Legal & Regulatory
EMTALA obligations for psychiatric patients By John C. West, JD, MHA, DFASHRM, CPHRM
The Emergency Medical Treatment and Labor Act (EMTALA) was passed in 1986 and governs the obligations of licensed hospitals that participate in the Medicare program with respect to patients with emergency medical conditions. Psychiatric units and facilities often believe that it does not apply to them, or they are cavalier in their efforts to comply with it. If the entity is a licensed hospital, or operates within a licensed hospital, that participates in Medicare, the Act is fully applicable to them. Such entities disregard EMTALA at their peril. I N TR O D U C TI O N The boarding of patients with behavioral issues in medical/surgical hospital emergency departments (EDs) is common in the United States. This is generally due to 2 factors: the decrease in the number of inpatient beds for behavioral patients1 and an increase in the number of patients who need intensive psychiatric care in an inpatient setting.2 States have cut 4500 inpatient psychiatric beds, or 10% of the total supply.2 Given the lack of inpatient care, there are three general alternatives for patients with intensive psychiatric issues: EDs, prison,3 or the community. This sorry state of affairs has led to long waits in the ED, often measured in days, rather than hours. Although the scale of the problem may never be known, it is commonly believed that psychiatric units and facilities are increasingly selective regarding the patients they will accept for admission. Facilities will often refuse to accept forensic patients (those who have committed a crime) or sexual predators, but may also refuse to accept patients without a payer source. This may have implications under the Emergency Medical Treatment and Labor Act (EMTALA).4 However, this is true only for hospitals that have signed a Medicare participation agreement.5 An entity is not subject to EMTALA if it does not participate in the Medicare program or is not licensed as a hospital.6 While this article is not meant to be an exhaustive treatise on the law of EMTALA, it will discuss the issues surrounding the care and treatment of psychiatric patients by hospitals that have signed an agreement to participate in the Medicare program. This is an issue that many psychiatric facilities and units appear to be overlooking. There appears to be a widespread belief in behavioral health facilities that EMTALA does not apply to them because they do not have an ED. Such facilities, if they are participating hospitals, may be acting at their peril.
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AP PL I CABILITY OF EMTALA TO P SY CHIATRIC FAC ILITIES General requirements The basic rule behind EMTALA is that, if a person comes to an ED and seeks care for what may be an emergency medical condition (EMC) and, if an emergency medical condition is detected, the person is entitled to stabilizing care within the capabilities of the facility, or a transfer to a facility that can provide stabilizing care. Additionally, if a participating hospital offers specialized services and has the capacity to treat a patient, that facility is required to accept a patient needing those services in transfer, and may be liable for “reverse dumping” if it fails to accept the transfer.7 These are terms of art and have specific meaning in the law.
(3) During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.8 Most psychiatric facilities have an intake area that may meet the requirements of either (2) or (3) above, since they are areas where patients with emergency medical conditions can be evaluated on an unscheduled basis. Thus, they usually have a DED, and that requires them to comply with EMTALA if they are hospitals or in hospitals that participate in the Medicare program.
As noted above, EMTALA requires that the person have an emergency medical condition in order to trigger the protections of the act. The definition of emergency medical condition includes:
S P E C I FI C E MTA LA R E Q U I R E M ENT S F O R P S Y C H I ATR I C FA C I LI TI E S / U N I T S
(1) A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in—
If a patient comes to a DED seeking care for what may be an emergency medical condition, or on whose behalf such care is sought, the patient must be screened to determine whether an EMC exists. This is an absolute obligation under EMTALA. The duty to stabilize (discussed below) is a conditional obligation: It arises when the facility detects an EMC. If the facility does not know the patient is suffering from an EMC, there is no duty to stabilize the patient’s condition.
(i) Placing the health of the individual in serious jeopardy; (ii) Serious impairment to bodily functions; or (iii) Serious dysfunction of any bodily organ or part.8 It is clear that the statute intends that psychiatric and substance abuse disorders are covered as emergency medical conditions if the absence of treatment would place the patient’s health in jeopardy (eg, by committing suicide).
Dedicated emergency department (DED) It is true that EMTALA applies only to hospitals that have EDs,8 but the Centers for Medicare and Medicaid Services (CMS) has enlarged what it means to have an ED. CMS has implemented regulations that state that if a hospital has a “dedicated emergency department,” then it has an emergency department for the purposes of EMTALA. In order to be classified as a DED, the facility must have an area that meets one of the following requirements: (1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; (2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
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Emergency medical screening
The rule of thumb is that the screening should not be discouraged, delayed, or denied based on the patient’s ability to pay.9 It is, theoretically, acceptable to ask about insurance before the screening is completed as long as it does not delay or discourage the patient from having the screening, but there is a fine line here between following the statute and violating it. It is best to avoid talking about payment until the screening has been completed. The screening must be provided within the capability of the hospital’s DED, including ancillary services routinely available to the DED, to determine whether or not an EMC exists.10 Courts have generally required that the screening be “appropriate,” by which they mean that it cannot be different from the screening afforded to other, similarly situated, patients. EMTALA is not a federal medical malpractice statute: It does not require that the screening be non-negligent (state malpractice law will cover it if it is negligent). It can generally be proved that the patient’s screening was not disparate by the production of protocols, policies, or assessment forms. If the facility cannot produce some form of documentation regarding what it considers to be an appropriate screening, courts have allowed patients access to the medical records of other patients (with individually identifiable information redacted) to prove that the screenings provided to other patients were different from theirs.11
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It is sometimes the case that patients will be brought by family or law enforcement to a psychiatric facility for evaluation, and will not be there of their own free will. These patients may refuse to be screened. This is a difficult issue. The general rule is that competent persons have the right to refuse examination or treatment, but persons suspected of having a psychiatric condition are often not competent to refuse care. If the patient refuses the screening, and it appears that he or she is competent to do so, and it does not appear that he or she poses a risk of injury to self or others, it may be possible to allow it. However, the facility needs to document the proposed examination and treatment in the patient’s medical record and must seek to obtain written documentation of the patient’s informed refusal of the screening. In order to obtain the patient’s informed refusal, providers must discuss with the patient the risks of forgoing care and the benefits of obtaining care.12
