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

Legal Issues Affecting Care of Psych Patients in ER
Managing the Common Challenges for Hospitals
Conrad Meyer JD MHA FACHE
Health Care Sections
Chehardy Sherman Law Firm
cm@chehardy.com
(504) 830-4141
10/2/2014 Conrad Meyer JD MHA FACHE 1

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

EMTALA and Psychiatry
 EMTALA covers Psych Patients
 CMS expanded the definition of “emergency
medical condition” to include psychiatric
disturbances and symptoms of substance
abuse (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 other
physical illnesses –
 Look for hidden issues beyond psych condition

 EMTALA (Cont.)
 CMS comments on psych mostly deal with suicidal/homicidal – as psychiatric
emergencies
 However, other psych issues are hard to apply to EMTALA because mental
harm 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 it
qualify 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 limits
and 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 mental
health professionals on staff – they do NOT have a duty under EMTALA to
provide 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 with
patient 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 psych
treatment 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 meets
definition of “Dedicated Emergency Department” as well as to emergency
department
 For Psych patients – medical records must contain assessment of suicide or
homicide attempt or risk, disorientation, or assualtive behavior that indicates
danger 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 to
psych facility – screening must extend
to labs and radiology if needed to rule
out physical emergency condition
 Mental status exam should be very
thorough
 Should also include drug and ETOH
screening –
 Head injuries should include CT scan
to rule out physical emergencies
 Transfer of patient with emergency
un-stabilized condition could be
EMTALA 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 a
screening

 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 which
did 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 (Cont.) –
 Requires stabilizing “protecting” psych patients
 Once stabilized EMTALA no longer applies – patients can then be
transferred – even for economic reasons
 Psych stabilization is completed when: by use of medication or physical
restraints, 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 danger
to self or others.
 Difficulty for ER and Hospital to transfer patient for risk of EMTALA violation

 June 1998 – CMS cleared issue related to transfer of psych patients
 CMS defined stable as when “patient is protected and prevented from
injuring himself or others. For purposes of discharging a patient, for psych
conditions, patient is considered to be stable when he is no longer considered
a threat to himself or others.” – See EMTALA interpretive guidelines Part II
Tag A-2407/C-2407 – 5/29/09.
 Public psych facility (without adequate medical facilities) may refuse transfer
of patient if patient has additional dangerous medical problems.
 A patient who is stable in a hospital with large staff and support may be
considered unstable in a psychiatric hospital where medical monitoring is less
available.

 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 seclusion
were necessary because less adequate measures where feasible
 Follow guidelines in Title 28 in La Revised Statutes for time limits on
restraints/seclusion
 Look at reasonable person standpoint to determine restraint or seclusion
 ER physician cant simply restrain and transfer psych patient as such common
practices would likely be viewed as EMTALA and patient’s rights violations.

 Carlisle v. Frisbie – 888 A.2d 405 (N.H. 2005) patient successfully sued
hospital 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 guidance
center) but patient declined because patient was employed by guidance center.
However, patient was willing to see another counselor

 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 confirmed
patient ready for protective custody for suicidal ideation and ETOH. Patient
was 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 against
hospital, negligence on Dr. and violation of patient bill of rights
 Jury found for plaintiff on all counts

 Carlisle v. Frisbie – 888 A.2d 405 (N.H. 2005) (cont.)
 Upheld by New Hampshire Supreme Court – ruling Dr. Jackson did not
properly 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 find
an emergent medical condition as defined by EMTALA and hospital is not
aware 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 patient
was 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 committed
suicide
 Family filed suit claiming failure to stabilize – Trial court granted summary judgment to
hospital – Court rule that hospital treated patient same as other patients – non-apparent
suicide 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 transfers
whether medical or psych.

