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.
I have many questions on this case. I have been an ER nurse and administrator for over 25 years. In all the hospitals I have worked we have never voluntarily kept a mental health patient in the ER. Many times we were forced to keep them because the available mental health facilities would not take them for a multitude of reasons.
Maybe I am missing part of the story, but I know for a fact that ‘boarding’ a patient in the ER is NEVER the preference of the ER (this is of course my experience.)
In this case, they had beds and administration apparently chose not to use them. If there are no psych capabilities and no transfer destinations are available, the decision must be made and documented on how to provide the best protective care to the patient. And, yes, I agree no ED wants to board patients.
I am the CMO of a hospital health system in upstate New York. If the OIG wants to go around fining hospitals, they must work with the appropriate governmental agencies to provide enough mental health facilities across the country to provide that care. We have an inpatient mental health unit and accept patients from our local region and beyond, however we do not have a adolescent mental heath unit and those unfortunate children can spend days either in our ED or other units in the hospital which is doing a disservice for these children and their families. There are seasonal fluctuations that occur for children inpatient admissions for mental health care, but this has been well known for decades and there is no solution in sight, to address this issue, at least in our state.
Mental Heath services for adults and especially children and adolescents needs to be addressed more robustly and globally. I agree with the other writer that no ED wants to keep patients whose care needs are outside of what they can provide. I am not saying this hospital in this article was not at fault (the details of the case are not given), but improved solutions to treat these patients needs to be part of the answer, not just fining hospitals or health systems that are all struggling to meet financial bottom lines.
EMTALA law went into effect to prevent one hospital “dumping” on another based on their ability to pay. When looking at the access to inpatient mental health services, the issues are somewhat different as there is not a surplus of mental health beds. There are also issue with a shortage of qualified mental health providers, nurses, psych assistants, counselors etc. These are all issues that need to be addressed in totality beyond just the EMTALA laws. Between the increasing stress of our high paced society, the deterioration of the family, the opioid and alcohol addiction problems, this all leads to increase needs for mental health services. I do not see this trend subsiding anytime soon.
I think we can agree that lack of mental health resources has been an issue EVERYWHERE since the 1980’s when community-based mental health was adopted as a response to horrific conditions in mental health “asylums” and the government jumped on it to cut budgets. EMTALA followed very soon afterward. Please be aware, however, that EMTALA was called an “anti-dumping law” but was written as something very different — a mandatory access to health care law which requires care regardless of means or ability to pay. When hospitals and providers “choose” to participate in Medicare they make the difficult commitment to follow the rules set by CMS whether they are fair and profitable or not.
In this case, the OIG alleges that the hospital was skirting the rules by setting up a system that substituted “voluntary vs involuntary” as a surrogate for “insured vs. uninsured.” They allege the hospital basically warehoused patients when there were beds and specialists capable and EMTALA-mandated of rendering care. If that is correct, they were not in compliance with their contract with Medicare and are no better than the asylums of days gone by.
To be sure, there are insufficient mental health facilities and financial resources are limited, but we would not accept that kind of excuse for burn centers or other specialty centers to turn away frequently uninsured patients or warehouse them in the ED under the EMTALA rules.
EMTALA was written at a time when private hospitals in 25 or more states were allowed to turn away critically injured patients at their doors with no legal obligation of care. The law requires medical screening, stabilizing care, transfers for necessity only, on-call specialists for assessment and care, stabilizing care, appropriate transfer procedures, and extensive documentation precisely because of that. Most of the regulations we have today or enforcement patterns CMS uses are the result of practices in the healthcare industry to avoid those obligations and a regulatory response — not always an informed response — to a perceived failure to honor provider commitments.
CMS is definitely NOT always right, and they may not be right in this case, but as long as they are the enforcers, they will enforce the laws and regulations. Complaining about them to Congress is definitely a provider’s right, but until they get the rules changed through legislative or regulatory routes, they cannot be surprised when CMS does what it has been doing for 32 years and enforces the rules as they interpret them. Just like getting a ticket from a traffic cop on the street, you can go to court but is definitely better to avoid the ticket in the first place by avoiding speed traps — not always easy, but better.
Mental health cases appear to be one of the top CMS EMTALA speed traps
Thank you for your response. Definitely agree with all you have above. Hospitals that are discriminating patients based on reimbursement should be held accountable. I discussed this further with our ED Director today. He informed me more about the particulars of this OMI fine. Much of it was probably deserved, based on not filling open Mental Health beds based precisely on what EMTALA regs. tell them NOT to do. Over a period of time, that healthcare system probably saved that much in expenses they would have spent treating those patients as 1.2 Million is not a whole lot of money for most organizations. It did not exclude them from Medicare, which would have had more far reaching financial issues (not saying that is a good solution either). That would probably shut the hospital down.
Over the past several decades we have come a long way with the treatment of the mentally ill.. Hopefully over the next several it will improve further. I suppose it is up to our legislators and us (because we vote for them), to address this better. This is a group who have been ignored and patients who would have difficulty advocating for themselves.
Thanks again for your article and your response!