Neither CMS 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 20 patients AnMed Health transferred to the state hospital.¹ Whether the patient still needed “further psychiatric evaluation and treatment” may be a quality-of-care or standard-of-care issue, but it is certainly not an EMTALA issue.

Additional Questions

Why didn’t the OIG seek to impose monetary penalties on the emergency physicians? It was the emergency physicians who failed to consult the on-call psychiatrist to screen and stabilize the psychiatric patients, it was the emergency physicians who allegedly failed to stabilize the patients in the emergency department, and it was the emergency physicians who allegedly inappropriately transferred the patients in an unstable condition. Perhaps the OIG didn’t really think the physicians’ actions violated the statute and it was just angry that the hospital boarded the patients for days on end instead of admitting them or arranging prompt transfer to an inpatient psychiatric hospital. It may have been easier to settle with the impersonal bricks-and-mortar instead of making it personal with a named emergency physician who would have been much more willing to challenge the OIG in court to protect both reputation and pocketbook. Maybe there is more to the story that is damaging to the hospital than has been published to date, which led it to settle with the OIG for such an outlandish amount?

Summary

Dealing with government agencies with respect to psychiatric services in the emergency department can be extremely difficult, terribly frustrating, and very expensive. The expectations and compliance enforcement of CMS and the OIG often clash with clinical practice in the real world and may exceed what is actually required by the EMTALA statute. Emergency physicians and hospitals need to critically and urgently reassess their compliance with EMTALA with respect to the care of psychiatric patients in the emergency department.

Dr. Bitterman is president of Bitterman Health Law Consulting Group, Inc. in Harbor Springs, Michigan.

References

1. CMS Region IV EMTALA Citation against AnMed Health, CMS Certification Number: 42-0027, EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.
2. Civil monetary penalties and affirmative exclusions. Office of Inspector General website. Accessed Sept. 19, 2017.
3. Examination and treatment for emergency medical conditions and women in labor, 42 USC §1395dd(a) (2010).
4. CMS interpretive guidelines on special responsibilities of Medicare hospitals in emergency cases, §489.24(a)(1)(i) (2010).
5. Medicare program; participation in CHAMPUS and CHAMPVA, hospital admissions for veterans, discharge rights notice, and hospital responsibility for emergency care. Fed Regist. 1994;59(119):32100.
6. CMS interpretive guidelines on special responsibilities of Medicare hospitals in emergency cases, §489.24(d)(1)(i) (2010).
7. AnMed Health statement on EMTALA compliance [press release]. July 5, 2017.
8. OIG–AnMed Health EMTALA settlement agreement dated June 26, 2017. Bloomberg BNA website. Accessed Sept. 19, 2017.
9. Loughran M. Hospital’s $1.3M emergency treatment settlement causes alarm. Health Law Reporter. 2017;26(28).
10. Examination and treatment for emergency medical conditions and women in labor, 42 USC §1395dd(e)(3)(B).