Navigating the Mental Health Maze
April 15, 2010
Erin E. Jochum, Esq.
Smith Moore Leatherwood LLP
Raleigh, North Carolina
T: (919) 755-8793
erin.jochum@smithmoorelaw.com
To ask a question during the presentation, click the Q&A menu at the top of this
window, type your question in the Q&A text box, and then click “Ask.”
After you click Ask, the button name will change to “Edit.” Questions will be
queued and most will be answered at the end of the meeting as time allows.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Introduction
I.
Mental Health Patients in the Emergency Department
–
Why EDs have become the main “pathway” to mental health
services
–
EMTALA Obligations
–
Involuntary Commitment Patients
II.
Medicare Conditions of Participation: Patient’s Rights
–
Restraints: Acute Medical Care
–
Restraints/Seclusion: Behavioral Management Settings
III.
Confidentiality of Mental Health Information
–
Confidentiality vs. Privilege
–
Release of Records
Mental Health Patients in the ED
Mental Health Patients in the ED
•
Widespread reform on the State level has closed mental health
institutions throughout the country.
•
Since 2001 North Carolina has closed approximately 850 State
psychiatric hospital bed and funds have been reallocated to
“community-based” programs.
•
Local Management Entities are responsible for managing,
coordinating, facilitating and monitoring the provision of mental health
services, among other services, in the catchment area served.
•
LME responsibilities include offering consumers 24/7/365 access to
services, developing and overseeing providers, and handling consumer
complaints and grievances.
Mental Health Patients in the ED
• The majority of mental health patients are being
brought to emergency departments in order to
receive evaluation or treatment.
• Regardless of a hospital’s capability or capacity to
provide treatment to these patients, it is imperative
that the hospital adequately examines such patients,
as EMTALA is triggered.
What is EMTALA?
• EMTALA is the Emergency Medical Treatment and
Active Labor Act.
• Known as the “patient anti-dumping” law.
• Applies to any hospital with an ED that participates in
Medicare.
• Also applies to free-standing EDs that are operated
by a hospital under its license.
EMTALA Triggers
• EMTALA is triggered if a patient presents on the
campus of a hospital and requests an examination or
treatment for an emergency condition or if a
reasonable person would believe he or she may be
suffering from an emergency.
• Includes the request for an examination or treatment
by the mental health authority, sheriff’s office, or local
police department.
“You know why I’m here.”
“Laugh Parade” by Bunny Hoest and John Reiner
Parade Magazine, March 15, 1990
What does EMTALA require?
• EMTALA requires a participating hospital to provide
medical screening examinations within its capability
to all persons who present to the ED and request
service, regardless of that person’s ability to pay for
medical services, to determine if an emergency
medical condition exists.
• If the patient cannot be stabilized, the Hospital must
implement the “appropriate transfer.”
“If time really heals all wounds, I should be cured by now.”
“Laugh Parade” by Bunny Hoest and John Reiner
Parade Magazine, March 5, 2000
What is an EMC under EMTALA ?
• A medical condition manifesting itself by acute
symptoms of sufficient severity such that the
absence of immediate medical attention could
reasonably be expected to result in:
• Placing the health of individual in serious
jeopardy;
• Serious impairment to bodily functions; or
• Serious dysfunction of any organ or part.
• What does this mean for mental health patients?
If an EMC is present, what are the Hospital’s
obligations under EMTALA?
• If the patient has an EMC, obligations under EMTALA
continue and the hospital must:
• Treat the patient “within the medical facility’s
capabilities” to stabilize the patient’s identified
EMC; or
• If the patient cannot be stabilized at the hospital,
appropriately transfer the patient.
“The good news is you’re not a hypochondriac.”
“Laugh Parade” by Bunny Hoest and John Reiner
Parade Magazine, January 11, 1998
What is meant by, “within the
medical facility’s capability?”
• “…there is physical space, equipment, supplies, and
specialized services that the hospital provides.”
• Includes level of care hospital personnel are permitted to
provide under their professional license.
• Includes ancillary services routinely available to patients
in the ED.
• Includes capabilities of specialists and subspecialists on
call and available to provide treatment.
What is meant by capacity?
• The ability of the Hospital to accommodate the
patient’s needs, and includes such things as:
• Numbers and availability of qualified staff.
• Numbers and availability of beds and
equipment.
• Hospital’s past practices of accommodating
additional patients in excess of occupancy.
– If Hospital regularly expands capacity, it must
do so.
When is a patient stabilized?
• “When 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.”
• Essentially, if the patient is safe to be discharged
home without the expectation of short-term
deterioration, he or she is stabilized.
• For a psychiatric condition, stabilized means the
patient is protected and prevented from injuring
himself or others.
What is meant by transfer?
• The movement of an individual outside of
hospital facilities at the direction of any
person employed by or affiliated with the
hospital.
• Transfer includes discharge.
What is an appropriate transfer
under EMTALA?
•
A transfer in which the transferring hospital provides medical
treatment within its capability that minimizes risk to the patient’s
health and the transfer is to a receiving facility that:
•
Has available space and qualified personnel for treatment;
•
Has agreed to accept the transfer and provide appropriate
medical treatment;
•
The transferring hospital sends the medical records to the
receiving hospital; and
•
The transfer is effected through qualified personnel and
transportation equipment.
When MUST a Hospital Accept a
Patient Transfer?
• The receiving hospital has specialized
capabilities to treat the patient’s emergency
medical condition; and
• The receiving hospital has the capacity (as
defined by EMTALA) to treat the patient.
