psychiatry and mental health issues in the emergency room - EMTALA and State Law Compliance 9-30-14

10/2/2014 Conrad Meyer JD MHA FACHE 1

Legal Issues Affecting Care of Psych Patients in ERManaging the Common Challenges for Hospitals

Conrad Meyer JD MHA FACHEHealth Care Sections

Chehardy Sherman Law [email protected]

(504) 830-4141

Outline of Issues EMTALA Issues

Liability for Mental Health Patient Dumping

Louisiana Mental Health Law – Revised Statute Title 28

Admissions

Voluntary Admissions

Emergency Admissions

Judicial Commitment

Commitment of Prisoners

Outpatient Tx

Transfer/D/c of patients

Rights of Mental Health Patients

Louisiana ACT and FACT Teams

10/2/2014 2Conrad Meyer JD MHA FACHE

EMTALA and Psychiatry

EMTALA covers Psych Patients

CMS expanded the definition of “emergencymedical condition” to include psychiatricdisturbances and symptoms of substanceabuse (42 CFR 489.24(b)(1)

Since EMTALA applies to psych patients –ER must: Provide Adequate Medical Screening

Stabilizing Treatment

And Appropriate Transfer

Medical Screening – must screen for otherphysical illnesses – Look for hidden issues beyond psych condition



EMTALA (Cont.)

CMS comments on psych mostly deal with suicidal/homicidal – as psychiatricemergencies

However, other psych issues are hard to apply to EMTALA because mentalharm is harder to quantify than physical harm – more subjective

EMTALA Defines emergency medical conditions as Placing the health of individual in serious jeopardy

Serious impairment to bodily functions, or

Serious dysfunction of any bodily organ or part (See 42 USC 1395dd(e)(1)(A)

Only when psych condition can produce one of the three above does itqualify as an emergency medical condition

Almost every EMTALA case involves suicide



EMTALA (Cont.)

EMTALA also covers psych hospitals – if hospital accepts Medicare Most psych hospitals cover Medicare and are TJC accredited – EMTALA Applies

Most psych hospitals also have Ers

Psych Hospitals are obligated under EMTALA to respond within their limitsand transfer when appropriate

Psych ER must provide physician coverage at all times



EMTALA (Cont.)

If hospital lacks capability to perform mental health exam and have no mentalhealth professionals on staff – they do NOT have a duty under EMTALA toprovide Mental Health Screenings beyond their capabilities.

See case of Baker v. Adventist Health Inc – 260 F.3d. 987 (9th Cir. 2001). Hospital had no Mental Health Staff

Contacted (pursuant to written policy) crisis worker from another county to help withpatient with suicidal ideations

Patient was evaluated by other crisis worker and discharged – later committed suicide

Family filed EMTALA Claim – 9th Cir. Held for defense – Hospital did not offer psychtreatment was under no duty to perform mental health screening and followed its policies



EMTALA (Cont.)

Medical Screening requirement for psych patients

ER Physician has dual duty in this situation: Medical screening must be adequate to reveal not only emergent psych conditions, but also

physical medical emergency conditions

EMTALA applies to patients who go to psychiatric intake services if it meetsdefinition of “Dedicated Emergency Department” as well as to emergencydepartment

For Psych patients – medical records must contain assessment of suicide orhomicide attempt or risk, disorientation, or assualtive behavior that indicatesdanger to self or others.



EMTALA (Cont.)

Other dangers to ER for psych patients include masking of potential CVA

Subdural Hematomas

Drug overdose

Medication side effect

Gastrointestinal bleeding

Infection



EMTALA (Cont.)

Before transfer of psych patient topsych facility – screening must extendto labs and radiology if needed to ruleout physical emergency condition

Mental status exam should be verythorough

Should also include drug and ETOHscreening –

Head injuries should include CT scanto rule out physical emergencies

Transfer of patient with emergencyun-stabilized condition could beEMTALA violation



EMTALA (Cont.)

EMTALA does not require hospital to detect every diagnosis!

Only Appropriate medical screening be performed to rule out medical, toxic,or traumatic cases for behavior.

