not have all the answers …

(Please, don’t shoot the messenger!)

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EMTALA 101 — The Basics!

• When does EMTALA begin? • What is an appropriate medical screening

examination (MSE)?• What is an emergency medical condition (EMC)?• What stabilizing treatment is required?• What is “stabilized?”• What is an appropriate transfer?• When must a hospital accept a transfer?

When Does EMTALA Begin?

Four paths to EMTALA —• Individual presents to “dedicated emergency department” (e.g.,

ED/OB) seeking or in need of examination or treatment for a medical condition

• Individual presents elsewhere on hospital property seeking or in need of examination or treatment for potential emergencycondition

• Individual in a hospital-owned/operated ambulance that is not operating under emergency medical services (EMS) direction

• Individual in a nonhospital-owned/operated ambulance on hospital property

EMTALA Manual: Chapter 2

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EMTALA — Core Obligations

• Medical screening examination• Further examination and stabilizing treatment for an EMC• On-call coverage• Transfer/discharge of patients • Acceptance of patients with unstabilized EMC requiring a

higher level of care• No delay of required services, including transfers, for

insurance or payment reasons

What is an Appropriate MSE?

CMS Guidance — “an MSE is the process to reach, within reasonable clinical confidence, the point at which it can be determined whether the individual has an EMC or not.”

• Triage is not an MSE• Designation of qualified staff to perform MSEs• Consistency/non-discriminatory — the MSE must be the same

MSE performed on any other individual presenting with the same signs and symptoms

• Rules for OB are the same as ED• Includes any request in the ED for pharmacy services• Documentation


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What is an EMC?

• Medical condition (including severe pain, psychiatric disturbances or chemical dependency abuse) manifesting itself by acute symptoms of sufficient severity so that the absence of immediate medical attention could reasonably be expected to result in —• Placing the health of the patient (or an unborn child) in serious

jeopardy; or• Serious impairment of bodily functions; or• Serious dysfunction of any bodily organ or part

• A pregnant woman having contractions if there is inadequate time for a safe transfer to another facility or the transfer will pose a threat to the health of the mother or the unborn child

EMTALA Manual: Chapter 1, p. 1.7-1.8

Further Examination and Stabilizing Treatment

If an emergency medical condition exists –• Must provide further examination and stabilizing

treatment within the capability and resources of the hospital, including on-call coverage

• Further examination and treatment is subject to a patient’s right to make an informed refusal of care

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Stabilization of an EMC

When is an emergency condition stabilized?• EMTALA regulations: when no material deterioration is likely,

within reasonable medical probability, to result from or occur during the transfer of the patient to another medical facility (or woman having contractions has delivered the baby/placenta)

• Interpretive Guidelines: an emergency condition is not stabilized until the condition, within reasonable medical confidence, is “resolved”

• WARNING — “stabilized” and “stable” have different meanings (see discussion under the “Update” slides)


EMTALA and Inpatients

• The EMTALA obligations are terminated when an individual is admitted for inpatient care

• An “inpatient” is “a person who has been admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services”

• Inpatient status includes admitted patients who are “boarded” in the ED waiting for a bed

• EMTALA obligations are also terminated when a mother has delivered her baby and the placenta

EMTALA Manual: Chapter 2, p. 2.18

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What is an “Appropriate” Transfer?

A transferring hospital must meet the following standards for making an “appropriate” transfer under EMTALA:• Patient has an EMC that is not stabilized and the resources needed to

do so are not available at the treating hospital• The sending physician certifies that the clinical benefits of the transfer

outweigh the risks, or the patient has made informed request for the transfer

• A receiving hospital has accepted the transfer• Medical records are sent to the receiving facility• An appropriate level of transport (including personnel and equipment)

is selected


When Must a Hospital Accept a Transfer?A hospital is required to accept an “appropriate” transfer from a transferring hospital if all of the following exist:

• The patient presented to the sending hospital seeking or in need of emergency care and treatment

• The patient has an EMC that is not stabilized in the judgment of the sending physician

