Psychiatric EMTALA Enforcement Has Gone Off the Rails: Comments on “Civil Monetary Penalties Resulting From Violations of EMTALA Involving Psychiatric Emergencies, 2002 to 2018”
The authors’ stated objective is to describe characteristics of EMTALA civil monetary penalties (CMPs) levied by the Office of Inspector General (OIG) between 2002 and 2018.1 However, the description provided is just the government's version of the “description,” it leaves out the affected hospitals’ side of the story, and the authors’ statistical analysis of the penalties assessed overlooks known critical factors that could substantively undermine their conclusions.
The study utilized only the descriptions of the EMTALA settlements that the OIG published on its website.1 The OIG is the prosecuting agency; these descriptions are solely its biased version of the events published to suit its purposes. Fuller descriptions underlying the settlements, which include the hospital's account of the EMTALA issues behind each settlement, were readily available through Freedom of Information Act (FOIA). These documents include the CMS Statement of Deficiencies, which detail the alleged facts of each ED visit in question; the 5-day and 60-day Quality Improvement Organization physician reviews of the medical issues at bay in each case; the hospital's factual and legal submissions to the QIO and OIG refuting the government's allegations; the plans of correction submitted by the hospitals to avoid termination from Medicare; and prominently, the actual written settlement agreements between the OIG and the hospitals that resulted in the final monetary settlement amounts.
For example, the case study provided by the authors is the AnMed Health case—which set off a firestorm in the hospital and emergency medicine community.2 It was the only settlement for which the authors obtained “reports from the EMTALA investigation.” They specifically state that they obtained the hospital's corrective action plan, but don't identify the others. They read “news reports” to better understand the context in which the hospital operated, although they don't cite which news reports (some news reports were simply interviews of the OIG attorney who prosecuted AnMed, furthering her narrative of the case). There's much more to the story, sourced primarily from the available FOIA documents.
Due to South Carolina's budget woes the inpatient capacity at the state psychiatric hospital near AnMed was cut from 200 beds to 96 beds, which markedly increased the burden and boarding of psychiatric patients in AnMed's emergency department (ED) and other referring hospitals. In an attempt to compensate, AnMed spearheaded an effort with the other hospitals to reopen, operate, and fund with their own money 15 inpatient beds at the state psychiatric hospital to provide psychiatric care to these patients and simultaneously alleviate boarding in their EDs. The consortium later increased the number to 20 inpatient beds at the state hospital and also established, again primarily with their own funds, an outpatient psychiatric treatment program to treat the patients after discharge from the hospital and diminish future ED visits, ED boarding, and repeated admissions. AnMed also aided psychiatrists in the county outpatient mental health clinics, who were similarly stymied by the lack of state inpatient beds, by allowing them to send their involuntarily committed patients to AnMed's ED to be held and treated in its five-bed ED psychiatric unit until space opened up at the state hospital. Prior to the CMS EMTALA investigation and OIG monetary penalty, AnMed even received a commendation from the South Carolina State Director of Mental Health for its efforts to improve psychiatric health care in its community.
Years ago AnMed actually admitted both voluntary and involuntarily committed (IVC) patients to its psychiatric inpatient unit. One of its IVC inpatients burned himself to death, prompting the hospital to seek outside expertise to review its psychiatric services. The consultant advised the hospital to cease admitting involuntary patients because its psychiatric unit lacked the necessary physical plant, clinical and ministerial expertise, and security measures to appropriately and safely service the involuntarily committed population. The hospital board, after due consideration of the issues, converted the unit to accept only “voluntary” admissions that met the hospital's published admission criteria. Historically, approximately 20% of the patients admitted under the voluntary status were indigent no-pay patients, and the payer mix of the admissions after CMS mandated that the hospital begin admitting IVC patients was about the same.
CMS and the OIG deemed that if the hospital could treat voluntary psychiatric patients on its inpatient unit then it could just as well treat involuntarily committed patients on its inpatient unit. This contention was undeniably belied by the fact that the hospital spent an extra $600,000 annually to meet acceptable standards of care for the IVC population. Besides, any experienced emergency psychiatrist will tell you that running a unit that accepts IVC patients is vastly different than a unit for only voluntarily admitted patients.
What was most disturbing is that the government was simply substituting its judgment about what services the hospital could or should provide over the considered judgment of the hospital's governing board, the administration, and the medical professionals of what they believed the hospital could provide without seriously jeopardizing the safety of its other patients or even its own staff.
