When is a Psychiatric Patient Stable under Federal Law, EMTALA?

Due to concerns over the government’s interpretation of EMTALA in the AnMed Health case, where the Office of the Inspector General (OIG) fined the hospital $1,295,000 for allegedly failing to stabilize psychiatric patients, the American College of Emergency Physicians (ACEP) invited senior CMS and OIG officials to discuss the issue at its annual educational meeting last October. When asked “Does a suicidal patient remain unstable until no longer suicidal?” Mary Ellen Palowitch, EMTALA Technical Lead for CMS, and Sandra J. Sands, senior attorney for the OIG, both said yes, absolutely; and wouldn’t walk it back even after being roundly criticized by everyone in the room for misinterpreting the EMTALA statute. They weren’t blindsided; this exact question was given to them in writing thirty days in advance of the conference, so they had ample time to thoughtfully consider and meticulously prepare their answer.

If they are right, the ramifications for providers, if suicidal patients are deemed “unstable” until no longer suicidal, are immense. Taken to their logical ends, these ramifications include:

• Hospitals with available inpatient psychiatric services would always be required to admit the patient, and could never transfer the patient out of their ED to any other hospital for any non-medical reason, such as:
  • repatriating a suicidal patient to a managed care hospital, such as Kaiser; or
  • transferring a publicly funded or Medicaid patient to a state psychiatric hospital or to a hospital that the state has contracted with to treat state patients; or
  • transferring involuntarily committed or ‘forensic’ patients to a state psychiatric hospital, even if the sending hospital only has a ‘voluntary’ admit inpatient unit.

• In other words, economic transfers of psychiatric patients would be per se illegal under EMTALA; and the states would be stripped of their authority to control the psychiatric care of their denizens.

• Hospitals with on-call psychiatrists would be required to mandate that the psychiatrist come to the ED to personally examine every suicidal patient, regardless of whether the emergency physician needed the on-call physician’s expertise to manage the patient.
• All transfers of suicidal patients would be considered unstable transfers, and hence governed by EMTALA, subjecting both the hospital and transferring physician to potential termination from Medicare and civil monetary penalties of over $100,000 per violation; potential civil liability under EMTALA for the hospital – possibly without the protections of state tort reform limitations, in addition to ordinary malpractice liability; and potential revocation or suspension of the physician’s state medical license for violating a federal law impacting patient care.
• All care of the suicidal patient in the ED, even if the patient is boarded for days or weeks would be governed by EMTALA, subjecting the hospital and treating emergency physicians and on-call psychiatrists to the same potential liabilities under EMTALA.
• Hospitals with inpatient psychiatric services, regardless of whether they had an emergency department, would be required under the law to accept in transfer any suicidal patient from any hospital without inpatient psychiatric services from anywhere in the United States, regardless of the patient’s insurance status. Note that the term ‘United States’ for purposes of EMTALA includes Puerto Rico, the US Virgin Islands, Guam, American Samoa, and the District of Columbia as well as the 50 states.)

Fortunately, the interpretation proffered by CMS and the OIG is, unquestionably, legally incorrect.

EMTALA Statute

When a hospital determines that a patient has an emergency medical condition (EMC), and suicidal intent is an emergency condition, it is required by EMTALA to provide either “within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition;” or if it lacks the capability to stabilize the patient’s EMC, for transfer of the patient to another hospital in a manner prescribed by the law. 42 U.S.C. 1395dd(b)(1).

EMTALA contains a specific definition for ‘to stabilize’, and when you insert that definition into the stabilization duty of EMTALA it requires a hospital –

• “to provide for such further medical examination and treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.” 42 U.S.C. 1395dd(e)(3)(A). Emphasis added.

Additionally, ‘stabilized’ is defined to mean –

• “with respect to an emergency medical condition … that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility.” 42 U.S.C. 1395dd(e)(3)(B). Emphasis added.

Notice that EMTALA’s stability definitions are not written in medical terms as understood by the medical profession, rather, they are written in terms of transfer (which includes discharges from the ED); which is entirely logical considering the historical underpinning of the statute – to prevent hospitals from transferring or discharging patients (“dumping them”) for economic reasons before their emergency conditions were sufficiently medically stabilized.