• The sending physician has determined that the patient requires further examination and treatment in order to stabilize the EMC

• At the time of transfer, the sending hospital does not have the capability/capacity to stabilize the EMC

• The receiving hospital has the capability and capacity to stabilize the patient’s EMC


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Do Not Forget …

EMTALA applies only to emergency patients who have an EMC that is not stabilized —

• Inpatient transfers are not covered by EMTALA!• An emergency patient with a stabilized EMC, as

determined by the sending physician, is not covered by EMTALA• There are federal and state laws regarding approval for

post-stabilization services (see discussion under the “Recurrent Problem Areas” slides)

Sticky Issue — Registration

• EMTALA — hospitals may follow reasonable registration processes, including insurance, so long as the inquiry does not delay screening or treatment

• California law — “Emergency services and care shall be rendered without first questioning the patient or any other person as to his or her ability to pay therefor.”

• Which law prevails? EMTALA does not preempt state laws that do not directly conflict with EMTALA

• New guidance on patient registration – see discussion under the “Update” slides

EMTALA Manual: Chapter 4, pp. 4.2 - 4.3

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EMTALA Updates

EMTALA Sanctions

• Civil money penalties against hospitals and physicians • Potential exclusion of hospital or physician from the

Medicare and Medicaid programs • Effective in 2017:

• Up to $104,826 per violation — hospitals (100+ beds) and physicians (up to $52,414 for hospitals <100 beds)

• Amounts are adjusted annually for inflation

EMTALA Manual: Chapter 1, pp. 1.2- 1.3

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Hospital Urgent Care Centers

Are they “dedicated emergency departments?”• CMS 2003 Regulations• CMS Guidance

DED status may depend on:• Acuity level of drop-in patients; and/or • How the urgent care center is held out to the public

EMTALA Manual: Chapter 2, p. 2.6.

Hospital Urgent Care Centers

Friedrich et al. v. So. County Hosp. Healthcare System, et al. (D. RI 2016)

• “DED” includes a hospital department that is “held out to the public by name, posted signs, advertising or other means as a place that provides care for emergency medical conditions on an urgent basis without requiring a scheduled appointment”

• Court: Most important criterion is whether the center would be perceived by an individual as an appropriate place to go for emergency care

EMTALA Manual: Chapter 14, p. 14.10.

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On-Call Coverage and CAHs

Greater flexibility by CMS• A physician, PA, NP or a clinical nurse

specialist with training/experience in emergency care must be immediately available by telephone/radio, and available on-site within 30 minutes

• Physician must be immediately available by telephone/radio on a continuous basis• Staff/physician OR Telemedicine

Physician

• But State laws for emergency services still apply!

EMTALA Manual: Chapter 11, pp. 11.4

Debt Collection in the ED

CMS warning (May 9, 2012) — “aggressive debt collection” • “We would have serious concerns with the legality of

any hospital policy or procedure that may discourage individuals from seeking emergency care, such as demanding that emergency department patients pay before receiving treatment.”

• May not delay screening or stabilizing treatment to inquire about payment or insurance status

EMTALA Manual: Chapter 4, pp. 4.2 - 4.3

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Payor InterferenceCMS Guidance (Dec. 13, 2013)• Immediate Payment: A request to an ED patient to

make immediate payment while required services are being provided does not fall under the permitted exceptions to the general prohibition on inquiring about method of payment or insurance status

• Prior Authorization: Cannot follow direction of a payor to require prior authorization before MSE, initiating stabilizing treatment, or initiating or accepting an appropriate (i.e., EMTALA) transfer

EMTALA Manual: Chapter 4, pp. 4.2-4.3; Appendix X

“Stabilized” vs. “Stable”

“Stabilization” under EMTALA is a legal term• “Stable” or “Stability” as used by clinicians do

not carry the same meaning as “stabilized” under EMTALA

• “Stable for transfer” is NOT an EMTALA term• Disputes or misunderstandings often arise

between physicians when “stable” is used to describe a patient who has an unstabilized EMC

