With the largest EMTALA fine (civil monetary penalty) in the history of the 1986 law, the Office of Inspector General (OIG) has fired what appears to be a massive warning shot across the bow of hospital emergency departments across the country. On June 23, 2017, AnMed Health in Anderson, S.C. entered into a $1,295,000 settlement agreement with OIG to settle allegations of multiple EMTALA violations arising from boarding psychiatric patients in the emergency department while there were empty beds in the hospital psychiatric unit.
Over the history of EMTALA enforcement, typical fines have run less than $100,000 and the largest prior fine of which the Publisher is aware was less than a third of the recent settlement.
Prepare for EMTALA enforcement assault:
“This settlement signals a new level of EMTALA enforcement is here. The increased level of fines, and an anticipated increase in complaints from patients and their advocates, means that the government will be motivated to come after hospitals more frequently,” according to Mark Kadzielski, a nationally recognized health law and EMTALA expert.
“This settlement highlights the vulnerabilities of hospitals that are not well-equipped to handle psychiatric patients. Warehousing mental health patients and not transferring them for a significant time period presents serious issues. Not admitting such patients at facilities where appropriate inpatient services are actually available is a clear violation. Hospital ERs must revaluate all of their policies in light of this settlement,” Kadzielski said.
Bringing the big guns on target
Kadzielski’s point about forcing hospitals to re-evaluate their mental health practices is re-enforced by the fact that OIG obviously handled this as a case of high importance both by the massive fine they chose to assess in this case and by the fact they assigned their top veteran EMTALA attorney, Sandra Sands, to oversee the case personally.
In addition, the apparently serious nature of the case may have presented the OIG with an ideal set of circumstances to make a highly visible point.
According to the OIG press release, AnMed was cited for 36 incidents where patients with unstable psychiatric conditions presented to the AnMed emergency department. OIG alleges that instead of being examined and treated by an on-call psychiatrist, and even though there were open beds in the hospital psychiatric unit, AnMed physicians issued involuntary commitments on the patients and kept them in the hospital Emergency Department for a period ranging from 6 to 36 days.
The practice of “boarding” patients in the emergency department has generally been criticized by CMS, but is still relatively common for psychiatric patients, nationwide. The practice has become more prevalent as state and private hospital psychiatric beds have steadily declined, and it has become more difficult to locate available beds to transfer psychiatric patients for facilities that do not have psychiatric capabilities. Joint Commission standards also tend to be critical of boarding practices as a problem in patient flow that can result in heightened risk for patients and inefficiencies for staff. Joint Commission defines boarding as holding patients in the ED for more than 4 hours awaiting admission or transfer.
Mental Health is a lingering problem
This case is not the first occasion OIG has had to be aware of the difficult problem that evaporating mental health capabilities pose for EMTALA compliance. In 2005, a Technical Advisory Group (TAG) was detailed by Congress to advise CMS on controversial issues arising from EMTALA. Among those issues were agenda items to determine medical screening standards for psychiatric presentations and the possible development of protocols. When the TAG authorization expired in 2007, no mental health recommendations emerged, and one member of the mental health group commented: “We could not even agree on a chairman.”
The changing threat
The OIG foray into the issue threatens significant changes for hospitals on the mental health issue.
- OIG is a single office rather than multiple offices with differing enforcement patterns as the CMS regional offices. They can make their views stick across the country.
- The OIG has the incentive of being able to levy huge fines to make their point.
- The days of ever-increasing budgets may be over for agencies such as OIG, so future “revenue resources” may have to come from bigger fines.