See Barber v. HCA – 977 F.2d 872 (4th Cir. 1992) Patient convulsed while roaming ER in hyperactive agitated state

Post fall – patient exhibited increased agitation and slurred speech

ER doc attributed symptoms to psych condition and transferred patient

Post transfer patient suffered seizure and found to have fracture/subdural hematoma

Patient transferred back but died that same day

Family sued hospital – Court ruled in favor of hospital – Cant diagnose every possibility on ascreening



EMTALA (Cont.)

Eberhardt v. City of Los Angeles – 62 F.3d 1253 (9th Cir. 1995) Patient was seen in ER for drug use

Released with instructions to follow up with rehab

Patient committed suicide the next day by death by cop

Family sued hospital – EMTALA violation for releasing patient in unstable condition

Court held for hospital – no EMTALA violation for non-apparent suicidal tendency whichdid not constitute emergency medical condition

CMS will closely screen the medical record to determine proper assessment –rule out other physical emergent conditions or simply “cleared for psych”

CMS will review adequacy of psych evaluation

Document Document Document!


EMTALA and Psychiatry EMTALA (Cont.) –

Requires stabilizing “protecting” psych patients

Once stabilized EMTALA no longer applies – patients can then betransferred – even for economic reasons

Psych stabilization is completed when: by use of medication or physicalrestraints, the patient can be protected from hurting himself or others.

Problems arise in ER as to when a psych patient is “stable” for transfer – Suicidal and homicidal ideations are not truly stabilized in ER

Physician can subdue a patient with medication or restraints but patient may still be dangerto self or others.

Difficulty for ER and Hospital to transfer patient for risk of EMTALA violation



EMTALA (Cont.) –

June 1998 – CMS cleared issue related to transfer of psych patients

CMS defined stable as when “patient is protected and prevented frominjuring himself or others. For purposes of discharging a patient, for psychconditions, patient is considered to be stable when he is no longer considereda threat to himself or others.” – See EMTALA interpretive guidelines Part IITag A-2407/C-2407 – 5/29/09.

Public psych facility (without adequate medical facilities) may refuse transferof patient if patient has additional dangerous medical problems.

A patient who is stable in a hospital with large staff and support may beconsidered unstable in a psychiatric hospital where medical monitoring is lessavailable.



EMTALA (Cont.) –

ER Physician should document – patient is stable for transfer because of: Medical Evaluation

Chemical Restraints

Physical Restraints

Must also document when using chemical or physical restraints or seclusionwere necessary because less adequate measures where feasible

Follow guidelines in Title 28 in La Revised Statutes for time limits onrestraints/seclusion

Look at reasonable person standpoint to determine restraint or seclusion

ER physician cant simply restrain and transfer psych patient as such commonpractices would likely be viewed as EMTALA and patient’s rights violations.



EMTALA (Cont.) –

Carlisle v. Frisbie – 888 A.2d 405 (N.H. 2005) patient successfully suedhospital for unstabilized psychiatric emergency.

Patient drove to Frisbie because of depression and suicidal ideation

Dr. Jackson (ER) asked patient if she wanted counselor (from a guidancecenter) but patient declined because patient was employed by guidance center.However, patient was willing to see another counselor



EMTALA (Cont.) –

Carlisle v. Frisbie – 888 A.2d 405 (N.H. 2005) (cont.)

Dr. Jackson called police who arrested patient for ETOH and put her in jail

Dr. Jackson medically cleared patient – notated in records – and confirmedpatient ready for protective custody for suicidal ideation and ETOH. Patientwas in jail for 14 hours before release –

Post incident patient became more ETOH and increased suicidal ideation

Brought action against hospital and Dr. Jackson –EMTALA violation againsthospital, negligence on Dr. and violation of patient bill of rights

Jury found for plaintiff on all counts



EMTALA (Cont.) –

Carlisle v. Frisbie – 888 A.2d 405 (N.H. 2005) (cont.)

Upheld by New Hampshire Supreme Court – ruling Dr. Jackson did notproperly stabilize patient as she was in an emergency medical condition Should have transferred to another medical facility

EMTALA trumped state law – allowing police officers to take people ETOH for 24 hours



Discharge – if hospital does appropriate medical screening and does not findan emergent medical condition as defined by EMTALA and hospital is notaware of any emergency medical condition, then patient is stable for discharge

Pettyjon v. Mission St. Joseph’s Health System, Inc. No. 01-1140 (4th Cir.W.D.N.C. – Oct. 30, 2001 Patient went hospital feeling isolated and depressed

Dr. Ogron (ER) examined patient and found him to be physically stable

Dr. Counts-Kuzma (Psych Social Worker) conducted psych examination – concluded patientwas bi-polar but was not in danger

Dr. Ogron offered to admit but patient refused

Patient was discharged with instructions to take meds – six days later patient committedsuicide

Family filed suit claiming failure to stabilize – Trial court granted summary judgment tohospital – Court rule that hospital treated patient same as other patients – non-apparentsuicide is not a factor



EMTALA does not cover transfers from inpatient psych units – See 68 Fed.Reg 53,263 (2003).

CMS has establised that EMTALA does not apply to inpatient transferswhether medical or psych.



EMTALA provides some guidance on which psych conditions are covered bynot exclusive list – some include: Hx of drug ingestion in patient with coma or impending coma

Depression with feelings of suicidal ideation

Delusions, sever insomnia, helplessness

Hx of assualtiveness, self mutilation, destructive behavior

Objective documentation of inability to maintain nutrition in patient with altered mentalstatus

Impaired reality testing accompanied by disorder behavior

Individuals with impending delirium treatments, detox, or siezures.



Intoxicated person may meet definition of EMC – because of lack oftreatment may cause health to be in jeopardy, bodily functions to be seriouslyimpaired or bodily organ to become seriously dysfunctional

Intoxicated person may have unrecognized trauma –

CMS wants to document why psych patient does not have EMC



EMTALA Preempts conflicting state laws.

Some states have pre-arranged plans for treatment of psych conditions arecertain facilities – despite these plans – EMTALA still applies

Patients who refuse to transfer may be forced to transfer without EMTALAviolation if patient requires commitment to a psych facility for his own good.– but must be stabilized first to meet EMTALA


Louisiana Mental Health Law

Purpose Mentally Ill and Substance Abuse (SA) encouraged to seek

voluntary tx.

Involuntary tx – when medically appropriate; return pt. tocommunity asap; least restrictive to pt.’s liberty

Must provide continuity of care to pt.

Delivery of tx. Must be near to pt.’s residence

Protection of individual rights

No person solely b/c of Mental Illness, ETOH, SA shall beconfined in jail.

No person shall be denied tx. b/c of AMA or for relapse.


Admission

Voluntary and Involuntary

Voluntary LA R.S. 28:52

Any person suffering from MentalIllness or SA can apply for admissionto Tx. Facility.

Physicians are encouraged to admitvoluntary pts.

Cant prohibit pts. From applying forvoluntary admission duringinvoluntary status.

Mental Health provider cant state ptwill be involuntarily admitted unlessthey voluntary admit – exception foremergency certificate or judicialcommitment


Admission Voluntary Admission (Cont.)

Pt. must be told of other tx. Programs

Pt. must be told of process for releasefrom facility

Pt. must be told of rights

Voluntary admit is based on capacity –determined by physician

Only allowed tx. With therapy andmedication – no surgery or shocktherapy without consent.

Informal Voluntary Admission – 28:52.1

Discretion of director of facility tovoluntary admit pt. for Mental Illness orSA

Patient can leave any time during 9-5pm


Admission

Formal Voluntary Admission

LA RS 28:52.2

Any person suffering from Mental Illness or SA who desires admission tofacility and deemed suitable for voluntary admission by physician can beadmitted for 72 hour evaluation period.

Cant be detained for longer than 72 hour period – except for emergencycertificate or judicial commitment – post request for discharge by pt.


Admission

Non-Contested Admission

LA RS 28:52.3

Incapacitated pt. who seeks voluntary admission – can be admitted

Same rights as voluntary admit

14 day time period for evaluation

After evaluation – determination for informal or formal voluntary status

Objection to continued evaluation requires release of pt. within 72 hoursof objection – unless emergency or judicial commitment.

Cap of 3 months on status


Admission

Admission by relative

LA RS 28:52.4

Person suffering from Mental Illness (MI) or SA can be admitted tofacility for observation not to exceed 28 days based on coroner’sdetermination of immediate examination. See LA RS 28:53.2

Procedure for commitment is listed in 28:53.2

OPC – Order of Protective Custody – facts regarding conclusion of MIor SA.


Admission

Admission by relative (cont.)

False statements about Mental Illness or SA to Coroner is punishable byimprisonment

Some immunity for providers under 28:53.2(H) – good faith provision ofservices for defined commitments are not liable for damages suffered bypt as a result of commitment.

Requires phyiscian evaluation within 12 hours of admit to facility.Physician must execute emergency certificate post eval and coroner mustconcur to continue 28 day evaluation period.


Emergency Certificate - PEC

LA RS 28:53

MI or SA pts can be admitted and detained for 15 days under emergencycertificate.

MI or SA pts can be admitted for one additional period of 15 days with asecond emergency certificate. Second certificate requires an additional evaluation within 72 hours prior to termination

of original emergency certificate.

Physician must issue emergency certificate.


Emergency Certificate - PEC

LA RS 28:53

PEC must contain specific criteria outlined in statute:

Attorney for pt can request a probable cause hearing to determinecontinued confinement under PEC.

Pts are informed of procedures for requesting release

Can receive medical tx or therapy but no surgery or shock therapywithout consent

Peace officer or EMT can also decide if patient is candidate forinvoluntary admission if patient meets certain criteria

No person shall be placed in custody to exceed 72 hours withoutevaluation


OPC – Order of ProtectiveCustody

LA RS 28:53.2 OPC may be obtained by any coroner

Requires statement of facts including:

Date and place of dangerous acts or threats

Name of any other person in danger

Facts showing person sought has been encourage to seek treatmentand is unwilling to be evaluated on a voluntary basis

Facts showing that affiant contacted specific treatment facility orphysician to obtain examination of person sought to be treated.

Shall issue order for involuntary treatment

Subject taken into protective custody and transported to facility

72 hour evaluation

Can used forced entry to detain subject


Judicial Commitment

LA RS 28:54 Procedure

Any person can file a petition for judicial commitment

Relates to person suffering MI or SA (if danger to self or others)

Petition must contain facts

Court will hear petition within 18 days of filing

Respondent shall get notice of hearing and can be represented by MentalHealth Advocate (if indigent)

Respondent can put on evidence to rebut petitioner

Court can issue order to respondent to be admitted to facility for tx

No liability for providers acting in good faith


Judicial Hearings

LA RS 28:55 Hearing on Petition for Judicial Commitment

Respondent can have own counsel

Allowed a defense

Court can examine respondent and determine if tx is needed

Court can order transfer to facility

Clear and convincing standard

Every patient shall be informed of release procedures

Only tx for therapy and medication – no surgery or shock therapy

Can administer medication involuntarily


Judicial Appeals

LA RS 28:56 Maximum of 180 day period for commitment

Court can reissue order for commitment for another 180 days

Maximum of four 180 periods

All judicial commitments require a 90 day review of order by court


Commitment of Prisoners

LA RS 28:59 Prisoners may be committed to proper facility

Criminal Court can release prisoner from commitment hearing if prisonerlacks capacity. However, Civil Court can order commitment – Judicial


Limitation of Liability

LA RS 28:63 Licensed professionals are immune from civil and criminal liability

For treatment

For commitment of patients

Only for public and private hospitals

Must show evidence of non-violent intervention training prior 12 months


Mental Health Advocacy

LA RS 28:64 Created and governed by a Board of Trustees

Provides legal counsel to patients for voluntary/involuntarycommitments, legal competency, change of status, transfer, and discharge

Counsel shall have access to patient records

Counsel shall have right to consult with client/patient


Patient’s Rights

LA RS 28:171

Patients have constitutional rights – State and Federal

No presumption of incompetence

Incompetence shall be separate from judicial commitment determination

Patients have permitted unimpeded, private, and uncensoredcommunication with people by mail, telephone or visitation

Such rights may be restricted by director of facility for cause

Any restrictions require notice to patient’s counsel or next of kin


Patient’s Rights

LA RS 28:171 (cont.)