EMTALA Manual: Chapter 5, pp. 5.2 – 5.4

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“Stabilized” vs. “Stable”CMS Guidance (Dec. 13, 2013)

• EMTALA focus: is the EMC “stabilized,” not whether the patient’s clinical condition is “stable”

• Warning to payors – cannot assume that a planned transfer means that an ED patient’s condition is “stabilized”

• If EMC is not “stabilized,” a payor cannot interfere in the transfer decision, including the selection of the destination facility

EMTALA Manual: Chapter 4, pp. 4.2-4.3; Appendix X

EMTALA: Recurrent Problem Areas

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Overview

• Medical screening exams• Acceptance of transfers • Capacity and capability • Obstetric patients in the ED and labor and delivery• Patient safety, monitoring, security and elopement• Payor communication for post-stabilization care• Interaction of EMS agency policies and EMTALA

obligations

Medical Screening Examination

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Medical Screening Exams

Core requirements – recap• The MSE is intended to determine, within reasonable

clinical confidence, the presence or absence of an EMC

• The MSE must be performed by qualified medical personnel designated by the hospital

• Triage is not medical screening• Must be provided in non-discriminatory manner to all

patients presenting with same/similar signs and symptoms


Medical Screening Exams

2005 – 2014: Failure to provide an appropriate MSE cited by CMS in 55% of enforcement actionsImportant issues:

• Appropriate scope of MSE?• Use of resources are available to ED?• Where to perform? • Labor and delivery patients?• Psychiatric patients?


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Medical Screening Exams –Psychiatric Patients

A person who comes to the ED may seek or need care for both a medical and a psychiatric emergency

• The ED physician or QMP must provide an MSE for both the medical and psychiatric conditions

• Must document the behavioral assessment • In most cases, a psychiatric condition is considered

to be emergent if the patient is a danger to himself or herself or to others, or is gravely disabled due to a mental disorder

EMTALA Manual: Chapter 3, pp. 3.20-3.21; Chapter 6, pp. 6.12-6.13

Acceptance of EMTALA Transfer

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Acceptance of EMTALA Transfer

• An ED patient with an EMC that is not stabilized?• Sending physician’s judgment prevails

• What is your process for a transfer request• Is transfer is covered by EMTALA• Is there current capacity?• Who makes the decision to accept/refuse?

• How are transfer requests documented?• How are disputes handled in real time?• EMTALA Manual Appendix T – transfer checklist and

script – step-by-step process to evaluate requestsEMTALA Manual: Chapter 7; Appendix T

Saying No …

Transfer acceptance obligation does not apply to –• Emergency patients whose EMC are stabilized

• Note: sending physician’s judgment prevails• Inpatients• Sending or accepting facility is not a Medicare-

certified hospital Exception: does the hospital or physician have a contractual or other legal obligation to accept the patient


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Psychiatric Patients

• No distinction under EMTALA rules• Some California counties attempt to limit transfer of

involuntary psychiatric patients to specified facilities

• EMTALA regulations expressly permit an appropriate transfer to any facility that has capacity and capability to stabilize the individual’s EMC; and

• A receiving hospital cannot refuse an appropriate transfer if it has the capacity and capability to stabilize the individual’s EMC

EMTALA Manual: Chapter 6, pp. 6.20; Chapter 7

Irrelevant to EMTALA Transfer

• NO inquiry as to patient insurance/financial status until after the patient is accepted

• Anything related to money or payment• Obligations of the transferring hospital or physician

that are not required (e.g., requests to perform additional tests before acceptance of a transfer)

• Conditions unrelated to the transfer• Any other information that is not pertinent to the

clinical needs of the patientEMTALA Manual: Chapter 7

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EMTALA Transfer Risks

• Risk if there is a delay in the response to accept or refuse a transfer

• If a dispute between hospitals or physicians as to the clinical status of the patient or need for a transfer, the judgment of the sending physician will generally prevail• Best to handle disputes AFTER the transfer has

occurred


EMTALA Transfers and Capacity and Capability

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Is there an Open Bed?