Stabilization Stabilization should not be confused with curing. It may not be possible to “cure” a psychiatric condition, but it may be possible to stabilize it so that no material deterioration of the patient’s condition is likely to occur in the foreseeable future. In order to stabilize a patient for transfer, the facility must “provide such medical 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 [the] facility.”13 If the patient is admitted, the facility must do so in good faith with the intention of stabilizing the patient’s condition.14 It is rarely the case that a patient with an emergency psychiatric condition can be discharged. If he or she is discharged, it should only be in situations in which it is felt that the patient will not pose a threat to self or others and can safely receive care in an outpatient setting. It may also be the case that a patient will be a threat to self if he or she is unable to function safely outside a safe environment.15 Although it is a Medicare statute, EMTALA covers all patients, not just Medicare beneficiaries, including those who are unable to pay. If a facility performs an appropriate screening and detects an EMC, the facility must either transfer the patient (if it does not have the capacity to treat the patient) or admit the patient (if it does have the capacity to treat the patient). Capacity includes the facility’s licensed or staffed-to-operate beds but may also include provisions for operating above capacity. According to the regulations, “Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits.”16
Signage A participating hospital needs to post a sign or signs advising patients of their rights under EMTALA in all DOI: 10.1002/jhrm
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locations where they will be noticed by patients coming into the unit. As a general rule, no member of the public should be able to access the unit without passing an EMTALA sign. In common areas, the sign should be legible at 20 feet by a person with normal eyesight. In smaller areas, such as intake cubicles or rooms, the signs may be smaller. There is currently no required verbiage for the sign, but language for the sign has been suggested.17
Transfers out If a psychiatric facility transfers a patient to another facility, it should occur because the transferring facility does not have the capacity to care for the patient. This is often not simply a question of available beds or staff. It is not true that all psychiatric units should be equipped to care for all psychiatric patients. While most psychiatric units may be equipped to manage suicidal patients, they may not be equipped to handle forensic patients or sexual predators. It is important to develop a formal scope of services that specifically describes the types of patients for whom the psychiatric unit can provide care. This should be based on a realistic appraisal of the training and experience of the staff, the numbers and types of staff members available, and the physical configuration of the unit. If a question arises regarding the facility’s “dumping” of a patient, the facility should be able to point to its scope of services to show that it did not have the capacity to care for the patient. The hospital that has been asked to accept the patient in transfer must have the capacity to accept the patient and must accept the transfer. If the transferring facility feels that the transfer was wrongly rejected, it is required to report the same within 72 hours.18 Patients have the right to refuse to consent to a transfer. If this happens, the facility must discuss the risks of remaining and the benefits of being transferred to another facility.19 However, if the patient has been involuntarily committed, he or she will not have the right to refuse a transfer. It is only in the case of a transfer for a voluntary admission that a patient has the right to refuse. Under no circumstances should a participating hospital transfer a patient to another facility based solely on the patient’s ability to pay for care if the transferring facility has the capacity to care for the patient.
Transfers in As noted earlier, there is a very real scarcity of psychiatric inpatient beds relative to the demand for them. This can make it very difficult for medical/surgical hospitals without a psychiatric unit to find placement for a psychiatric patient in its ED. Since a behavioral patient in an ordinary ED is not receiving care in a safe environment, it is critical to transfer the patient to an appropriate level of care as quickly as possible.
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It is critical that the receiving facility base its decision to accept or deny the transfer from another facility on its capacity to care for the patient. This is, again, where a formal scope of services can be enormously beneficial. If the facility has made an objective assessment of its capabilities and determined that it cannot safely care for a particular category of patient, it is within its rights to deny the transfer. If a facility believes that it has wrongly received a patient (“been dumped on”), it is required to report the incident within 72 hours.20 Under no circumstance should the personnel who are responsible for accepting or denying a transfer ask about the patient’s payer status. This decision should be based solely on the facility’s capacity to care for the patient in order to preclude an allegation of reverse dumping. A participating hospital will be in violation of EMTALA if it refuses the transfer of a patient that it had the capacity to treat. It will be particularly egregious if this decision was made on the basis of the patient’s payer status.
Appropriate equipment Transfers need to be accomplished using qualified personnel and appropriate equipment.21 For patients with emergency medical (as opposed to psychiatric) conditions, this usually means that they need to be sent by ambulance. An appropriate transfer of a behavioral patient may be accomplished by ambulance, but more often it is accomplished by law enforcement personnel. Liability may attach for failure to use appropriate equipment and staff to effect the transfer.22 It is virtually never appropriate to transfer a patient with an unstabilized psychiatric condition by personal vehicle, despite the remonstrations of family members.
C O N S I D E R ATI O N S FO R ME DI C AL / S U R GI C A L H O S P I TA L E D S P R I O R T O TR A N S FE R Since medical/surgical hospitals are, through no desire on their part to engage in this line of business, becoming de facto behavioral health units, there are a number of things that they should consider in keeping patients safe for the duration of their stay in the ED. It is not always clear when EDs should implement safety precautions for behavioral patients (eg, must it wait until the screening has been completed?). This writer is of the opinion that precautions should be implemented as soon as the staff members have a reasonable suspicion that the patient may be a danger to self or others. It would certainly be preferable to defend a claim for false imprisonment rather than wrongful death. There are both structural and staffing solutions to many of these safety issues.
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Removal of contraband As soon as it is felt that the patient may be a danger to self or others, the patient should be searched for sharps and drugs, and shoelaces and belts should be removed. Ideally, the patient should be placed in a gown, although some facilities allow them to wear scrubs. It must be remembered that patients may be able to hang themselves using their pants. The search and removal of clothing and personal items should be done as soon as possible after a determination of a threat to self is made to avoid allowing the patient to secrete hazardous materials somewhere in the room or above the ceiling. Whenever a patient needs to use the bathroom, the bathroom should first be checked for contraband (razors, mouthwash, etc).
than would be possible in a non-safe environment. Some ideas for making a room safe would be to include as many of the following features as possible: • Furniture should be heavy or immovable (to prevent barricading the door). • Door can be secured to prevent unauthorized egress. • No projections that could support the weight of a human body • Sharps container removable or can be secured; all sharps removed from room. • Nothing present that could be used as a weapon.
Behavioral observation units
• Ceiling is solid or tiles are clipped in place.
If a facility has a high volume of behavioral patients that it is boarding at all times, it may be practical to move them out of the ED altogether. A bed in the ED is a valuable piece of real estate, and it should turn over rapidly in order to keep the ED functioning properly. It is possible to set up an observation unit where behavioral patients can be housed pending a transfer. It is important to designate this as an observation unit. If it is designated an inpatient unit and the patients are “admitted” to it, the facility will find itself in the business of caring for behavioral patients and will be required to accept transfers of behavioral patients from other facilities. If it is technically a part of the ED and patients have not been admitted, it is not a behavioral health unit.
• Room is configured so that staff can monitor patient.
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If the unit is set up as a safe environment, the unit can have lower staffing levels than would be possible using sitters in the ED. It is typically the case that sitters cannot effectively attend to more than 2 or 3 behavioral patients in the ED. In a behavioral observation unit, the facility may be able to operate effectively with a much higher staff-to-patient ratio. It also allows the facility to hire nurses with a background in behavioral health or to train current nurses more extensively in behavioral health. Although there is certainly an expense involved in setting up a unit to be a safe unit, there may be savings in the long term if the volume of behavioral patients remains high. If the observation unit is secured or has other features that would impede egress in an emergency (eg, locked doors that open only with a key or card unless the fire alarm is activated; secured fire extinguishers and alarm boxes, etc), the facility should obtain the approval of the local fire marshal having jurisdiction before occupying the unit.
Safe rooms An alternative to setting up a behavioral observation unit is to establish safe rooms in the ED in which to provide care for behavioral patients. If safe rooms are developed, it may be possible to allow sitters to watch more patients DOI: 10.1002/jhrm
• Hinges on door are continuous and sloped downward at the top. • Inside handle on door is sloped downward. • No cabinets, or if present, can be secured. • No cords or lines are present, or they can be secured prior to use. • No grates or grilles or grates/grilles have small enough openings that nothing can be threaded through them. • Light fixtures are recessed with unbreakable cover and tamper-proof screws. • Panic button is present (may be secured) or staff carry personal alarm devices while in room. • No smoke detector or smoke detector is recessed. • No wastebasket or wastebasket that does not have plastic liner. • No sprinkler head or sprinkler head is recessed or tamper resistant. • No vision panel in door, or if present, is impact resistant. • No mirrors or mirrors made of unbreakable substance. Again, as with the behavioral observation unit, many of these features in a safe room should be approved by the fire marshal. It is certainly possible to render an ordinary examination room safe when a safe room is required. If the facility chooses this route, it should try to implement as many of the preceding safety features as possible into the convertible safe room. Safe rooms can reduce the number of sitters necessary to watch behavioral patients, but they do not obviate the
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need for sitters. Sitters should still provide an appropriate level of supervision for behavioral patients.
Sitters/Observers24 It is preferable to have someone, such as a sitter, whose job it is to watch the patient to ensure that he or she does not try to leave or to injure himself or herself. Facilities sometimes place behavioral patients where they can be directly observed from the nurses’ station, but as the adage goes, when something is everybody’s job, it is nobody’s job. It is best to assign this responsibility to someone. Sitters may be required in any environment, although the higher the level of safety, the lower the number of sitters for a given number of patients. Sitters can be nurses, certified nursing assistants (CNAs), or security officers. Although security officers are used in many EDs, it is preferable to use people with some clinical background to function as sitters. It is probably not appropriate to use volunteers or nonclinical staff (other than security officers) to function as sitters. If security officers are used as sitters, they need to understand that CMS forbids the use of tasers or other nonlethal devices as a method to control patient behavior.25 The function of the sitter is, simply, to watch the patient. The number of patients that one sitter can watch may be variable. If the patients are asleep at night and the patients are in adjacent rooms, 1 sitter may be able to watch 3 patients. During the day, and, again, if the rooms are adjacent, 1 sitter may be able to watch 2 patients, unless the sitter is required to keep the patient within arm’s length at all times. If all of the patients are in safe rooms, the number of patients that a sitter could watch could be higher. Whoever is used as a sitter, sitters need to be carefully trained on how to perform their function. They must understand that the patient must always be within the zone of observation and supervision (eg, 1:1, intensive observation, continuous observation, etc). This includes when the patient is in the bathroom. The bathroom should also be safe (no sharps, plastic trash can liners, or hazardous liquids) and have nothing that would allow the weight of a human body to be suspended from it (eg, shower heads, shower rods, faucets, toilet hardware, and grab bars). Many of these items can be obtained commercially,26 including grab bars around which nothing can be tied. It may be acceptable to allow the sitter to stand or sit outside the bathroom door with the door ajar. If the patient is allowed to smoke, the sitter should accompany him or her outside and have control of smoking paraphernalia (cigarettes, lighters, and matches) at all times. The patient should never be left to smoke unattended outside the ED, even if it is in an enclosed courtyard. If the sitter is engaged in an activity involving a patient that takes him or her away from other patients he or she is supposed to be watching, someone should be required to fill in for the sitter. Sitters also need to be aware that they need to devote their attention to the patient. Sitters should not read magazines 10
or newspapers, or check their e-mail on their phones. Sitters should not be asked to do other work while performing the duties of a sitter. One of the primary obligations of a sitter is to be the eyes and ears of the ED medical and nursing staff. They should regularly update other staff members on the condition of the patient, especially if they note any changes in the patient’s condition or behavior that could be cause for concern.
Stabilization This is an issue for medical/surgical hospitals that board psychiatric patients in their EDs as well as for psychiatric facilities. EMTALA requires that the transferring hospital provide stabilizing care within its capabilities prior to transfer.27 Most EDs can do something to try to stabilize a behavioral patient beyond simply holding them. Thus, a boarding hospital could use telepsychiatric resources for an assessment or begin a medication regimen to try to stabilize the patient. This must be done in accordance with the psychiatric facility that will ultimately receive the patient to ensure that the expectations of both entities are synchronized. EDs need to be careful to avoid doing anything that might conflict with the receiving facility’s conception of medical clearance. Too often, medical/surgical hospitals believe that their only responsibility is to keep the patient safe.
Restraints A detailed discussion of the use of restraints in an ED is beyond the scope of this article. Staff members need to be aware of the rules regarding restraints to avoid liability or patient injury. Facilities are directed to the CMS Interpretive Guidelines for further information on this subject.28
E N FO R C E ME N T Both hospitals and physicians can be liable for penalties under the Act. If a hospital has fewer than 100 licensed beds, the penalty per violation will be not more than $25 000. However, for hospitals with 100 or more licensed beds, or for physicians, who violate the act, the penalty may be not more than $50 000.29 It must be remembered that these are civil penalties, which are normally not covered by insurance. Hospitals, but not physicians, can be liable for civil damages to the injured patient if the injury was caused by the violation of the statute.30 In general, courts have upheld caps on damages in state law medical malpractice actions in states that have such caps.31 CMS also may exclude a physician from further participation in Medicare and Medicaid as punishment for a violation of certain aspects of the statute.32 This can be a financial death sentence for many physicians.
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CONCLUSION
13. 42 USC §1395dd(e)(3).
EMTALA is fully applicable to psychiatric facilities if they are licensed as, or function within, a hospital that participates in the Medicare program. Behavioral patients can be vulnerable and may certainly be difficult to manage safely and effectively. It is important that facilities understand the requirements of EMTALA in caring for behavioral patients in order to avoid layering this potential liability over the potential liabilities inherent in caring for behavioral patients. It is only through the careful application of due diligence that liability can be minimized and patient safety maximized.
14. 42 CFR §489.24(d)(2); see, eg, Morgan v. North Mississippi Medical Center, Inc., Civil No. 05–0499 (SD Ala. December 2, 2005).
RE FE REN C ES 1. The number of inpatient psychiatric beds decreased by 32.5% between 1995 and 2012. The number went from 160 645 to 108 317. American Hospital Association, Annual Survey of Hospitals, 1995–2012. 2. Szabo L. Psychiatric beds disappear despite growing demand. USA Today. May 12, 2014. In 1995, there were 7.9 million seriously mentally ill adults who needed inpatient care; in 2012, there were 9.6 million people who required such care. 3. Lutz A. Life is hard for the 1.3 million mental patients behind bars in the US. Business Insider, May 23, 2012. There are reportedly 1.25 million people in prison with a diagnosable psychiatric condition, as opposed to 40 000 in inpatient facilities. 4. 42 USC §1395dd. 5. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. Available at http://www.cms.gov/Regulations-and-Guidance /Guidance/Manuals/Downloads/som107ap_v_emerg .pdf. 6. 42 CFR §489.24(b). According to the CMS regulations, “participating hospital means (1) a hospital or (2) a critical access hospital as defined in section 1861(mm)(1) of the [Social Security] Act that has entered into a Medicare provider agreement under section 1866 of the Act.” 7. 42 CFR §489.24(f ); see also, St. Anthony Hospital v. DHHS, 309 F3d 680 (10th Cir 2002).
9. 42 CFR §489.24(d)(4)(iv). 10. 42 CFR §489.24(a)(i).
17. See, eg, http://www.medlaw.com/healthlaw/EMTALA /signs/index.shtml. 18. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. 19. 42 USC §1395dd(b)(3). 20. 42 CFR §489.20(m); US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. 21. 42 CFR §489.24(e). 22. See, eg, Burrows v. Redbud Community Hospital,—F Supp—, No. C96–4345 SI (ND Cal. January 13, 1998). 23. For an excellent reference on design features for a behavioral unit, please see Hunt JM, Sine DM. Design Guide for the Built Environment of Behavioral Health Facilities. National Association of Psychiatric Health Systems. Available at https://www.naphs.org /resources/home.aspx?product-tab=1. 24. The behavioral health community prefers the term observers over the term sitters, although the writer’s experience has been that EDs normally use the term sitters. For the purposes of this article, the term sitters will be used for both types of people. 25. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual. Appendix A, Survey protocol, regulations and interpretive guidelines for hospitals. Available at http://www.cms .gov/Regulations-and-Guidance/Guidance/Manuals /Downloads/som107ap_a_hospitals.pdf.
27. 42 CFR §489.24(e)(2)(i).
11. See, eg, Southard v. United Regional Health System, No. 7:06-CV-011-R (ND Tex. August 14, 2007).
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16. 42 CFR §489.24(b).
26. Hunt JM, Sine DM. Design guide for the built environment of behavioral health facilities. Washington, DC: National Association of Psychiatric Health Systems; May 31, 2011.
8. 42 CFR §489.24(b).
12. 42 CFR §489.24(d)(3).
15. See, eg, Thomas v. Christ Hospital and Medical Center, 328 F3d 890 (7th Cir 2003).
28. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix A, Survey protocol, regulations and interpretive guidelines for
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hospitals §§482.13(e) and 482.13(f ). Available at http://www.cms.gov/Regulations-and-Guidance /Guidance/Manuals/Downloads/som107ap_a _hospitals.pdf. 29. 42 USC §1395dd(d)(1). 30. 42 USC §1395dd(d)(2). 31. See Barris v. County of Los Angeles, 20 Cal. 4th 101, 83 Cal. Rptr. 2d 145, 972 P2d 966 (Cal. 1999); Power v. Arlington Hospital Association, 42 F3d 851 (4th Cir 1994). 32. 42 USC §1395dd(d)(1)(B).
A B OUT TH E AU TH OR John C. West, JD, MHA, DFASHRM, CPHRM, is currently employed as the Principal of West Consulting Services,
an independent risk management and patient safety consulting firm. He holds a law degree from Chase College of Law, a master’s degree in Health Services Administration from Xavier University, and a bachelor’s degree (Biology) from the University of Cincinnati. He holds the designation of distinguished fellow of the American Society for Healthcare Risk Management (ASHRM). He received the Presidential Citation Award (2011) and the Distinguished Service Award from ASHRM (2001), which is its highest honor. He has also been a certified professional in healthcare risk management since 2006. Mr. West has broad experience in loss prevention, including professional and general liability, occupational safety and health, and environmental impairment. He was certified in industrial hygiene by the American Board of Industrial Hygiene in 1983. Mr. West has been the author of the “Case law update” column, which appears quarterly in the Journal of Healthcare Risk Management, since 1994. He is a regular speaker at national and regional risk management meetings and has published numerous articles on risk management.
EMTALA obligations for psychiatric patients By John C. West, JD, MHA, DFASHRM, CPHRM
The Emergency Medical Treatment and Labor Act (EMTALA) was passed in 1986 and governs the obligations of licensed hospitals that participate in the Medicare program with respect to patients with emergency medical conditions. Psychiatric units and facilities often believe that it does not apply to them, or they are cavalier in their efforts to comply with it. If the entity is a licensed hospital, or operates within a licensed hospital, that participates in Medicare, the Act is fully applicable to them. Such entities disregard EMTALA at their peril. I N TR O D U C TI O N The boarding of patients with behavioral issues in medical/surgical hospital emergency departments (EDs) is common in the United States. This is generally due to 2 factors: the decrease in the number of inpatient beds for behavioral patients1 and an increase in the number of patients who need intensive psychiatric care in an inpatient setting.2 States have cut 4500 inpatient psychiatric beds, or 10% of the total supply.2 Given the lack of inpatient care, there are three general alternatives for patients with intensive psychiatric issues: EDs, prison,3 or the community. This sorry state of affairs has led to long waits in the ED, often measured in days, rather than hours. Although the scale of the problem may never be known, it is commonly believed that psychiatric units and facilities are increasingly selective regarding the patients they will accept for admission. Facilities will often refuse to accept forensic patients (those who have committed a crime) or sexual predators, but may also refuse to accept patients without a payer source. This may have implications under the Emergency Medical Treatment and Labor Act (EMTALA).4 However, this is true only for hospitals that have signed a Medicare participation agreement.5 An entity is not subject to EMTALA if it does not participate in the Medicare program or is not licensed as a hospital.6 While this article is not meant to be an exhaustive treatise on the law of EMTALA, it will discuss the issues surrounding the care and treatment of psychiatric patients by hospitals that have signed an agreement to participate in the Medicare program. This is an issue that many psychiatric facilities and units appear to be overlooking. There appears to be a widespread belief in behavioral health facilities that EMTALA does not apply to them because they do not have an ED. Such facilities, if they are participating hospitals, may be acting at their peril.
© 2014 American Society for Healthcare Risk Management of the American Hospital Association Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21153 AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 34, NUMBER 2
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AP PL I CABILITY OF EMTALA TO P SY CHIATRIC FAC ILITIES General requirements The basic rule behind EMTALA is that, if a person comes to an ED and seeks care for what may be an emergency medical condition (EMC) and, if an emergency medical condition is detected, the person is entitled to stabilizing care within the capabilities of the facility, or a transfer to a facility that can provide stabilizing care. Additionally, if a participating hospital offers specialized services and has the capacity to treat a patient, that facility is required to accept a patient needing those services in transfer, and may be liable for “reverse dumping” if it fails to accept the transfer.7 These are terms of art and have specific meaning in the law.
(3) During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.8 Most psychiatric facilities have an intake area that may meet the requirements of either (2) or (3) above, since they are areas where patients with emergency medical conditions can be evaluated on an unscheduled basis. Thus, they usually have a DED, and that requires them to comply with EMTALA if they are hospitals or in hospitals that participate in the Medicare program.
As noted above, EMTALA requires that the person have an emergency medical condition in order to trigger the protections of the act. The definition of emergency medical condition includes:
S P E C I FI C E MTA LA R E Q U I R E M ENT S F O R P S Y C H I ATR I C FA C I LI TI E S / U N I T S
(1) A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in—
If a patient comes to a DED seeking care for what may be an emergency medical condition, or on whose behalf such care is sought, the patient must be screened to determine whether an EMC exists. This is an absolute obligation under EMTALA. The duty to stabilize (discussed below) is a conditional obligation: It arises when the facility detects an EMC. If the facility does not know the patient is suffering from an EMC, there is no duty to stabilize the patient’s condition.
(i) Placing the health of the individual in serious jeopardy; (ii) Serious impairment to bodily functions; or (iii) Serious dysfunction of any bodily organ or part.8 It is clear that the statute intends that psychiatric and substance abuse disorders are covered as emergency medical conditions if the absence of treatment would place the patient’s health in jeopardy (eg, by committing suicide).
Dedicated emergency department (DED) It is true that EMTALA applies only to hospitals that have EDs,8 but the Centers for Medicare and Medicaid Services (CMS) has enlarged what it means to have an ED. CMS has implemented regulations that state that if a hospital has a “dedicated emergency department,” then it has an emergency department for the purposes of EMTALA. In order to be classified as a DED, the facility must have an area that meets one of the following requirements: (1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; (2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
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Emergency medical screening
The rule of thumb is that the screening should not be discouraged, delayed, or denied based on the patient’s ability to pay.9 It is, theoretically, acceptable to ask about insurance before the screening is completed as long as it does not delay or discourage the patient from having the screening, but there is a fine line here between following the statute and violating it. It is best to avoid talking about payment until the screening has been completed. The screening must be provided within the capability of the hospital’s DED, including ancillary services routinely available to the DED, to determine whether or not an EMC exists.10 Courts have generally required that the screening be “appropriate,” by which they mean that it cannot be different from the screening afforded to other, similarly situated, patients. EMTALA is not a federal medical malpractice statute: It does not require that the screening be non-negligent (state malpractice law will cover it if it is negligent). It can generally be proved that the patient’s screening was not disparate by the production of protocols, policies, or assessment forms. If the facility cannot produce some form of documentation regarding what it considers to be an appropriate screening, courts have allowed patients access to the medical records of other patients (with individually identifiable information redacted) to prove that the screenings provided to other patients were different from theirs.11
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It is sometimes the case that patients will be brought by family or law enforcement to a psychiatric facility for evaluation, and will not be there of their own free will. These patients may refuse to be screened. This is a difficult issue. The general rule is that competent persons have the right to refuse examination or treatment, but persons suspected of having a psychiatric condition are often not competent to refuse care. If the patient refuses the screening, and it appears that he or she is competent to do so, and it does not appear that he or she poses a risk of injury to self or others, it may be possible to allow it. However, the facility needs to document the proposed examination and treatment in the patient’s medical record and must seek to obtain written documentation of the patient’s informed refusal of the screening. In order to obtain the patient’s informed refusal, providers must discuss with the patient the risks of forgoing care and the benefits of obtaining care.12
Stabilization Stabilization should not be confused with curing. It may not be possible to “cure” a psychiatric condition, but it may be possible to stabilize it so that no material deterioration of the patient’s condition is likely to occur in the foreseeable future. In order to stabilize a patient for transfer, the facility must “provide such medical 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 [the] facility.”13 If the patient is admitted, the facility must do so in good faith with the intention of stabilizing the patient’s condition.14 It is rarely the case that a patient with an emergency psychiatric condition can be discharged. If he or she is discharged, it should only be in situations in which it is felt that the patient will not pose a threat to self or others and can safely receive care in an outpatient setting. It may also be the case that a patient will be a threat to self if he or she is unable to function safely outside a safe environment.15 Although it is a Medicare statute, EMTALA covers all patients, not just Medicare beneficiaries, including those who are unable to pay. If a facility performs an appropriate screening and detects an EMC, the facility must either transfer the patient (if it does not have the capacity to treat the patient) or admit the patient (if it does have the capacity to treat the patient). Capacity includes the facility’s licensed or staffed-to-operate beds but may also include provisions for operating above capacity. According to the regulations, “Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits.”16
Signage A participating hospital needs to post a sign or signs advising patients of their rights under EMTALA in all DOI: 10.1002/jhrm
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locations where they will be noticed by patients coming into the unit. As a general rule, no member of the public should be able to access the unit without passing an EMTALA sign. In common areas, the sign should be legible at 20 feet by a person with normal eyesight. In smaller areas, such as intake cubicles or rooms, the signs may be smaller. There is currently no required verbiage for the sign, but language for the sign has been suggested.17
Transfers out If a psychiatric facility transfers a patient to another facility, it should occur because the transferring facility does not have the capacity to care for the patient. This is often not simply a question of available beds or staff. It is not true that all psychiatric units should be equipped to care for all psychiatric patients. While most psychiatric units may be equipped to manage suicidal patients, they may not be equipped to handle forensic patients or sexual predators. It is important to develop a formal scope of services that specifically describes the types of patients for whom the psychiatric unit can provide care. This should be based on a realistic appraisal of the training and experience of the staff, the numbers and types of staff members available, and the physical configuration of the unit. If a question arises regarding the facility’s “dumping” of a patient, the facility should be able to point to its scope of services to show that it did not have the capacity to care for the patient. The hospital that has been asked to accept the patient in transfer must have the capacity to accept the patient and must accept the transfer. If the transferring facility feels that the transfer was wrongly rejected, it is required to report the same within 72 hours.18 Patients have the right to refuse to consent to a transfer. If this happens, the facility must discuss the risks of remaining and the benefits of being transferred to another facility.19 However, if the patient has been involuntarily committed, he or she will not have the right to refuse a transfer. It is only in the case of a transfer for a voluntary admission that a patient has the right to refuse. Under no circumstances should a participating hospital transfer a patient to another facility based solely on the patient’s ability to pay for care if the transferring facility has the capacity to care for the patient.
Transfers in As noted earlier, there is a very real scarcity of psychiatric inpatient beds relative to the demand for them. This can make it very difficult for medical/surgical hospitals without a psychiatric unit to find placement for a psychiatric patient in its ED. Since a behavioral patient in an ordinary ED is not receiving care in a safe environment, it is critical to transfer the patient to an appropriate level of care as quickly as possible.
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It is critical that the receiving facility base its decision to accept or deny the transfer from another facility on its capacity to care for the patient. This is, again, where a formal scope of services can be enormously beneficial. If the facility has made an objective assessment of its capabilities and determined that it cannot safely care for a particular category of patient, it is within its rights to deny the transfer. If a facility believes that it has wrongly received a patient (“been dumped on”), it is required to report the incident within 72 hours.20 Under no circumstance should the personnel who are responsible for accepting or denying a transfer ask about the patient’s payer status. This decision should be based solely on the facility’s capacity to care for the patient in order to preclude an allegation of reverse dumping. A participating hospital will be in violation of EMTALA if it refuses the transfer of a patient that it had the capacity to treat. It will be particularly egregious if this decision was made on the basis of the patient’s payer status.
Appropriate equipment Transfers need to be accomplished using qualified personnel and appropriate equipment.21 For patients with emergency medical (as opposed to psychiatric) conditions, this usually means that they need to be sent by ambulance. An appropriate transfer of a behavioral patient may be accomplished by ambulance, but more often it is accomplished by law enforcement personnel. Liability may attach for failure to use appropriate equipment and staff to effect the transfer.22 It is virtually never appropriate to transfer a patient with an unstabilized psychiatric condition by personal vehicle, despite the remonstrations of family members.
C O N S I D E R ATI O N S FO R ME DI C AL / S U R GI C A L H O S P I TA L E D S P R I O R T O TR A N S FE R Since medical/surgical hospitals are, through no desire on their part to engage in this line of business, becoming de facto behavioral health units, there are a number of things that they should consider in keeping patients safe for the duration of their stay in the ED. It is not always clear when EDs should implement safety precautions for behavioral patients (eg, must it wait until the screening has been completed?). This writer is of the opinion that precautions should be implemented as soon as the staff members have a reasonable suspicion that the patient may be a danger to self or others. It would certainly be preferable to defend a claim for false imprisonment rather than wrongful death. There are both structural and staffing solutions to many of these safety issues.
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Removal of contraband As soon as it is felt that the patient may be a danger to self or others, the patient should be searched for sharps and drugs, and shoelaces and belts should be removed. Ideally, the patient should be placed in a gown, although some facilities allow them to wear scrubs. It must be remembered that patients may be able to hang themselves using their pants. The search and removal of clothing and personal items should be done as soon as possible after a determination of a threat to self is made to avoid allowing the patient to secrete hazardous materials somewhere in the room or above the ceiling. Whenever a patient needs to use the bathroom, the bathroom should first be checked for contraband (razors, mouthwash, etc).
than would be possible in a non-safe environment. Some ideas for making a room safe would be to include as many of the following features as possible: • Furniture should be heavy or immovable (to prevent barricading the door). • Door can be secured to prevent unauthorized egress. • No projections that could support the weight of a human body • Sharps container removable or can be secured; all sharps removed from room. • Nothing present that could be used as a weapon.
Behavioral observation units
• Ceiling is solid or tiles are clipped in place.
If a facility has a high volume of behavioral patients that it is boarding at all times, it may be practical to move them out of the ED altogether. A bed in the ED is a valuable piece of real estate, and it should turn over rapidly in order to keep the ED functioning properly. It is possible to set up an observation unit where behavioral patients can be housed pending a transfer. It is important to designate this as an observation unit. If it is designated an inpatient unit and the patients are “admitted” to it, the facility will find itself in the business of caring for behavioral patients and will be required to accept transfers of behavioral patients from other facilities. If it is technically a part of the ED and patients have not been admitted, it is not a behavioral health unit.
• Room is configured so that staff can monitor patient.
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If the unit is set up as a safe environment, the unit can have lower staffing levels than would be possible using sitters in the ED. It is typically the case that sitters cannot effectively attend to more than 2 or 3 behavioral patients in the ED. In a behavioral observation unit, the facility may be able to operate effectively with a much higher staff-to-patient ratio. It also allows the facility to hire nurses with a background in behavioral health or to train current nurses more extensively in behavioral health. Although there is certainly an expense involved in setting up a unit to be a safe unit, there may be savings in the long term if the volume of behavioral patients remains high. If the observation unit is secured or has other features that would impede egress in an emergency (eg, locked doors that open only with a key or card unless the fire alarm is activated; secured fire extinguishers and alarm boxes, etc), the facility should obtain the approval of the local fire marshal having jurisdiction before occupying the unit.
Safe rooms An alternative to setting up a behavioral observation unit is to establish safe rooms in the ED in which to provide care for behavioral patients. If safe rooms are developed, it may be possible to allow sitters to watch more patients DOI: 10.1002/jhrm
• Hinges on door are continuous and sloped downward at the top. • Inside handle on door is sloped downward. • No cabinets, or if present, can be secured. • No cords or lines are present, or they can be secured prior to use. • No grates or grilles or grates/grilles have small enough openings that nothing can be threaded through them. • Light fixtures are recessed with unbreakable cover and tamper-proof screws. • Panic button is present (may be secured) or staff carry personal alarm devices while in room. • No smoke detector or smoke detector is recessed. • No wastebasket or wastebasket that does not have plastic liner. • No sprinkler head or sprinkler head is recessed or tamper resistant. • No vision panel in door, or if present, is impact resistant. • No mirrors or mirrors made of unbreakable substance. Again, as with the behavioral observation unit, many of these features in a safe room should be approved by the fire marshal. It is certainly possible to render an ordinary examination room safe when a safe room is required. If the facility chooses this route, it should try to implement as many of the preceding safety features as possible into the convertible safe room. Safe rooms can reduce the number of sitters necessary to watch behavioral patients, but they do not obviate the
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need for sitters. Sitters should still provide an appropriate level of supervision for behavioral patients.
Sitters/Observers24 It is preferable to have someone, such as a sitter, whose job it is to watch the patient to ensure that he or she does not try to leave or to injure himself or herself. Facilities sometimes place behavioral patients where they can be directly observed from the nurses’ station, but as the adage goes, when something is everybody’s job, it is nobody’s job. It is best to assign this responsibility to someone. Sitters may be required in any environment, although the higher the level of safety, the lower the number of sitters for a given number of patients. Sitters can be nurses, certified nursing assistants (CNAs), or security officers. Although security officers are used in many EDs, it is preferable to use people with some clinical background to function as sitters. It is probably not appropriate to use volunteers or nonclinical staff (other than security officers) to function as sitters. If security officers are used as sitters, they need to understand that CMS forbids the use of tasers or other nonlethal devices as a method to control patient behavior.25 The function of the sitter is, simply, to watch the patient. The number of patients that one sitter can watch may be variable. If the patients are asleep at night and the patients are in adjacent rooms, 1 sitter may be able to watch 3 patients. During the day, and, again, if the rooms are adjacent, 1 sitter may be able to watch 2 patients, unless the sitter is required to keep the patient within arm’s length at all times. If all of the patients are in safe rooms, the number of patients that a sitter could watch could be higher. Whoever is used as a sitter, sitters need to be carefully trained on how to perform their function. They must understand that the patient must always be within the zone of observation and supervision (eg, 1:1, intensive observation, continuous observation, etc). This includes when the patient is in the bathroom. The bathroom should also be safe (no sharps, plastic trash can liners, or hazardous liquids) and have nothing that would allow the weight of a human body to be suspended from it (eg, shower heads, shower rods, faucets, toilet hardware, and grab bars). Many of these items can be obtained commercially,26 including grab bars around which nothing can be tied. It may be acceptable to allow the sitter to stand or sit outside the bathroom door with the door ajar. If the patient is allowed to smoke, the sitter should accompany him or her outside and have control of smoking paraphernalia (cigarettes, lighters, and matches) at all times. The patient should never be left to smoke unattended outside the ED, even if it is in an enclosed courtyard. If the sitter is engaged in an activity involving a patient that takes him or her away from other patients he or she is supposed to be watching, someone should be required to fill in for the sitter. Sitters also need to be aware that they need to devote their attention to the patient. Sitters should not read magazines 10
or newspapers, or check their e-mail on their phones. Sitters should not be asked to do other work while performing the duties of a sitter. One of the primary obligations of a sitter is to be the eyes and ears of the ED medical and nursing staff. They should regularly update other staff members on the condition of the patient, especially if they note any changes in the patient’s condition or behavior that could be cause for concern.
Stabilization This is an issue for medical/surgical hospitals that board psychiatric patients in their EDs as well as for psychiatric facilities. EMTALA requires that the transferring hospital provide stabilizing care within its capabilities prior to transfer.27 Most EDs can do something to try to stabilize a behavioral patient beyond simply holding them. Thus, a boarding hospital could use telepsychiatric resources for an assessment or begin a medication regimen to try to stabilize the patient. This must be done in accordance with the psychiatric facility that will ultimately receive the patient to ensure that the expectations of both entities are synchronized. EDs need to be careful to avoid doing anything that might conflict with the receiving facility’s conception of medical clearance. Too often, medical/surgical hospitals believe that their only responsibility is to keep the patient safe.
