There seems to be a widespread misperception among freestanding psychiatric facilities that the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd (EMTALA), does not apply to them. This may or may not be true depending upon the licensure and the configuration of the facility. It is not as simple as a yes/no calculation.
There are three criteria that must be met before a facility can be held liable for a violation of EMTALA:
- It must be licensed as a hospital under state law.
- It must participate in the Medicare program.
- It must operate a dedicated emergency department (DED).
It is usually clear whether a facility is licensed as a hospital or if it participates in the Medicare program; facilities must sign a participation agreement in order to participate in Medicare, so it is not possible for a facility to be a participating hospital and not know it. Most, if not all, states require that a licensed hospital must operate an emergency department. If, however, the hospital is not required to have an emergency department, the Centers for Medicare and Medicaid Services (CMS) only requires that it have a dedicated emergency department to be covered by EMTALA, the definition of which is broader than an emergency department. CMS defines a DED as follows:
- A department that is licensed as an emergency department;
- A department that holds itself out as a provider of emergency services; or
- A department that sees at least 1/3 of its patients on an unscheduled basis for what may be an emergency medical condition (an intake area may be a DED).
If a patient comes to a hospital’s DED seeking treatment for what may be an emergency medical condition, the hospital is required to screen the individual to determine whether he or she has an emergency medical condition. This is an absolute duty — everyone seeking treatment must be screened. Psychiatric disturbances can be emergency medical conditions; in the context of a behavioral patient, this normally means that the patient is a danger to self or others.
If the person has an emergency medical condition, the person must be stabilized, admitted or transferred. Stabilization or admission is required if the hospital has the capability to stabilize the patient. It is a violation of EMTALA for a hospital to transfer a patient when it has the capability to stabilize or admit the patient. Similarly, it is a violation of EMTALA for a hospital to refuse to accept a transfer of a patient with an emergency medical condition if it has the capability to provide care for that patient.
It is important to be aware that a transfer is any movement away from a facility at the direction of someone affiliated with the facility. Consequently, a discharge can be a transfer for the purposes of EMTALA. Additionally, an interfacility transfer must be accomplished using appropriate equipment and personnel; a personal automobile is virtually never appropriate.
EMTALA imposes stiff civil monetary penalties for violations. Hospitals with 100 beds or more that violate the regulations may incur penalties of up to $103,139 for each violation, more than double the previous $50,000 penalty. Hospitals with fewer than 100 beds may incur penalties of up to $51,570, again more than double the previous penalty of $25,000. Physicians who fail to fulfill their on-call obligations are also subject to increased penalties — up to $51,570 per violation. Penalties are not covered by insurance. There is also the possibility of exclusion from the Medicare program.
Hospitals, but not physicians, are also subject to civil liability for injuries that the patient suffered as a result of the violation. In these cases, there are only two elements that must be shown in order to incur liability:
- The hospital violated the law.
- The patient was injured as a result of the violation.
Courts have held that emotional distress is a sufficient injury to find liability under EMTALA. The damages that can be awarded for a violation of EMTALA are the same as those allowed by state law in a medical malpractice action.
Consequently, psychiatric hospitals that do not believe that they are subject to EMTALA may be in for a rude awakening. A facility-wide policy to exclude psychiatric patients who do not have insurance may very well end up costing far more than it saved.
Learn more for CME:
We cover EMTALA and other medical-legal compliance issues extensively in our courses. You can explore them here.