Hospital has an unoccupied bed in the ICU and has the capability to stabilize a patient’s EMC; however (take your pick) —

• The open bed is reserved for a patient in surgery who will need the bed after post-op

• The open bed is temporarily reserved for an inpatient who may need to be upgraded to ICU

• The open bed is reserved for a potential trauma patient who may present to the ED

EMTALA Manual: Chapter 5, pp. 5.13-5.15

Is there an Open Bed? (cont.)

CMS definitions (42 CFR §489.24(b))• Capacity means the ability of the hospital to accommodate the

treatment of the transferred individual; it encompasses number and availability of qualified staff, beds and equipment and the hospital’s past practices of accommodating patients in excess of its occupancy limits

• Capability means that there is physical space, equipment, supplies and specialized services that the hospital provides, and level of care the personnel can provide, including on-call rosters

EMTALA Manual: Chapter 1, pp. 1.6 and 1.10; Chapter 5, pp. 5.13-5.15

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What is an “Open Bed”

• The open bed is reserved for a patient in surgery who will need the bed after post-op• This may be a committed bed

• The open bed is temporarily reserved for an inpatient who may need to be upgraded to ICU• This may be a committed bed, but temporarily

• The open bed is reserved if a trauma patient presents to the ED• This is an open bed


What is an “Open Bed” (cont.)

• Surveyors will look at historical practices as to bed allocation –• Are you consistent between admitting patients from your

ED and accepting patients from other hospital EDs?• How do you manage competing requests for the same

bed?


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EMTALA and OB Patients

OB Patients – MSE

• The screening for women in labor requires documentation of the initial assessment of both the expectant mother and unborn child

• Screening should include “ongoing evaluation of fetal heart tones, regularity and duration of uterine contractions, fetal position and station, cervical dilation, and status of membranes...”

• Further screening if patient not in labor and presenting complaint not addressed by OB personnel

• The CMS Guidelines do not differentiate between MSE in L&D and in the ED (without L&D on-site)


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OB Patients – Documentation

Examples of EMTALA violations:• L&D personnel – exceed or fail to follow standardized procedures

or to have competencies recertified as required• Chart that does not include physician orders for care or discharge• Chart in which the examining OB physician did not chart his/her

visit or findings• Chart in which discussions with and orders from supervising

physicians are/were inadequate or not documented• Chart in which fetal signs and monitoring are not documented


Patient Safety, Monitoring, Security and Elopement

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Elopement or Refusal

Before the MSE?• Issue with wait times or financial reasons? • Need documentation, but not an informed refusal

After the MSE? • Inform of risks and benefits of refusing further

examination and treatment, and patient signature (if feasible)

• Again, need adequate documentation!

EMTALA Manual: Chapter 8; pp. 8.2-8.5

Monitoring Patients

CMS 2567 — “… the facility failed to ensure that two … patients who presented to the … ED … with psychiatric diagnoses (including suicidal and homicidal ideations or an altered level of consciousness) received ongoing assessments and monitoring to ensure stabilization of an emergent condition … These failures resulted in the potential for the undetected deterioration of an emergency medical condition which would place patients at risk for harm, including elopement.”

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Payor Communication Regarding: Post-Stabilization Care

Post-Stabilization Care

• General Rule in California – the Knox-Keene Act requires a licensed health plan to reimburse a provider for “emergency services and care”rendered to an enrollee until the care results in stabilization

• What about for Post-Stabilization care?• Health & Safety Code §1262.8

EMTALA Manual: Chapter 4; pp. 4.7-4.11

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Post-Stabilization Care –Prior Authorization

Noncontracting hospitals providing care to a patient who is a member of a health plan that requires authorization for post-stabilization services

• Plan must provide 24-hour access to obtain timely authorization; approval or denial must be made in timely fashion

• Hospital must follow certain procedures before initiating post-stabilization services