Restraints A detailed discussion of the use of restraints in an ED is beyond the scope of this article. Staff members need to be aware of the rules regarding restraints to avoid liability or patient injury. Facilities are directed to the CMS Interpretive Guidelines for further information on this subject.28
E N FO R C E ME N T Both hospitals and physicians can be liable for penalties under the Act. If a hospital has fewer than 100 licensed beds, the penalty per violation will be not more than $25 000. However, for hospitals with 100 or more licensed beds, or for physicians, who violate the act, the penalty may be not more than $50 000.29 It must be remembered that these are civil penalties, which are normally not covered by insurance. Hospitals, but not physicians, can be liable for civil damages to the injured patient if the injury was caused by the violation of the statute.30 In general, courts have upheld caps on damages in state law medical malpractice actions in states that have such caps.31 CMS also may exclude a physician from further participation in Medicare and Medicaid as punishment for a violation of certain aspects of the statute.32 This can be a financial death sentence for many physicians.
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CONCLUSION
13. 42 USC §1395dd(e)(3).
EMTALA is fully applicable to psychiatric facilities if they are licensed as, or function within, a hospital that participates in the Medicare program. Behavioral patients can be vulnerable and may certainly be difficult to manage safely and effectively. It is important that facilities understand the requirements of EMTALA in caring for behavioral patients in order to avoid layering this potential liability over the potential liabilities inherent in caring for behavioral patients. It is only through the careful application of due diligence that liability can be minimized and patient safety maximized.
14. 42 CFR §489.24(d)(2); see, eg, Morgan v. North Mississippi Medical Center, Inc., Civil No. 05–0499 (SD Ala. December 2, 2005).
RE FE REN C ES 1. The number of inpatient psychiatric beds decreased by 32.5% between 1995 and 2012. The number went from 160 645 to 108 317. American Hospital Association, Annual Survey of Hospitals, 1995–2012. 2. Szabo L. Psychiatric beds disappear despite growing demand. USA Today. May 12, 2014. In 1995, there were 7.9 million seriously mentally ill adults who needed inpatient care; in 2012, there were 9.6 million people who required such care. 3. Lutz A. Life is hard for the 1.3 million mental patients behind bars in the US. Business Insider, May 23, 2012. There are reportedly 1.25 million people in prison with a diagnosable psychiatric condition, as opposed to 40 000 in inpatient facilities. 4. 42 USC §1395dd. 5. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. Available at http://www.cms.gov/Regulations-and-Guidance /Guidance/Manuals/Downloads/som107ap_v_emerg .pdf. 6. 42 CFR §489.24(b). According to the CMS regulations, “participating hospital means (1) a hospital or (2) a critical access hospital as defined in section 1861(mm)(1) of the [Social Security] Act that has entered into a Medicare provider agreement under section 1866 of the Act.” 7. 42 CFR §489.24(f ); see also, St. Anthony Hospital v. DHHS, 309 F3d 680 (10th Cir 2002).
9. 42 CFR §489.24(d)(4)(iv). 10. 42 CFR §489.24(a)(i).
17. See, eg, http://www.medlaw.com/healthlaw/EMTALA /signs/index.shtml. 18. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. 19. 42 USC §1395dd(b)(3). 20. 42 CFR §489.20(m); US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix V, Interpretive Guidelines, Responsibilities of Medicare participating hospitals in emergency cases. 21. 42 CFR §489.24(e). 22. See, eg, Burrows v. Redbud Community Hospital,—F Supp—, No. C96–4345 SI (ND Cal. January 13, 1998). 23. For an excellent reference on design features for a behavioral unit, please see Hunt JM, Sine DM. Design Guide for the Built Environment of Behavioral Health Facilities. National Association of Psychiatric Health Systems. Available at https://www.naphs.org /resources/home.aspx?product-tab=1. 24. The behavioral health community prefers the term observers over the term sitters, although the writer’s experience has been that EDs normally use the term sitters. For the purposes of this article, the term sitters will be used for both types of people. 25. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual. Appendix A, Survey protocol, regulations and interpretive guidelines for hospitals. Available at http://www.cms .gov/Regulations-and-Guidance/Guidance/Manuals /Downloads/som107ap_a_hospitals.pdf.
27. 42 CFR §489.24(e)(2)(i).
11. See, eg, Southard v. United Regional Health System, No. 7:06-CV-011-R (ND Tex. August 14, 2007).
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16. 42 CFR §489.24(b).
26. Hunt JM, Sine DM. Design guide for the built environment of behavioral health facilities. Washington, DC: National Association of Psychiatric Health Systems; May 31, 2011.
8. 42 CFR §489.24(b).
12. 42 CFR §489.24(d)(3).
15. See, eg, Thomas v. Christ Hospital and Medical Center, 328 F3d 890 (7th Cir 2003).
28. US DHHS, Centers for Medicare and Medicaid Services. State Operations Manual, Appendix A, Survey protocol, regulations and interpretive guidelines for
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hospitals §§482.13(e) and 482.13(f ). Available at http://www.cms.gov/Regulations-and-Guidance /Guidance/Manuals/Downloads/som107ap_a _hospitals.pdf. 29. 42 USC §1395dd(d)(1). 30. 42 USC §1395dd(d)(2). 31. See Barris v. County of Los Angeles, 20 Cal. 4th 101, 83 Cal. Rptr. 2d 145, 972 P2d 966 (Cal. 1999); Power v. Arlington Hospital Association, 42 F3d 851 (4th Cir 1994). 32. 42 USC §1395dd(d)(1)(B).
A B OUT TH E AU TH OR John C. West, JD, MHA, DFASHRM, CPHRM, is currently employed as the Principal of West Consulting Services,
an independent risk management and patient safety consulting firm. He holds a law degree from Chase College of Law, a master’s degree in Health Services Administration from Xavier University, and a bachelor’s degree (Biology) from the University of Cincinnati. He holds the designation of distinguished fellow of the American Society for Healthcare Risk Management (ASHRM). He received the Presidential Citation Award (2011) and the Distinguished Service Award from ASHRM (2001), which is its highest honor. He has also been a certified professional in healthcare risk management since 2006. Mr. West has broad experience in loss prevention, including professional and general liability, occupational safety and health, and environmental impairment. He was certified in industrial hygiene by the American Board of Industrial Hygiene in 1983. Mr. West has been the author of the “Case law update” column, which appears quarterly in the Journal of Healthcare Risk Management, since 1994. He is a regular speaker at national and regional risk management meetings and has published numerous articles on risk management.