AnMed had another option to assure its compliance with EMTALA—close its inpatient psychiatric unit—an option it considered. However, it felt obligated to and wanted to meet the psychiatric needs of the community it served, so it accepted the cost, effort, and risk associated with upgrading its psychiatric inpatient unit to appropriately manage involuntarily committed patients.
When the study authors reviewed AnMed's plan of correction they would not have found any disagreement with the CMS or OIG allegations because, first, there is no due process during the investigation and termination proceedings—the hospital has no recourse except to meet CMS's demands or it is terminated from Medicare; and second, the CMS regional offices will not allow the hospital to present its factual and/or legal disagreements with the government's assertions in the plan of correction, contrary to explicit direction from central CMS in Washington, DC, that the hospitals be allowed to include their disagreements in their submitted plan.3
Examination of the 5-day and 60-day QIO physician reviews would have revealed three interesting items underpinning the settlements (the 5-day review is done at the time of the investigation for CMS to use in determining whether to cite the hospital for violating the law and the 60-day review, which allows the hospital a hearing to present its side of the case, is required before the OIG can assess a CMP).
First would be the striking misunderstanding of the EMTALA statute by the reviewing physicians. Second was the refusal of CMS and the OIG to provide a copy of the 60-day physician review to AnMed Health prior to the settlement negotiations, despite unambiguous federal regulations that specifically require the government to provide a copy to the hospital, not just the OIG4 (and that inexplicably the hospital's attorneys failed to seek judicial enforcement of the regulations to obtain the report before negotiating with the OIG). Third, that after the hospital's hearing with the QIO, the QIO reversed its 5-day review determination that the AnMed ED had transferred 20 patients in an unstable condition to the state psychiatric hospital. Instead, the QIO now opined in its 60-day report that “The patient was stabilized by the ED ‘in the sense that’ his/her condition was unlikely to deteriorate upon transfer.” This “sense,” which is the legally correct “sense,” was ignored by the OIG.
A review of the hospital's submission for the 60-day QIO hearing addressing the CMS statement of EMTALA deficiencies and the 5-day QIO physician review would have likewise afforded a thought-provoking counter to the settlement as described by the OIG on its website and the authors’ case study.
Specifically, the authors note that “while patients in the investigation received medical screening exams by an emergency physician, the facility [AnMed] was cited for failing to obtain psychiatric screening exams.” CMS and the OIG actually made a blanket assertion that EMTALA required the hospital's on-call psychiatrist to personally come to the ED to screen and stabilize every patient who presented to the ED with psychiatric symptoms. In essence, the government claimed that residency-trained, board-certified emergency physicians were incapable of providing the appropriate screening and stabilization required by EMTALA for psychiatric patients.
But, the sole purpose of EMTALA's required medical screening examination (MSE) is to simply determine whether or not an emergency medical condition (EMC) exits.5 Consequently, the only EMTALA duty of the physician performing the MSE is to determine whether the patient has an acute medical condition of sufficient severity that the absence of immediate medical attention could reasonably be expected to result in serious adverse consequences.5 That's precisely the role and expertise of emergency physicians. Once the emergency physician determines an EMC exists, the MSE is legally completed, and there is no clinical rationale, nor is there any legal duty under EMTALA, to summon an on-call physician to the ED to “confirm” or “check” the emergency physician's determination that an emergency condition exists.
Moreover, there is absolutely no obligation in the EMTALA statute, in CMS's regulations, or in the EMTALA interpretive guidelines that requires an on-call psychiatrist to provide psychiatric screening or stabilizing treatment on behalf of the hospital. An on-call physician must provide care to patients in the ED under EMTALA only when requested by the emergency physician on-duty to assist in determining if an EMC exists or to stabilize an EMC, and this is true regardless if the medical condition is a medical problem, a surgical problem, a pediatric problem, a neurosurgical problem, or a psychiatric problem.