Post-Stabilization Care –Authorization and Payment

Strategies for obtaining authorization and payment• Reinforce and pursue member responsibility• Make timely requests for prior authorization • Request health plans and IPAs to assume

responsibility for the patient• Unstabilized vs. stabilized transfers• Pursue dispute resolution opportunities • Report unfair payment patterns to DMHC


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Interaction of EMS Agency Policies and EMTALA Obligations

EMS Agency Policies

CMS view: • Community plan arrangements do not necessarily require hospitals to

make patient transfers to network hospitals, but … • Transfers to trauma and other network facilities are permitted if the

sending hospital cannot stabilize an emergency condition and an “appropriate transfer” is implemented in accordance with EMTALA transfer rules

Diversion enroute to the trauma hospital: the hospital must –• Perform an MSE• Determine whether it has the capability to stabilize an EMC• Make an EMTALA-appropriate transfer


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EMS Agency Policies (cont.)

Issues:• EMTALA does not apply if a transport vehicle in the course of a

prearranged transfer to another hospital presents on the property of an intervening hospital to access its helipad for air transport, IF no request for examination or treatment

• Diversion enroute to trauma hospital if request for examination or treatment –• Must perform an MSE• Determine capability and capacity to stabilize an EMC• Make an EMTALA appropriate transfer if necessary


EMTALA – Psychiatric Patients

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Overview

• Application of EMTALA to psychiatric patients• Effect of LPS Holds on EMTALA compliance• 5150 vs. 24-hour Holds in the ED• Psychiatric EMCs – placement and transfer• Transfers to a crisis stabilization unit• County behavioral health department

policies/contracts vs. EMTALA

EMTALA Manual (2018), Chapter 6; CHA Mental Health Manual

Overview – CMS Radar Screen

• Medical screening of psychiatric conditions

• Further evaluation and monitoring of psychiatric patients

• Security/elopement of psychiatric patients• Transfer of psychiatric patients• Acceptance of emergency psychiatric

patients — requests for insurance information

• Discharge of psychiatric patients without transfer

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Application of EMTALA Rules to Psychiatric Patients

Basic Principles:• CMS considers medical and psychiatric EMCs to be

co-equal, without different rules or exceptions• EMTALA rules and guidance do not address involuntary

holds• EMTALA supersedes local networks (i.e., counties) for

psychiatric patient screening, treatment and transfer• Following county behavioral health policies and

directions is not a defense to an EMTALA violation!!!

Application of EMTALA Rules to Psychiatric Patients (cont.)

MSE: • “For individuals with psychiatric symptoms, the

medical records should indicate an assessment of suicide or homicide attempt or risk, orientation, or assaultive behavior that indicates danger to self or others.” (CMS Guidance)

• MSE is on-going during patient stay —• Must monitor and document patient status even if

county personnel are on the sceneEMTALA Manual: Chapter 6, pp. 6.12-6.13

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Psychiatric Emergency Condition:• CMS Guidelines — an individual expressing suicidal or homicidal

thoughts or gestures, if determined dangerous to self or others

• California hospital licensing law — a mental disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient as being either of the following: • An immediate danger to himself or herself or to others; or • Immediately unable to provide for, or utilize, food, shelter, or

clothing, due to the mental disorder

EMTALA Manual: Chapter 6. pp. 6.13-6.14


Stabilization• EMTALA: when no material deterioration is likely,

within reasonable medical probability, to result from or occur during the transfer of the patient from the facility

• California law: same as EMTALA regulations


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Stabilization• Medical clearance is not stabilization!• Release of a 5150 hold is not per se stabilization!

