In Depth

Two recently released CMS Quality, Safety and Oversight Group memoranda (each a Memo) provide incremental additional guidance to psychiatric hospital providers on compliance with the Emergency Medical Treatment and Labor Act (EMTALA). The application of EMTALA to psychiatric hospitals has long presented particular concerns for providers, and despite in-depth consideration over time, further guidance has been slow to arrive. The Memos amend the subregulatory guidance in Chapter 5 and Appendix V in the CMS State Operations Manual (SOM) in one instance and provide further “FAQ” type guidance to psychiatric hospitals in the other.

June 4 Memo

The June 4, 2019, Memo, QSO-19-14-Hospitals, CAHs (the June 4 Memo), provides guidance to enrolled hospitals and critical access hospitals regarding the timing of the EMTALA survey process set forth in Chapter 5 of the SOM, and implements amendments to standardize the surveyor response times in EMTALA cases classified as “Immediate Jeopardy” (i.e., those that present an immediate threat to health and safety) in comparison to other types of Immediate Jeopardy survey activity. As a result, all EMTALA-related Immediate Jeopardy survey activity must be initiated within two business days of the CMS Regional Office authorization of an investigation. The June 4 Memo also provides new language within Chapter 5 clarifying that EMTALA allegations may be classified as “Non-IJ High,” in which case an investigation must be initiated within 45 business days of CMS Regional Office authorization.

Of key interest to psychiatric hospitals, the June 4 Memo also amends Appendix V of the SOM to specifically include psychiatric hospital intake or assessment units among the hospital departments or units where patients are routinely evaluated and treated for emergency medical conditions and that may meet the requirements to be considered “Dedicated Emergency Departments” under EMTALA. This distinction is helpful to the extent it clarifies that not every psychiatric “unit” falls within this same description. “Suicidal ideation” is also now articulated among the Appendix V list of “conditions…which may be associated with emergency medical conditions.” The June 4 Memo also includes amendments to the case selection methodology used by surveyors when evaluating whether a department or unit is a Dedicated Emergency Department to include a revisit verification process to ensure the hospital in the midst of the survey cycle is complying with its plan of correction and maintaining its compliance with EMTALA. The Appendix V revisions set forth in the June 4 Memo also specifically state that any “patterns of discrimination” must be referred by the CMS Regional Office to the Office of Civil Rights (OCR) for evaluation and potential investigation.

July 2 Memo and FAQs

Providing more direct guidance to psychiatric hospitals, the July 2, 2019, Memo, QSO-19-15-EMTALA (the July 2 Memo), accompanies an “FAQ” document specifically addressing seven direct questions pertaining to EMTALA surveys in psychiatric hospitals. Highlights from the July 2 Memo and accompanying FAQs include:

• Regarding so-called “medical clearance” evaluations in psychiatric hospitals, CMS notes that “if there is concern regarding a psych emergency that may have clinical components, a hospital could satisfy its obligation to provide an appropriate medical screening exam if a professional provides a screening exam designed to identify, to the best of the professional’s ability, any emergency medical conditions, and thereafter transfers the patient to a hospital with specialized services and equipment for further evaluation and treatment.” (FAQ #5)

• A psychiatric hospital must use its resources to perform a medical screening examination and provide medical care within its capabilities prior to transferring an individual to another facility for further evaluation and treatment. Depending on the capabilities of the psychiatric hospital, this may involve, by way of example, “performing ongoing assessments with repeat vital signs and ensuring the patient is in a safe environment.” (FAQ #3)

• However, and key to psychiatric hospitals that have wrestled with differing surveyor interpretations of what is required, CMS specifies that “[t]here is no expectation that a psych hospital with basic clinical services would be expected to provide the same level of comprehensive medical assessments or treatment as an acute care hospital.” (FAQ #3)

• Notwithstanding the preceding point, if a psychiatric hospital has the staff and facilities to stabilize an emergency medical condition, it is still expected to do so, and not to condition such care on the patient’ ability to pay. (FAQ #4)

• Surveyors may investigate concerns regarding whether staff performing medical screening examinations are practicing within their state scope of practice, and will evaluate state scope of practice information and hospital bylaws and rules and regulations to determine whether medical screening examinations are within the scope of a professional’s practice. (FAQ #1&2)

• