United States: New EMTALA Guidance Addresses Psychiatric Hospitals And Patients With Behavioral Health Emergencies

On July 2, 2019, the Centers for Medicare & Medicaid Services (CMS) released a guidance document, addressed to State Survey Agency Directors, entitled "Frequently Asked Questions on the Emergency Medical Treatment and Labor Act (EMTALA) and Psychiatric Hospitals" (FAQ). See QSO-19-15-EMTALA.

The medical screening exam (MSE) required by EMTALA is the topic of the first three questions in the FAQ. Surveyors can review a state's scope of practice laws, as well as hospital bylaws, rules and/or regulations, to investigate whether hospital staff providing the MSE are appropriate "qualified medical professionals" (QMPs) under state and federal laws. If hospital staff designated as QMPs are expected to perform services outside their scope of practice, this may be a violation of EMTALA regulations. This clarification is relevant to certain recent survey activity of concern to providers. In 2018, for example, CMS pursued citations of dozens of hospitals in Tennessee for utilizing labor and delivery nurses as QMPs solely for assessing whether the patient was in active labor, claiming such a diagnosis as "active labor" was beyond Tennessee's scope of practice afforded to registered nurses.

CMS goes on to clarify (in a manner helpful to providers) that EMTALA does not require a psychiatrist to provide an MSE of a presenting behavioral patient. That is:

CMS then indicates that psychiatric hospitals may lack the ability to perform a robust MSE or provide stabilizing treatment for a patient with a medical emergency. CMS goes on to state that there is "no expectation that a psych hospital with basic clinical services would be expected to provide the same level of comprehensive medical assessments or treatment as an acute care hospital." It is unclear whether CMS is referring to freestanding behavioral hospitals offering only behavioral health services, or whether CMS would apply this same rationale to an off-campus, provider-based behavioral health unit that is physically separate from the main hospital's ED.

Addressing the concepts of capability and capacity, the FAQ notes that, on the one hand, "[c]apacity includes whatever a hospital customarily does to accommodate patients in excess of its occupancy limits...(e.g., moving patients to other units, calling in additional staff, borrowing equipment from other facilities)," but on the other hand, "it can be appropriate to transfer patients to other hospitals even though the index hospital may have open inpatient beds" (e.g., if a necessary specialist is unavailable).

The above point clarifies (in a manner helpful to providers) that CMS does not treat all inpatient beds as fungible and available to any patient, without regard to the patient's particular needs. This should be particularly the case given that Medicare payment rules for inpatient behavioral health services (Psych-IPPS) require (among other things) separateness of behavioral beds from routine medical/surgical beds. If, however, there is an available bed in a behavioral health unit but a patient is nonetheless transferred to another facility (or is declined as a receiving facility transfer) CMS will expect a hospital to demonstrate to a surveyor why it was necessary to seek transfer when an inpatient bed was available.

Though stating the obvious, CMS clearly indicates that "EMTALA only applies if the [MSE] determines there is an emergency medical condition," and that "Not every patient that presents to a dedicated emergency department...has an emergency medical condition." The guidance quotes the regulatory definition of "emergency medical condition," but does not further discuss its application to patients with behavioral health symptoms.

Finally, the FAQ emphasizes the non-discriminatory purpose of EMTALA. CMS states that, in determining whether EMTALA requirements (such as the MSE) are met, "we are guided by EMTALA's stated purpose, which is to prevent hospitals from denying necessary medical care to individuals that may not be able to pay for the care." In other words, it directs surveyors to consider whether the hospital is "withholding otherwise available stabilizing treatment based on a patient's ability to pay."

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