• ED or treating physician must document stabilization• CMS: restraints may stabilize a psychiatric patient for

a period of time, but if not timely treated, EMC may be exacerbated; in other words — BEWARE

EMTALA Manual: Chapter 6. pp. 6.15-6.17


Transfers:EMTALA — transfer of a patient with a medical or psychiatric EMC are subject to the same rules:

• Continued monitoring and treatment• Obtain acceptance of a receiving facility• Physician certification of the transfer• Transfer of patient records• Appropriate means of transportation• Reassessment at time of departure

EMTALA Manual: Chapter 4 and Chapter 6, p. 6.18

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Accepting Hospital Obligations:• CMS Guidelines: The requirement to accept an appropriate

transfer applies to any Medicare-participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department… For example, if an individual is found to have an emergency medical condition that requires specialized psychiatric capabilities, a psychiatric hospital that participates in Medicare and has capacity is obligated to accept an appropriate transfer of that individual. It does not matter if the psychiatric hospital does not have a dedicated emergency department

EMTALA Manual: Chapter 7. p. 7.1; Appendix C, p. C.47


Discharge of Psychiatric Patients:• CMS 2567 –

“… the hospital failed to comply with … [EMTALA] when Patient 1 was diagnosed with a psychiatric emergency medical condition and the hospital did not fully implement the stabilizing measures as determined by the mental health crisis worker … The stabilizing measures identified by … [the crisis worker] were located in Patient 1’s home town and Patient 1 was discharged without a means to get to her home, a distance of [___] miles from the hospital.”

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LPS and the 5150 Process

Steps in the pre-hospitalization process• Involuntary detention by a peace officer or an

authorized person based on probable cause, and …• Diversion for assessment, evaluation and crisis

intervention, or• Placement of the person at a county-designated

evaluation and treatment facility• Person must receive an assessment by an authorized

professional before an inpatient admissionEMTALA Manual: Chapter 6, pp. 6.4 and 6.6-6.7

5150 – Who May Initiate a Hold?

Section 5150(a) –• Peace officer• Professional in charge of a designated facility• Attending staff of a designated facility• County-designated mobile crisis team member• Other professionals designated by a county

The reality –• Can a county limit a peace officer and/or designated facility

professionals who may initiate holds?• Counties vary as to authorizing ED physicians to write a hold


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Designated Facilities

Types of designated facilities –• Acute hospital with inpatient psychiatric facility or unit• Acute psychiatric hospital• Psychiatric health facility (PHF)

• Most are not Medicare certified

• Crisis stabilization unit (CSU)• Most are not licensed facilities

As of October 2017 –• 150 designated inpatient facilities (includes PHFs)• 25 designated CSUs and outpatient facilities

EMTALA Manual: Chapter 6, pp. 6.4-6.5 and 6.8 and 6.9

Scenario 1B — Resources to Find Designated Facilities

http://www.dhcs.ca.gov/provgovpart/Pages/MH-Licensing.aspx Lanterman-Petris-Short (LPS) Act Designated Facilitieshttp://www.dhcs.ca.gov/provgovpart/Documents/LPS-24hr_07162014.pdfhttp://www.dhcs.ca.gov/provgovpart/Documents/LPS-Outpatient_CSU_07162014.pdfhttp://www.dhcs.ca.gov/provgovpart/Documents/LPS-Otherfacilities_07162014.pdfFind a Mental Health Treatment Facilityhttp://www.dhcs.ca.gov/services/MH/Documents/PsychiatricHealthFacility.pdf

WARNING: No guarantees that webpages are available and up to date

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The 5150 Hold

A 5150 hold allows a peace officer or a designated professional to detain a person, upon probable cause, that the person, due to a mental disorder, is dangerous to self or others, or gravely disabled

• A 5150 hold is means to facilitate access of a person to evaluation and treatment of the mental disorder

• A 5150 hold is not a clinical determination• The detaining person must complete an application (DHCS

1801) and provide it to the designated facility, and read an required advisement to the patient


Psychiatric EMC v. 5150 Hold

Similarities, but not congruence –• A 5150 hold is based on probable cause by a peace

officer or a county-authorized professional as a legal mechanism to take a person involuntarily to a designated facility for an assessment of a behavioral health condition

• Psychiatric EMC is based on a clinical judgment of an ED physician or other qualified professional designated by the hospital medical staff


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Psychiatric EMC v. 5150 Hold

Similarities, but not congruence –• A psychiatric EMC may not meet the probable cause

standard for a 5150 hold• A 5150 hold does not always mean that a person has a

psychiatric EMC• A determination that a patient’s psychiatric EMC is

stabilized does not itself alter the status of a 5150 involuntary hold

• Documentation must be clear as to whether the ED physician has determined if the psychiatric EMC is stabilized


Psychiatric EMC v. 5150 Hold (cont.)