If a suicidal patient can be sent securely from one hospital to another in such a way that it is reasonably foreseeable that no harm (suicide or injurious attempted suicide) will result during the transfer or as a result of the transfer, then the patient is legally stabilized under EMTALA.

Even CMS has said that ‘‘for purposes of transferring a patient from one facility to a second facility for psychiatric conditions, the patient is considered to be stable when he/she is protected and prevented from injuring himself/herself or others.” 68 Fed. Reg. 53247 (2003).

Therefore, it doesn’t matter if the patient is still suicidal in route or upon arrival at the accepting hospital; as long as the patient arrives safe and secure and the accepting hospital can manage the patient’s suicidality the transferring hospital complied with the law.

These psychiatric patients are not being transferred for legal stabilization of their suicidality; they are being transferred for medical treatment of their suicidality. The distinction between legal stabilization, as defined by EMTALA, and medical treatment is critical though not widely understood. This distinction is addressed further below.

Federal Courts

The federal courts have always uniformly followed the plain language of the statute to hold that “if no material deterioration of the patient’s emergency medical condition is likely to result within reasonable medical probability as a result of the transfer, then the patient has been stabilized.” See for example, Gatewood v. Wash. HC Corp., or Thornton v. SW Detroit Hospital.

They also uniformly do not require resolution of the patient’s EMC. Illustrative cases include Green v. Touro Infirmary in which the 5^th Circuit held that “EMTALA does not impose a duty to fully cure an EMC before transferring or discharging a patient;” and the court in Nieves v Hospital Metropolitano which pointedly stated that “EMTALA requires only that a hospital stabilize an individual’s EMC; it does not require a hospital to cure the condition.” Thus, the suicidal patient’s suicidality does not need to be resolved in order to stabilize the patient.

Consider the thirty years of real world experience since EMTALA was passed. Many thousands of actively suicidal psychiatric patients have been transferred from hospital EDs to state and private psychiatric hospitals to obtain an evaluation by a psychiatrist and/or to be admitted for inpatient treatment –without any deterioration of their emergency psychiatric condition during or as a result of the transfer.

CMS and OIG – Quality Improvement Organizations (QIOs)

The government agencies are cognizant of the proper definitions of stability; they simply choose to ignore them. For example, the EMTALA Worksheet that CMS gives its QIO review physicians provides the following explicit instructions on assessing stability:

• Note to Physician Reviewer: Terms relating to “stabilization” are specifically defined under EMTALA. These terms DO NOT REFLECT the common usage in the medical profession, but instead focus on the medical risks associated with a particular transfer/discharge. Thus, when answering questions related to “stability” for EMTALA, please be very careful to refer to the definition provided below.

• Under EMTALA, to stabilize means, with respect to … an “emergency medical condition,” to provide such medical treatment of the condition necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer/discharge of the individual from the hospital …

• Q4. If the individual had an emergency medical condition (EMC), was the EMC “stabilized” (as defined above) prior to the time of the individual’s transfer or discharge?
• Yes or No; Please explain your clinical rationale:

The QIO physicians routinely check the ‘unstable at the time of transfer’ box, and the most common ‘rationale’ provided is that “the patient still required psychiatric evaluation and treatment” or that “the patient required further evaluation and care.”

In the AnMed Health case, CMS and the OIG claimed that every one of the 20 psychiatric patients transferred from the hospital’s ED to the state psychiatric hospital under involuntary commitment orders was unstable at the time of transfer, based solely on the QIO’s rationale that “the patient still required psychiatric evaluation and treatment.” There was no individual evaluation of the medical risks associated with any of the transfers, and absolutely no attempt to address whether the patient’s suicidal ideation or psychiatric condition was likely, within reasonable probability, to materially deteriorate in route or as a result of the transfer. Why did CMS and the OIG accept the QIO’s non-responsive assessment?

In fact, the 20 patients had been treated and boarded in AnMed’s ED for days or weeks before transfer to the state hospital. Neither the government nor its physician reviewer claimed that any problem, complication, or deterioration whatsoever arose during transfer or as a result of the transfer in any of the patients. The state psychiatric hospital was 5.6 miles from AnMed, the transport time was 11-13 minutes, and the patients were all transported in the back of a locked police car by two armed police officers. Does CMS, its physician reviewer, the OIG, or any experienced emergency physician really believe that these transfers were likely, within reasonable medical probability, to result in material deterioration of the patient’s emergency condition? Instead, wasn’t it extremely unlikely, and certainly not reasonably probable, that such a transfer would cause any deterioration, let alone material deterioration in a patient’s psychiatric condition, especially after the patient has been in the ED for many days waiting for a bed at the state hospital?