When does the EMTALA
obligation end?
•
EMTALA obligations end when:
•
The physician conducts a reasonable MSE and concludes
that no EMC exists; or
•
The physician stabilizes the patient with respect to all
identified EMCs; or
•
The hospital admits the patient in good faith (not to avoid
EMTALA duties); or
•
The hospital provides all treatment within its capabilities and
makes an appropriate transfer; or
•
The patient leaves the hospital against medical advice.
Does a hospital violate EMTALA if
a patient refuses treatment?
• No; the hospital must document in the record
the risks and benefits of examination and
treatment attempts made to encourage the
patient to stay.
• If emergency psychiatric condition, consider
involuntary commitment.
Involuntary Commitment Patients
•
Voluntary vs. involuntary commitment
•
In NC there are 2 processes by which a patient can be
involuntarily committed:
(1) standard process; and (2) emergency process.
•
Examination of a patient for potential IVC by a physician should
include, at a minimum, evaluation of the following:
(1) current and previous mental illness and treatment;
(2) dangerousness to self and to others;
(3) ability to survive safely without inpatient commitment; and
(4) capacity to make an informed decision regarding treatment.
What are a hospital’s obligations while an
IVC patient is awaiting transfer?
• This has become an increasingly popular question as
transfer wait times have increasingly longer.
• Who is responsible for supervision?
• Who is responsible for transport?
Medicare Conditions of Participation:
Patient’s Rights
CoP: Patient’s Rights
•
•
•
•
•
•
Notice of rights
Exercise of rights
Privacy and safety
Confidentiality of patient records
Restraint: acute medical or surgical care
Restraint or seclusion: behavioral
management settings
Restraints: Acute Medical Care
• “Restraint” may include either a drug or physical
restraint.
• Examples include arm bands for intravenous lines
and the restraint of a non-aggressive patient to
protect against the risk of falling.
• Not to be used for convenience or for lack of
adequate staffing.
• Patients have the right to be free from restraints in
any form that are not medically necessary or used by
staff as a means of discipline, convenience, or
retaliation.
Restraints: Behavioral Management
Settings
• “Seclusion” is the involuntary confinement of a
person alone in a room or an area where the person
is physically prevented from leaving; does not include
confinement in a locked unit or ward where the
patient is with others.
• Restraint and seclusion may only be used as an
emergency measure.
• Requires more careful assessment and monitoring to
ensure patient safety.
Restraints: Behavioral Management
Settings
• “See and evaluate” the need for restraint or seclusion
within one hour after initiation of intervention.
• Needs to be a face-to-face evaluation.
• No more than 4 hours for adults per written order;
can be renewed for a total of 24 hours; another faceto-face evaluation is necessary after 24 hours.
• Restraint and seclusion cannot be used
simultaneously unless patient is continually
monitored face-to-face by an assigned staff member
or by both audio and video equipment.
Confidentiality of Mental Health
Information
Confidentiality of Mental Health
Information
• Confidentiality as an incentive to obtain
treatment.
• State specific laws and regulations govern
the use, security, confidentiality, and release
of such information.
Confidentiality vs. Privilege
•
Communication between physician and patient is both:
•
Confidential- physician has duty not to disclose this
information to anyone absent patient’s consent, except to
other health care providers who need to know information in
order to treat patient.
•
Privileged- physician cannot be forced to disclose
substance of patient’s communication for use as evidence
in a legal proceeding unless privilege is waived.
Confidentiality vs. Privilege
•
Privilege is qualified:
•
•
•
•
Physician-patient relationship must have existed at time of
communication.
Information must have been necessary to diagnosis and
treatment.
Privileged communications can be disclosed under certain
circumstances (i.e. patient who poses a danger).
All privileged information is confidential, but not all confidential
information is privileged.
Release of Records
•
Patients Access
•
•
•
•
Personal access may be limited by physician if deemed injurious to
patient’s well-being.
In these circumstances, patient may request information be sent to another
physician of patient’s choice.
Provider can place reasonable restrictions of time and place of patient’s
review of records.
Disclosure
•
•
•
Usually patient or next of kin must consent in writing.
Should be signed, dated, identify what to be disclosed and for what
purpose, include date upon which consent will expire.
Incompetent patients cannot consent.
Release of Records
•
Unauthorized Disclosure
•
Mental Health, Developmental Disabilities, and Substance Abuse Act (NC)
• Unauthorized disclosure = fines
• Confidential information may be disclosed without patient consent
where:
• Patient admitted to/discharged from facility and physician
believes disclosure is in patient’s best interest (to next of kin).
• Filing a petition of IVC or adjudication of incompetency and
appointment of guardian.
• Information relevant to litigation, operations of provision of
services by facility (to attorney or employee of facility).
• Imminent danger to health/safety of patient or another, likelihood
that felony or violent misdemeanor will occur, or need for
emergency services for patient.
???QUESTIONS???
Navigating the Mental Health Maze
April 15, 2010
Erin E. Jochum, Esq.
Smith Moore Leatherwood LLP
Raleigh, North Carolina
T: (919) 755-8793
erin.jochum@smithmoorelaw.com
To ask a question during the presentation, click the Q&A menu at the top of this
window, type your question in the Q&A text box, and then click “Ask.”
After you click Ask, the button name will change to “Edit.” Questions will be
queued and most will be answered at the end of the meeting as time allows.
© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.