AnMed provided 24/7 mental health professionals (MHPs) under the direction of the on-call psychiatrist to assist the emergency physicians in screening and stabilizing psychiatric patients in the ED as needed. The on-call psychiatrist provided telephone consultation or in-person consultation in the ED whenever requested by the MHP or the emergency physician. CMS and the OIG also claimed that utilizing MHPs in this manner violated EMTALA, even though the EMTALA guidelines specifically allow a hospital to use nonphysicians under the direction of an on-call physician to provide screening or stabilizing services in its ED. The guidelines even state “in the event that the treating physician disagrees with the on-call physician's decision to send a representative and requests the actual appearance of the on-call physician, then the on-call physician is required under EMTALA to appear in person.”6
The authors also write that the OIG's website description “indicates that the on-call psychiatrist was not following the medical staff rules and regulation regarding urgent consultations (a two hour requirement).” However, they would have noted that this “violation” was absent from the formal settlement agreement between the parties; the 2-hour rule applied to inpatient consults, not ED consults.7 In the ED, the psychiatrist on call was duty bound to present to the ED whenever requested by the emergency physician, just like any other physician on-call.
Finally, in their case study the authors’ state, “Additionally, though the on-call psychiatrist was prescribing treatment modalities to the ED provider when requested, CMS noted that they were not providing stabilizing treatment on a daily basis to the patients in the ED.” This is the crux of the entire issue of dealing with psychiatric patients under EMTALA. When is a psychiatric patient stabilized? The AnMed emergency physicians truly believed that they had stabilized the psychiatric patients and that while the on-call psychiatrists may have been needed to treat the patient's emergency condition they certainly were not needed to stabilize the emergency condition.
The distinction between providing legally required stabilizing care compared to providing additional medical treatment poststabilization is what the government (and many a physician) fails to understand. EMTALA only requires stabilization of the patient's emergency condition; it does not require definitive treatment of that emergency condition (or at least this used to be true prior to CMS's recent misapplication of the law).
EMTALA defines “stabilized” to mean “with respect to an emergency medical condition … that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility.”8 CMS's own interpretive guidelines state that psychiatric patients are stable “when they are protected and prevented from injuring or harming him/herself or others.”9
Consequently, once the hospital ED utilizes its usual interventions to “protect and prevent psychiatric patients from injuring or harming themselves or others” (medical clearance, searched, secured, removal of means and opportunity to harm self or others) and provides sufficient treatment to ensure that the patient's condition is unlikely to deteriorate as a result of transfer, the patients with psychiatric emergencies have been “stabilized,” as that term is defined by EMTALA. Thereafter, the treatment on a “daily basis,” whether it's while the patient is boarded in the ED or an inpatient setting is simply not governed by EMTALA. State licensing laws, Medicare Conditions of Participation, professional standards of care, or public pressure from society as a whole may necessitate the utilization of hospital resources post stabilization, such as consultation from a psychiatrist or inpatient admission, but not EMTALA. The law only reaches so far. It is up to Congress to extend the protection of EMTALA to other situations, if it so chooses, not the executive branch agencies such as CMS or the OIG.
The EMTALA interpretations by CMS and the OIG in the AnMed case so concerned the American College of Emergency Physicians (ACEP) that it invited a CMS representative and the OIG attorney who prosecuted AnMed to its national meeting in 2017 to discuss the issues. Emergency physicians were startled to learn that CMS and the OIG interpret EMTALA to mean that “suicidal patients remain unstable until no longer suicidal.”10 This explained why the agencies believed the care of boarded psychiatric patients is governed by EMTALA and why they believed AnMed (and many other hospitals) illegally transferred patients in an unstable condition when they transferred patients to state hospitals for economic reasons. (It is not illegal under EMTALA to transfer patients for economic reasons, provided that they are stabilized at the time of transfer.)
The interpretation proffered by CMS and the OIG is unquestionably wrong. It totally ignores the express definition of “stabilized” in the EMTALA statute, CMS regulations, and CMS's EMTALA interpretive guidelines. It is also contrary to every single federal appellate court opinion on the definition of “stabilized” under the law. (For a detailed legal analysis of when psychiatric patients are stabilized under EMTALA see Bitterman.10)
The American Hospital Association and Federation of American Hospitals also believe that the government has overstepped its authority and is misinterpreting EMTALA with respect to who can screen or stabilize psychiatric patients, when a psychiatric patient is stabilized, and which patients hospitals must admit to their inpatient psychiatric units. They recently sent an extensive white paper to the Chief Medical Officer of CMS expressing their concerns and requesting that CMS rein in the regional offices.11 ACEP is presently considering doing the same, again.