Patients can speak to attorney any time

Facility must provide for ease of correspondence, reasonable access totelephones, and space for visitation

Time periods for telephone use and visitation are acceptable

For SA patients visitation can be restricted for initial treatment but notlonger than 7 days


Patient’s Rights


Seclusion and restraints

Used only to prevent injury to self or others

Seclusion cannot be used for punishment

Seclusion requires the following:

Used only when verbal intervention or less restrictive measures fail

Used only in cases of emergency

Threats, Self destructive behavior, suicide or homicide.

By written order of provider

Seclusion cannot last more than 12 hours

Orders must be dated – for evaluation , seclusion, and time for ordersigned

Renewal for Seclusion can only be for 12 hours


Patient’s Rights


Patients shall have periodic monitoring – Seclusion patients must bemonitored every 15 minutes

Patients shall be release from seclusion or restraints as soon as possible

Mechanical restraints shall be designed and used to avoid physical injuryand least amount of discomfort

Seclusion or restraint must have written policies concerning use in placeprior to execution

Use of the Administrative Procedure Act (APA) for rules regarding rights


Patient’s Rights


Patients can be placed in “time out” –

Placement in room imposed only when less restrictive measures arenot adequate

Placement in room alone must be done by qualified personnel

Can exceed 30 min

Patient must be supervised and observed

Cant exceed 3 hours in a 24 hour time period

Date and time must be documented

Written policies must be in place


Patient’s Rights


Patients shall have right to wear their own clothes, posses toilet articles,can spend his or her own expenses for private space, facility must providetoilet articles or clothes if patient cant afford it.

Patient shall have right to be employed at useful occupation dependingon condition and available facilities

Patient shall have right to be discharged when condition has changed orimproved where confinement is not needed. Director can dischargewithout court approval

Right to a private attorney – either own or through advocacy

Right to a hearing by court within 5 days of filing request for discharge

Right to habeas corpus

Right to visited and examination by provider of his own choosing


Patient’s Rights


No medication may be administered except by provider

Right to individualized treatment plan

Right to treatment that is medically appropriate

Right to religious method of healing except when mental disorder ordanger to self or others.


Penalties LA RS 28:181

Improper Commitment

Fined $1000

Or 1 year in prison or both

Maltreatment of patient

$500 or 6 months in prison or both

Furnishing Weapons

$500 fine or

2 years in prison or both

Furnishing Intoxicants

$500 fine or

1 year in prison or both

Unlicensed Counseling

$500 fine or

1 year in prison or both


Assertive Community Treatment

Teams of ten professionals – psych MDs, nurses, mental health professionals,substance abuse professionals, employment specialists, housing personnel,and peer group specialists.

Collaborative effort to treat patient

Up to 100 patients

Home visits 3x per week

Elegibility

Dx of persistent and sever mental illness

Two or more hospitalizations within six months prior to engaging in ACTservice

Hx of failure in Tx delivery system

Louisiana has ACT Teams – NOLA, B.R., L.C., Laf., Alex,Shreveport


Forensic AssertiveCommunity Treatment

Same as ACT except eligibility requires twoencounters with L.E. within six months prior toservice delivery

Fact teams are in NOLA/BR



Questions Please contact:

CONRAD MEYER JD MHA FACHE

Health Care Section - Chehardy Sherman

One Galleria Blvd Suite 1100

Metairie, La. 70001

(504) 830-4141

[email protected]

Date post:	05-Dec-2014
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psychiatry and mental health issues in the emergency room - EMTALA and State Law Compliance 9-30-14

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