Whether the patient still needed further psychiatric evaluation and treatment is decidedly not the correct standard to apply when determining whether the patient is stabilized under EMTALA. Hospitals certainly recognize that the patients still need additional medical treatment, but not such additional treatment necessary to legally stabilize the patient according to EMTALA.

CMS EMTALA Regulations and Interpretive Guidelines

CMS’s own definitions of stability in the EMTALA regulations are exactly the same as the definitions in the federal statute. 42 C.F.R. 489.24(b). Moreover, CMS has acknowledged these definitions as controlling, even when the patient ‘needs further treatment’:

• “We note that the EMTALA definition of ‘‘to stabilize’’ requires only that such medical treatment of the condition be provided as may be necessary to assure, within reasonable medical probability, that no material deterioration of the individual’s condition is likely to result from the transfer (including discharge) of the individual from the facility. Thus, a hospital clearly may stabilize an individual, thereby satisfying its EMTALA obligation to that individual, even though follow-up care may be needed.” 68 Fed. Reg. 53245 (2003)

In addition, specifically for psychiatric patients, CMS interprets these stability definitions in its EMTALA Interpretive Guidelines to mean that:

• “Psychiatric patients are considered stable when they are protected and prevented from injuring or harming him/herself or others.” §489.24(d)(1)(i).

Thus, once the hospital emergency department utilizes its usual interventions to “protect and prevent psychiatric patients from injuring or harming themselves or others” (medical clearance, search, remove means and opportunity to harm self or others, and secure the patient), the patients with psychiatric emergencies have been “stabilized,” as that term is legally defined by EMTALA and CMS’s regulations and guidelines.

CMS and the OIG do not follow their own ‘protected and prevented from harm’ standard for stabilization either.

Why would CMS/OIG assert suicidal patients remain unstable until no longer suicidal?

In a word, control. They use EMTALA to regulate wide swaths of emergency care, particularly those aspects they dislike, far beyond the limits set by Congress. For example:

Govern psychiatric patient boarding in the ED, instead of judging only whether a boarded patient has been stabilized at the time of transfer. CMS and the OIG detest prolonged boarding of psychiatric patients in the emergency department (as do we all), but particularly if the hospital may have the capability of admitting the patient, as they alleged in the AnMed Health case. If the patients are deemed to be unstable as long as they are still suicidal, CMS and the OIG believe that EMTALA governs the care of the patient the entire time the patient is boarded in the ED, even if that’s for days or weeks.

However, every federal appellate court in the country that has addressed this issue disagrees. The courts hold that the only time a hospital has a duty to stabilize a patient with an EMC is at the time of transfer or discharge. For example, the 11^th Circuit flatly stated “There is no duty under EMTALA to provide stabilization treatment to a patient with an EMC who is not transferred.” The 1^st Circuit addressed the issue a number of times and has held ‘unequivocally’ that the hospital must have ‘bade farewell’ to the patient before it can be held to have failed to stabilize the patient. The 6^th Circuit, holds that EMTALA’s stabilization mandate only applies in the event of a transfer or discharge no matter how long the patient is boarded in the ED, or even how long the patient is in the hospital. The courts find this interpretation fully in keeping with the statutory intent, since EMTALA’s stabilization duty was written to restrict the hospital’s ability to transfer (or discharge) patients with emergency conditions until those emergency conditions were stabilized, i.e., inhibit ‘patient dumping’.

Thus, to determine whether the hospital legally stabilized the patient according to EMTALA, the courts only examine the patient’s condition at the time of transfer. If the patient has a known EMC at the time of transfer, that EMC is stabilized under EMTALA if the hospital provided enough examination and treatment necessary to assure, within reasonable medical probability, that the EMC would not materially deteriorate during or as a result of the transfer.

CMS & OIG – ‘at the time of transfer’

The interpretation of the federal courts does mean, though, that CMS/OIG do get to judge whether the suicidal patient was stabilized at the time of transfer from the ED – because these patients still have an EMC (suicidal intent) at the time they are being transferred to an accepting psychiatric facility, even if the transfer occurs days or weeks after the initial ED presentation.

In every case the issue should be whether it was likely, within reasonable medical probability, that the patient’s EMC would materially deteriorate as a result of the transfer. This assessment of whether the patient was stabilized at the time of transfer is an objective determination, just like ordinary malpractice. Would a reasonable and prudent emergency physician have transferred the patient at that time? Was it foreseeable that the patient would become uncontrollably agitated, psychotic, and materially deteriorate during transfer?

Because the definition of stabilized is written in terms of transfer, there is a litany of things the hospital must consider when deciding if it’s safe to transfer the patient. The transport time/distance, the transport mode and personnel (ambulance or law enforcement), the security of the patient in route, the capability of the accepting facility, were the patient’s medical issues adequately addressed before transfer, were medication issues addressed especially if the patient was medicated just prior to transfer, were foreseeable complications considered – all need to be contemplated.

However, the ED should almost never have to transfer a psychiatric patient in an unstable condition. More time, more meds, different mode of transport – whatever it takes so there is no doubt in the transferring physician’s mind that the patient is “protected and prevented from injuring him/herself or others” such that “no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to result from or occur during the transfer.”

It’s an individual facts and circumstances analysis, which needs to be done ‘at the time of transfer.’ Psychiatric patients may have been in the ED a long time, so it is paramount that the hospital reevaluates and retakes the vital signs of the patient at the time of transfer, document its findings, and reconfirms that the patient is still stable for transfer.

If CMS, its QIO review physician, and the OIG determine that the hospital did not provide the necessary care during the ED stay to assure that ‘no material deterioration of the emergency medical condition was likely, within reasonable medical probability, to result from or occur during the transfer’ they can and will punish the hospital for failure to stabilize the patient as required by EMTALA; and rightly so.

Hospitals and physicians only request that the government agencies use the correct legal standard to judge their care of psychiatric patients, not a bogus ‘needs further psychiatric evaluation and treatment’ standard, or the fabricated ‘unstable until no longer suicidal’ standard.

CMS & OIG – ‘during the ED stay’

However, the interpretation of the federal courts also means CMS and the OIG do not get to judge the medical care administered while the patient was boarded, provided the patient was stabilized before or at the time of transfer, or if the patient was never transferred. (The duties of hospitals that transfer patients in an unstable condition are an entirely different issue.) To quote the 1^st Circuit, “The duty to stabilize under EMTALA does not impose a standard of care prescribing how physicians must treat a critical patient’s condition while he remains in the hospital, but merely prescribes a precondition the hospital must satisfy before it may undertake to transfer the patient.”

For example, if the ED determines a woman who presented with an intentional drug overdose is actively suicidal, but negligently fails to search and secure the woman allowing her to double overdose in the ED and kill herself, there is no EMTALA liability for failure to stabilize her. The duty to stabilize only arises at the time of transfer, and she was never transferred. EMTALA’s definition of ‘transfer’ specifically excludes a person who has been declared dead. 42 U.S.C. 1395dd(e)(4).

If the double overdose doesn’t kill the woman, but instead sends her into a coma for which twelve hours later the ED transfers her to a hospital with neurological expertise, the EMTALA issue will be whether or not she was stable at the time of the transfer, not whether the hospital negligently failed to adequately search and secure her twelve hours earlier. If she was safely transferred to the neurological hospital with no deterioration of her coma state, then she was stable at the time of transfer and there is no EMTALA liability.

In each scenario, the hospital’s alleged negligence of failing to prevent her second overdose is a question of ordinary malpractice under state tort law, not an EMTALA issue. There may be other Medicare Conditions of Participation or Medicare quality issues that CMS can use to address the issue with the hospital, just not EMTALA. The law only creates a limited duty for hospitals related to stabilization, which essentially restricts the hospital’s ability to transfer a patient until the patient is stabilized. 42 U.S.C. 1395dd(b).

Change our overdose scenario to one hopefully more typical in the ED. This time the woman’s initial overdose is properly treated and resolved, she is adequately searched and secured so that all means and opportunity to commit suicide are effectively removed, she is observed for a period of time, and is now perfectly medically stable waiting for transfer to the nearby state psychiatric hospital on involuntary commitment papers. In other words, she has reached a point in time where she has been provided such medical treatment of her medical and psychiatric conditions as is necessary to assure, within reasonable medical probability, that no material deterioration of her emergency condition is likely to result from or occur during transfer to the state hospital (assume appropriate secure transport). She is legally stabilized according to EMTALA.

Nevertheless, CMS and the OIG contend the hospital still has an EMTALA duty to use the full resources of the hospital to provide whatever care it can to treat her condition while waiting for the transfer. This includes admitting her if the hospital has an inpatient psychiatric unit, utilizing any mental health recourse available to the hospital, and requiring the hospital’s on-call psychiatrist to come to the ED to provider further examination and treatment.

Unquestionably, if the hospital’s full resources are necessary ‘to stabilize’ (as defined by EMTALA) the patient’s EMC, the hospital must bring its full resources to bear. However, if those resources are not necessary ‘to stabilize’ the patient, then the hospital has no legal obligation under EMTALA to provide an inpatient bed, the mental health worker, or the on-call psychiatrist. State licensing laws, Medicare Conditions of Participation, professional standards of care, or public pressure may necessitate the utilization of hospital resources post stabilization, but not EMTALA. As the 10^th Circuit said, “EMTALA’s beneficent purpose should not obscure its inherent limitations.”

This is the distinction between providing legally required stabilizing care compared to providing additional medical treatment. EMTALA only reaches so far. It is up to Congress to extend the protection of EMTALA to other situations, if it so chooses.

Even CMS has stated that EMTALA ends once the patient is stabilized. When publishing its first regulation on the law in 1994 CMS said “The Act does not impose any requirements on hospitals with respect to the treatment or transfer of individuals whose emergency condition has been stabilized.” Moreover, CMS’s current Interpretive Guidelines state “After stabilizing the individual, the hospital no longer has an EMTALA obligation.” §489.24(d)(1)(i).

The federal courts uniformly agree that “The hospital’s responsibility under the statute ends when it has stabilized the individual’s medical condition.” Furthermore, “The stabilization requirement only sets forth standards for transferring a patient in either a stabilized or unstabilized condition. By its own terms, the statute does not set forth guidelines for the care and treatment of patients who are not transferred.”

This is why the government agencies need to claim the patient remains unstable until no longer suicidal, i.e., unstable the entire time in the ED as well as at the time of transfer. So they can use EMTALA to require hospitals to provide far more care than Congress intended or is required by the plain language of the statute; and so they can use EMTALA to control the transfer itself. See 42 U.S.C. 1395dd(b)(1)(B) and 1395dd(c)(2).

Require psychiatric patients to be transferred only to acute care hospitals with inpatient psychiatric services. CMS insists that hospitals must transfer these patients to other acute care hospitals with inpatient psychiatric services, and not to other facilities that may be fully capable of managing the patient’s condition but don’t meet the legal definition of a ‘hospital’ under Medicare. For example, state mental health departments, psychiatric crisis centers or residential treatment centers, or even jail/prison psychiatric units may be perfectly able to further assess and treat certain psychiatric patients; but hospitals are averse to send patients there, even those boarded for days in their ED, out of fear of a CMS citation for violating EMTALA.

Some hospitals have addressed their psychiatric boarding problem by establishing holding units, either on-campus or off-campus, to decompress their EDs and hold these patients until they are accepted at a hospital-based psychiatric facility. CMS will allow this arrangement, provided the holding unit is operated as a ‘department of the provider’ under the hospital’s Medicare provider number. CMS doesn’t consider ‘movement’ of patients between hospital departments to be a transfer under EMTALA. §489.24(a)(1)(i). However, if a consortium of hospitals wanted to establish a non-hospital based psychiatric holding/treatment center, as a group of hospitals in North Carolina once attempted to address the boarding/dearth of available psychiatric inpatient beds, CMS won’t allow it.

This CMS edict compromises hospitals’ ability to deliver psychiatric services, and further exacerbates the crisis in access to psychiatric services for ED patients. First, about two-thirds of hospitals totally lack the ability to provide psychiatric care while the patients are boarded in the ED; and second, fully 70-80% the patients actually don’t get admitted at the receiving hospital. Access to facilities with a psychiatrist other than inpatient psychiatric units at acute care hospitals would greatly accelerate and enhance the care of these patients, while simultaneously diminishing ED boarding and overcrowding.

Hospitals believe CMS is erroneously enforcing the statute. In fact, CMS’s own guidelines state that once a patient is stable EMTALA’s obligations end; and any further treatment, admission, or transfer decision is not controlled by EMTALA. §489.24(d)(1)(i). However, they dread the consequences of dealing with CMS, so instead they board the patients in their ED for days on end rather than send them in stable condition to appropriate alternative treatment centers.

Prohibit economic transfers of stable patients. If the ‘unstable until no longer suicidal’ standard is the law of the land, it means CMS and the OIG have usurped the role of Congress and unilaterally changed federal law by prohibiting the transfer of psychiatric patients for economic reasons. Hospitals with inpatient psychiatric services could never repatriate a patient to a managed care hospital nor transfer publicly funded or Medicaid patients to state hospitals or to a hospital that the state has contracted to treat state or Medicaid patients.

EMTALA was never meant to prevent transfers, even transfers made for economic reasons. It was enacted only to ensure that patients’ medical emergencies were sufficiently treated and stabilized before they were sent to other facilities. As Sen. Durenberger commented when the law was passed, “This amendment does not prevent hospitals from making appropriate and safe transfers of patients for economic reasons.”

The states certainly believe hospital EDs can stabilize psychiatric patients and thereby end the application of EMTALA, because they take control of the care of state funded patients after they have been stabilized in the ED. For example, under Tennessee law a publicly funded patient can’t be admitted or transferred to another hospital without the approval of a designated state pre-screening agent, and not until the agent has completed a ‘certificate of need’ certifying compliance with the state’s involuntary commitment statute. The Tennessee attorney general pronounced that these state requirements do not violate EMTALA because the patients have already been stabilized according to the definitions of EMTALA. Thus, the states believe it is legal to transfer psychiatric patients for economic reasons, and that it is their right to utilize state funds and resources in the way they deem best to serve the denizens of their state.

CMS and the OIG closely scrutinize psychiatric transfers, and compliance with EMTALA or even ordinary malpractice will be reviewed retrospectively with the knowledge that the decision was based on the patient’s lack of financial resources. Obviously, hospitals should carefully select which patients are transferred for economic reasons, assuring that such transfers occur smoothly and without any significant risk of harm to the patient.

Mandate hospitals accept psychiatric patients in transfer. EMTALA’s non-discrimination clause requires more capable hospitals to accept appropriate transfers of patients who require their services. 42 U.S.C. 1395dd(g). In the case of psychiatric patients, this is typically a hospital without inpatient psychiatric services asking a hospital with inpatient psychiatric services to accept a suicidal patient in transfer.

However, there are three prongs that must be satisfied before a potential recipient hospital has a legal duty to accept a patient in transfer. First, the patient requires treatment beyond the capabilities or facilities available at the transferring hospital; second the recipient hospital has the capability and capacity to provide the treatment the patient requires; and third, the patient must have an emergency medical condition that is unstabilized at the time of the transfer request.

The government agencies’ own appeals board, in the case of St. Anthony Hospital v. OIG, ruled that the transfer acceptance mandate requires the patient’s emergency condition to be unstable at the time of transfer. The court cited HHS’s express determination on this issue in the preamble to the EMTALA regulations that “the recipient hospital with specialized capabilities or facilities has an obligation under section 1867(g) of the Act to accept a transfer if the individual has an unstabilized emergency medical condition and if the hospital has the capacity to treat the individual.” The court added the emphasis.

CMS supposedly agrees with these requirements, though they don’t enforce it that way, since its EMTALA Interpretive Guidelines and a number of other CMS publications all state recipient hospitals have a duty to accept ‘individuals with an unstabilized EMC’, or ‘individuals protected under EMTALA’ (if the individual’s EMC is stabilized the individual is not protected under EMTALA).

In addition, the CMS Guidelines allow hospitals to decline to accept the transfer of a patient with a stabilized EMC based on insurance or financial issues “because EMTALA protections no longer apply once a patient is stabilized.” §489.24(d)(4).

Therefore, if the suicidal patient is stable when a psychiatric hospital is asked to accept the patient in transfer that hospital has no legal obligation under EMTALA to accept the patient in transfer. Consequently, CMS and the OIG must declare these patients to be unstable; otherwise they can’t enforce EMTALA against hospitals that decline to accept the patients in transfer on account of their insurance status, or for any other reason.

Fortunately, the government doesn’t need to concoct a new definition of stabilization under EMTALA in order to require hospitals to accept patients with EMCs that a transferring hospital can’t manage. CMS just needs to reinterpret the non-discrimination section of the law (the transfer acceptance mandate) to require Medicare participating hospitals to accept medically indicated transfers of patients with emergency conditions. That way it wouldn’t matter if the patient was stable or unstable, or whether the patient was an ED patient or an inpatient at the time of transfer; it would only matter that the transferring hospital couldn’t manage the emergency condition (i.e., it was medically indicated that the patient be transferred), and that the accepting hospital could manage the emergency condition.

The statute requires the acceptance of appropriate transfers. 42 U.S.C. 1395dd(g). The word ‘appropriate’ is not defined in the statute for purposes of accepting transfers (although it is defined for purposes of transferring unstable patients); thus it should be read to have its ordinary meaning of ‘suitable or proper in the circumstances’. In context of patient transfers, the obvious meaning would be medically indicated transfers.

Presently, CMS essentially sanctions economic discrimination against inpatients with EMC’s by allowing hospitals to refuse to accept inpatients with an EMC in transfer, even if unstable and for any reason including economic reasons. 42 C.F.R. 489.24(f)(2).

This includes a suicidal psychiatric patient admitted for purposes of treating an accompanying medical emergency, such as a drug overdose. Since the patient was admitted, no psychiatric hospital has a duty to accept the patient in transfer to treat the suicidality once the overdose is resolved, which could leave an uninsured patient stuck at the original hospital for who knows how long without any treatment of his suicidality. The transfer acceptance mandate was an amendment to the law; and it should be read to be an independent duty, not a duty dependent on whether EMTALA still applies to admitted patients at the transferring hospital.

Reinterpreting the non-discrimination clause as suggested would eliminate the foul allowance of economic discrimination against patients in the throes of a medical emergency. It would also address the need for capable psychiatric hospitals to accept suicidal patients in transfer from hospitals that are unable to treat their suicidality, regardless of whether the patient was in the ED or the inpatient setting, or whether the patient was stable or unstable at the time of transfer. Since it was CMS’s interpretation, rather than statutory language or court opinion, that was the origin of the ‘EMC must be unstabilized’ prong required before hospitals must accept appropriate transfers, CMS has the power to change that interpretation.

Conclusion

The legislative history, the plain language of the statute, and the uniform interpretation of the statute by the federal appellate courts all confirm the limited reach of EMTALA’s stabilization requirement. The only time a hospital has a duty to stabilize a patient with an emergency medical condition is at the time of transfer or discharge; and the suicidal patient’s suicidality does not need to be resolved in order to stabilize the patient.

The distinction between providing legally required stabilizing care and providing additional medical treatment was set by Congress to prevent hospitals from transferring patients before their emergency conditions were sufficiently medically stabilized, yet not encroach too far on the states’ right to control the health and safety of their people.

For providers, this legal distinction is important in order to avoid unnecessary government investigations, QIO hearings, OIG litigation and payment of monetary penalties, or even termination from Medicare; not to mention the enormous expenditure of time, effort, and money dealing with the government and a tainted reputation for ‘patient dumping.’

The government agencies shouldn’t enforce EMTALA as they want it to be; they should only enforce EMTALA as Congress wrote it to be. Access to health care is a societal issue and should be addressed in the legislative arena rather than via agency diktats. Hospitals and physicians petition the Congress to improve health care services, so too should CMS and the OIG if they feel there are holes in EMTALA or federal law governing emergency care that need fixing.

Back in 2003 CMS promised (68 Fed. Reg. 53247) to publish specific guidance on the treatment of psychiatric conditions for purposes of EMTALA. Perhaps now would be a good time to fulfill that promise, taking into account the interpretation of the federal statute by the federal judiciary, and after seeking input from all involved stakeholders.

__________

Dr. Bitterman is CEO of Bitterman Health Law Consulting Group, specializing in the federal laws and regulations governing hospital based emergency services and emergency medicine risk management and liability issues. He is a past member and chairman of the American College of Emergency Medicine’s Medical-Legal Committee who has published extensively on these issues, including authoring the widely used text on EMTALA “Providing Emergency Care under Federal Law: EMTALA.” He can be reached at robertbitterman@gmail.com or (704) 907-6524.