In their statistical analysis of the OIG's assessment of CMPs under EMTALA, the authors conclude that settlements related to psychiatric emergencies compared to those for nonpsychiatric emergencies were more costly (~$85K vs. $32K), more frequently associated with multiple violations per settlement, more often associated with failure to stabilize violations, and constituted the vast majority of the largest settlements during the study period of 2002 to 2018. However, it is difficult to ascertain the meaning or the significance of these findings without considering the relevant variables governing CMPs that were not addressed in the study. These include the number of violations per settlement, the bed size of the hospital involved, and the time period of the violations and settlement.
Each settlement with a hospital may encompass only one violation from one patient encounter, or it may encompass many violations from many patient encounters, and a penalty can be imposed for each violation. The care of any one individual patient can and often does result in multiple violations. It would be more helpful to know how many violations there were per settlement when comparing the settlements.
Psychiatric settlements, particularly in recent years due to the change in the enforcement of the statute by CMS and the OIG, typically include more patients and more violations per patient than nonpsychiatric settlements because the violations often stem from a set hospital policy or practice, such as in the AnMed Health case, rather than the care of each individual patient.
The study also does not differentiate hospitals based on bed size. This is especially pertinent when comparing the amount of CMPs because the maximum penalty that can be assessed for each EMTALA violation is half as much for hospitals with less than 100 beds than for hospitals with 100 or more beds.12 What if the psychiatric settlements occurred at the larger hospitals and the nonpsychiatric settlements came more from the smaller hospitals?
Additionally, both the maximum allowable penalty and the factors the OIG used to impose the penalties changed during the study period. The authors noted that the maximum penalty increased from $50,000 to $103,139 in 2016. The maximum also increased in 2017 and 2018 by an inflation factor and is now $106,965.13 Was there a disparity in the timing of the settlements, such that more of the psychiatric settlements, especially ones with more violations per settlement, occurred during the “larger penalty amount” period?
In late 2016 the OIG changed the factors it uses to determine the amount of penalty it could assess for EMTALA violations. These factors allowed for greater penalties than previously for the same conduct, although the factors themselves are applied exactly the same whether it is psychiatric violation or a nonpsychiatric violation. They also boosted the OIG's ability to assess the maximum penalty in more cases.14 For example, the OIG deemed “aggravating circumstances” to include patient harm or even the risk of harm resulting from the EMTALA violation or the simple fact that the patient presented to the ED with an emergency condition. Moreover, the presence of any single aggravating factor was then sufficient to impose the maximum allowed CMP.14
What one cannot conclude under the study data is that one psychiatric-related violation of the statute was any more or less likely to result in a larger settlement with the OIG than was one nonpsychiatric violation of the statute. This apple-to-apple comparison would be more meaningful.
That “failure to stabilize” settlements were more common in psychiatric settlements can be explained, at least in large part, due to the fact that CMS and the OIG used a different (and improper) definition of “stabilized” in the psychiatric cases to assess the hospital's care under the law than the definition of stabilized it used in the nonpsychiatric cases.
The fact that none of the CMPs for psychiatric emergencies were assessed against individual physicians is an interesting observation. Why did the OIG not seek to impose monetary penalties on the physicians in the AnMed case? It was the emergency physicians that failed to consult the on-call psychiatrist to screen and stabilize the psychiatric patients, it was the emergency physicians and/or on-call psychiatrists who allegedly failed to stabilize the patients in the ED, and it was the emergency physicians who allegedly inappropriately transferred the patients in an unstable condition to the state hospital. Perhaps the OIG did not really think the physicians’ actions violated the statute and it was just angry that the hospital boarded the patients for days on end instead of admitting them or arranging prompt transfer to an inpatient psychiatric hospital. It may have been less confrontational to settle with the impersonal bricks and mortar instead of making it personal with a named physician who would have been much more disposed to challenge the OIG in court to protect both reputation and pocketbook.
The study also found regional differences in the source of psychiatric violations resulting in CMPs, with Region IV in Atlanta well outside the norm, and the authors suggested that further work is needed to determine if this reflects inadequate psychiatric care or enhanced enforcement. They may want to include two additional possibilities—a regional staff harboring an overzealous agenda and/or simple incompetence in interpreting the law.
In conclusion, the authors are to be commended for raising the issues of psychiatric care under EMTALA and highlighting the difficulties hospitals and physicians have in managing these patients in compliance with the law. However, it is respectfully suggested that a little more homework is in order to verify their conclusions.
