South Carolina Hospital Settles With OIG Over Alleged EMTALA Violations Involving Psychiatric Emergencies

The settlement reportedly represents the largest EMTALA settlement to date and comes seven months after the OIG issued new regulations (1) increasing the civil monetary penalty amounts for EMTALA violations (though because the events occurred in 2012 and 2013, AnMed Health was subject to the original civil monetary penalty amounts), and (2) encouraging providers to self-report EMTALA violations to the Centers for Medicare and Medicaid Services (CMS) in order to potentially receive more lenient penalties where there is a violation of the law.

Extended Emergency Department “Holding” Can Result in Violation

When a patient presents to a hospital’s emergency department, EMTALA requires the hospital to provide an appropriate medical screening examination within the capability of the hospital’s emergency department to determine whether an emergency medical condition exists. If the hospital determines the patient has an emergency medical condition, the hospital must either provide further examination and treatment to stabilize the patient’s condition within the staff and facilities available at the hospital, or if the hospital lacks such resources, appropriately transfer the patient to another hospital that can stabilize the patient’s condition. An “appropriate transfer” must comply with EMTALA’s transfer requirements, which include, among other factors, that the receiving hospital has available space and qualified personnel to treat the patient and has agreed to accept transfer of the patient and to provide appropriate medical treatment.  

AnMed allegedly violated EMTALA by failing to provide appropriate psychiatric treatment to unstable psychiatric patients presenting to the hospital’s emergency department in more than 30 instances between 2012 and 2013. Rather than having the patients examined and treated by the psychiatrists on the hospital’s staff, the patients were treated by emergency department physicians. AnMed also allegedly failed to admit the patients to the hospital’s psychiatric unit for stabilizing treatment, holding the patients instead in the emergency department for up to 38 days. According to the settlement, this was pursuant to AnMed’s longstanding policy not to admit involuntary patients to its own psychiatric unit. AnMed did not admit liability under the settlement.    

Increased CMS Enforcement of EMTALA Matters Involving Psychiatric Emergencies 

The AnMed settlement of course illustrates the importance of EMTALA compliance for hospitals; however, although not clearly at issue in this case, the settlement also raises concerns for hospitals across the country that regularly have difficulty providing “appropriate transfers” for patients with psychiatric emergencies due to the shortage of inpatient psychiatric unit beds. Over the past 18 months, we have seen increased CMS scrutiny at multiple acute care hospitals in different CMS regions specifically addressing mental health patients in emergency departments. CMS allegations have included inadequate medical screening examination (MSE) for mental health; failure of the MSE to be ongoing, especially when the patient remained in the emergency department beyond shift change; mental health patients “holding” in emergency departments for extended time periods; elopement of mental health patients from emergency departments; the need for increased safety measures for suicidal and homicidal patients; improper use of psychoactive medications as chemical restraints; and inadequate documentation of MSE, psychiatric interventions, and justification for psychiatric interventions.  

Many of these allegations result from the increasing difficulty emergency departments have in finding an appropriate inpatient bed for patients with mental health emergencies, meaning the hospital has to keep the patient in its emergency department for extended periods of time. Most general acute care hospitals do not have their own inpatient psychiatric units, and the number of inpatient psychiatric beds has decreased nationwide. Demand, however, has not, and emergency departments sometimes spend hours over several days trying to find an appropriate facility with an available bed for a patient with a psychiatric emergency. This often involves emergency department personnel contacting facilities increasingly geographically distant from the patient’s home, just to get the patient admitted to an appropriate setting.  

Hospitals Should Ensure Their EMTALA Compliance Includes Psychiatric Emergencies

The insufficient number of inpatient psychiatric beds to meet growing demand, coupled with CMS’s increased EMTALA enforcement, means acute care providers have to be creative in their approach toward EMTALA and mental health emergencies. At the very least, acute care hospitals should review their emergency department policies and procedures to ensure that they specifically address EMTALA compliance for patients with mental health emergencies.

And, of course, hospitals should understand that merely providing treatment to patients in emergency departments may not fulfill their obligations under the law. CMS expects hospitals to utilize the specialists it has on staff to meet the screening and stabilization requirements, as well as to employ their own inpatient capabilities for stabilizing emergency patients – including psychiatric patients – who come to the emergency department.     

Arent Fox’s Health Care group regularly counsels hospitals as to compliance with EMTALA and other health care regulatory matters and regularly monitors health care fraud and abuse settlements and developments.