The practical reality – stabilized or unstabilized• EMTALA does not recognize involuntary holds, but• Surveyors often use the 5150 hold as a variable in

determining the presence of a psychiatric EMC• Responsibility: ED physician must determine if a psychiatric

EMC is stabilized or unstabilized• County professionals may advise as to 5150 status, but cannot

interfere with the judgment or responsibility of the ED physician• Critical: medical clearance or a transfer of an ED psychiatric

patient does not mean that the psychiatric condition is stabilized


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Psychiatric EMC v. 5150 Hold (cont.)

The practical reality – transfer decisions• Responsibility: If the psychiatric EMC is unstabilized, the

treating physician determines the transfer decision process• County professionals may advise or help arrange placement, but

they cannot direct or interfere with the responsibility of the treating physician or the hospital to seek placement

• EMTALA overrides the county network of facilities --• If unstabilized EMC, hospital can transfer the patient to any

accepting facility with capacity, regardless of location within or outside of the county (or the state)

• County professionals cannot compel the transfer to networked facilities or a veto an out-of-network transfer


The 1799.111 Hold

Is it a Practical Alternative?

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§1799.111 Disclaimer

• §1799.111 is an orphan law in the family of involuntary hold laws and immunities tucked away in the State emergency medical systems law • It has nothing to do with LPS or Licensing

• Legal interpretations of §1799.111 —• There is no state agency or county department that has

authority to interpret §1799.111• There are no cases interpreting or applying §1799.111• There are no Attorney General opinions interpreting or

applying §1799.111EMTALA Manual: Chapter 6, pp. 6.29-6.32

1799.111 —Basic Requirements

• Must be an acute or psychiatric hospital that is NOT a county-designated LPS facility

• Applies to the licensed professional staff, or physician providing emergency services, in any department of the hospital

• No civil or criminal liability —• For detaining a person if statutory conditions are met; or • For the actions of a detained person after release from the

detention at the hospital if statutory conditions are met


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1799.111 — Other Conditions

• The hospital must comply with all state laws and regulations relating to seclusion and restraint, and psychiatric medications for psychiatric patients

• The detained person retains his/her legal rights regarding consent for medical treatment

• The person must be credited for time detained in if he/she placed on a subsequent 5150 hold


1799.111 — Resources

• Additional information and resources: • CHA Mental Health Law Manual, Ch. 3• CHA EMTALA Manual, Ch. 6 (pp. 6.29-6.32)

• Documentation: • Form 12-12 in the CHA Mental Health Law Manual

for documentation of a 1799.111 hold


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1799.111 — Advantages?

• No County involvement in the process• Does not require the paperwork or an application

for a 5150 • But must document the patient record

• Lacks the stigma and record of a 5150 hold


1799.111 — Advantages?

• Provides treatment alternative and flexibility to the ED physician based on patient condition

• Person can be released without County involvement

• May help in obtaining authorization for post-stabilization services?

• Immunities


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1799.111 – Disadvantages?

What happens if the 24-hour period expires and no transfer?

• Is there legal authority to continue detention of person?

• Can county-authorized personnel write a 5150?• Are you required to release/discharge the person

(what are the EMTALA consequences?)


1799.111 – Other Questions

• If you find placement, can you transfer a person under a 1799.111 hold to a designated facility if the person refuses to consent to the transfer?

• Will CDPH/CMS treat a 1799.111 hold different than a 5150 hold for EMTALA purposes

• If a patient arrives on a 5150 hold placed by law enforcement, and the custodial officer leaves the hospital • Is the 5150 hold still valid?• Can you treat the 5150 as lapsed? • Can you convert the patient to a 1799.111 hold?


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Transfer to Crisis Stabilization Units (CSUs)What is a CSU?• An outpatient location that provides assessment, collateral

and therapy to individuals• County-designated 5150 facilities for evaluation and

treatment, and certified by Medi-Cal• Most CSUs are not licensed facilities• Limited to stays under 24 hours• As of October 2017, 25 designated CSUs in California


Transfer to CSUs

Can hospital transfer a patient with a psychiatric EMC to a CSU?CMS Response (see CHA EMTALA Manual, App. V):• An appropriate transfer under EMTALA does not

require in all cases that the receiving facility must be a hospital

• A transfer to a CSU or other non-hospital facility is not automatically a violation of EMTALA


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Transfer to CSUs (cont.)

However …• The sending physician must have a reasonable clinical

confidence that the CSU has the capability to stabilize the patient’s behavioral emergency

• If the sending physician does not have the clinical confidence that the CSU can stabilize the condition, the physician should arrange a transfer to a level of care higher than the CSU

Note: a CSU is not subject to EMTALA unless operated under a hospital provider number



2567s have been issued to hospitals that transferred a psychiatric ED patient to a CSU: • Patient was subsequently transferred back to

the sending hospital • Patient subsequently transferred to a

psychiatric inpatient facility for admission• “[P]otential for delay in stabilizing care if they are

required to be transferred to an inpatient psychiatric hospital after 24 hours.”


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CSU strategies if ED patient has an unstabilized EMC–• Transfers to a CSU must be an EMTALA appropriate

transfer –• Must follow the EMTALA process for the transfer (no

short cuts by county personnel to take the patient)• A county cannot require a CSU transfer • A CSU cannot be an intermediate stop to an inpatient

admission • Some CDPH surveyors are skeptical as to sending ED

patients to a CSUEMTALA Manual: Chapter 6, pp. 6.20-6.21


Strategies if ED patient has an unstabilized EMC • Transfer agreement with the CSU is helpful• Know the CSU’s admitting criteria and service limitations• Work together to serve patients• Documentation of the patient’s condition and suitability for CSU

placement is critical • Additional recommendations – CHA EMTALA Manual,

Chapter 6, p. 6.21Bottom Line: be selective as to who is a candidate for a CSU transfer


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EMTALA vs. County Policies

Basic rules: • EMTALA is a federal law• LPS is a state law• EMTALA overrides conflicting state laws

Key takeaways:• Know your EMTALA obligations!• If patient’s psychiatric EMC is not stabilized, hospital

personnel must follow EMTALA, not directions that conflict with the EMTALA obligations, including screening, treatment and transfer

EMTALA vs. County Policies (cont.)

Types of conflicts: • Refusal by county personnel to respond to EDs to

write a hold• Interference by county personnel with treating

physician as to whether a psychiatric EMC is stabilized

• Interference by county personnel in transfer decisions and limitations as to facility placement

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EMTALA vs. County Policies (cont.)

Examples of conflicts: • Out-of-county resident –

• County of hospital will not respond to E.D. • County of residence will not accept the patient

• Example of a county LPS training manual: “Sending 5150 detainees to hospitals NOT designated by [the department] is illegal.”

• Interference in restricting designated facilities to accept out-of-county patients

Thank You

M. Steven Lipton(415) [email protected]

Alicia Macklin (310) [email protected]

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Questions

Online questions:Type your question in the Q & A box, press enter

Phone questions:To ask a question, press *1

CHA Publications

CHA’s EMTALA Manual explains the Emergency Medical Treatment and Labor Act (EMTALA) to help hospitals avoid lawsuits. The manual is full of sample scenarios and provides practical guidance to hospitals, physicians, and nurses to simplify compliance with patient anti-dumping laws.

The 2018 edition includes an extensively revised chapter on psychiatric emergency patients, with new content on 72- and 24-hour holds, county responsibilities, law enforcement rules, and more.

www.calhospital.org/EMTALA-manual

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Thank You and Evaluation

Thank you for participating in today’s seminar. An online evaluation will be sent to you shortly.

For education questions, contact Bob Mion at (916) 552-7508 or [email protected].