“After stabilizing the individual, the hospital no longer has an EMTALA obligation. The physician may discharge the individual home, admit him/her to the hospital, or transfer the individual to another hospital depending on his/her needs.”⁶

If the government does interpret EMTALA to mean that emergency physicians are incapable of providing psychiatric screening and stabilization, it is duty-bound to issue formal written guidance/opinion explicitly stating that interpretation and to include specific citations to supporting statutory or regulatory authority. As one can imagine, such an interpretation would be contrary to almost universal existing practice in the United States and incite serious concerns within the hospital community and emergency medicine residency programs, particularly since HHS funds, through the Medicare program, 167 EM residencies, all of which have the diagnosis and treatment of psycho-behavioral disorders as one of their major core-curriculum disciplines and core-competencies necessary for board certification in the specialty of emergency medicine.

Do Hospitals No Longer Have the Right to Define Their Scope of Services?

CMS forced AnMed Health to admit patients involuntary committed under the state’s civil commitment law to its inpatient behavioral health unit, despite the fact that for more than 30 years the hospital had a written board-approved policy of only admitting “voluntary” patients for confidential short-term psychiatric care. The IVC patients were previously always transferred to the nearby state psychiatric hospital about six miles away.¹

Historically, Medicare-participating hospitals have been allowed to define their service capability/capacity (scope of services), and as long as they provide that capability/capacity uniformly to all comers on a nondiscriminatory basis, they comply with EMTALA.

In response to a commenter’s EMTALA question regarding whether a hospital was required to treat emergency psychiatric disorders regardless of a hospital’s capabilities, CMS stated long ago:

“Neither the [EMTALA] statute nor the regulations mandate that hospitals expand their resources or offer more services. Rather, they focus on the hospital’s existing capabilities. The thrust of the statute is that a hospital that offers emergency services to some members of a community who need their emergency services (for example, those that can pay) cannot deny such services to other members of the community with a similar need.”⁵

The inpatient management of IVC patients requires substantially greater resources and capabilities than the care of voluntary patients, as the hospital discovered after it started admitting IVC patients.⁷ This included structural changes to the unit, enhanced physical plant security measures, greater security staff presence, enhanced security training of all staff members, additional staffing (and increased staff turnover due to the “difficulties” in managing this patient population), additional training of staff related to involuntary commitments under state law, increased liability insurance issues, additional legal expertise and availability for holding formal court sessions related to the IVC processes once a week, and the implementation of telepsychiatry to meet the additional services burden on the psychiatrists.