 EMTALA provides some guidance on which psych conditions are covered by
not 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 mental
status
 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 of
treatment may cause health to be in jeopardy, bodily functions to be seriously
impaired 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 are
certain facilities – despite these plans – EMTALA still applies
 Patients who refuse to transfer may be forced to transfer without EMTALA
violation 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. to
community 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 be
confined 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 Mental
Illness or SA can apply for admission
to Tx. Facility.
 Physicians are encouraged to admit
voluntary pts.
 Cant prohibit pts. From applying for
voluntary admission during
involuntary status.
 Mental Health provider cant state pt
will be involuntarily admitted unless
they voluntary admit – exception for
emergency certificate or judicial
commitment

Admission
 Voluntary Admission (Cont.)
 Pt. must be told of other tx. Programs
 Pt. must be told of process for release
from facility
 Pt. must be told of rights
 Voluntary admit is based on capacity –
determined by physician
 Only allowed tx. With therapy and
medication – no surgery or shock
therapy without consent.
 Informal Voluntary Admission – 28:52.1
 Discretion of director of facility to
voluntary admit pt. for Mental Illness or
SA
 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 to
facility and deemed suitable for voluntary admission by physician can be
admitted for 72 hour evaluation period.
 Cant be detained for longer than 72 hour period – except for emergency
certificate 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 hours
of 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 to
facility for observation not to exceed 28 days based on coroner’s
determination 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 MI
or SA.

Admission
 Admission by relative (cont.)
 False statements about Mental Illness or SA to Coroner is punishable by
imprisonment
 Some immunity for providers under 28:53.2(H) – good faith provision of
services for defined commitments are not liable for damages suffered by
pt as a result of commitment.
 Requires phyiscian evaluation within 12 hours of admit to facility.
Physician must execute emergency certificate post eval and coroner must
concur 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 emergency
certificate.
 MI or SA pts can be admitted for one additional period of 15 days with a
second 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 determine
continued confinement under PEC.
 Pts are informed of procedures for requesting release
 Can receive medical tx or therapy but no surgery or shock therapy
without consent
 Peace officer or EMT can also decide if patient is candidate for
involuntary admission if patient meets certain criteria
 No person shall be placed in custody to exceed 72 hours without
evaluation

OPC – Order of Protective
Custody
 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 treatment
and is unwilling to be evaluated on a voluntary basis
 Facts showing that affiant contacted specific treatment facility or
physician 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 Mental
Health 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 prisoner
lacks 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/involuntary
commitments, 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 uncensored
communication 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 to
telephones, and space for visitation
 Time periods for telephone use and visitation are acceptable
 For SA patients visitation can be restricted for initial treatment but not
longer than 7 days

Patient’s Rights
 LA RS 28:171 (cont.)
 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 order
signed
 Renewal for Seclusion can only be for 12 hours

Patient’s Rights
 LA RS 28:171 (cont.)
 Patients shall have periodic monitoring – Seclusion patients must be
monitored 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 injury
and least amount of discomfort
 Seclusion or restraint must have written policies concerning use in place
prior to execution
 Use of the Administrative Procedure Act (APA) for rules regarding rights

Patient’s Rights
 LA RS 28:171 (cont.)
 Patients can be placed in “time out” –
 Placement in room imposed only when less restrictive measures are
not 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
 LA RS 28:171 (cont.)
 Patients shall have right to wear their own clothes, posses toilet articles,
can spend his or her own expenses for private space, facility must provide
toilet articles or clothes if patient cant afford it.
 Patient shall have right to be employed at useful occupation depending
on condition and available facilities
 Patient shall have right to be discharged when condition has changed or
improved where confinement is not needed. Director can discharge
without 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
 LA RS 28:171 (cont.)
 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 or
danger 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 ACT
service
 Hx of failure in Tx delivery system
 Louisiana has ACT Teams – NOLA, B.R., L.C., Laf., Alex,
Shreveport

Forensic Assertive
Community Treatment
 Same as ACT except eligibility requires two
encounters with L.E. within six months prior to
service 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
cm@chehardy.com

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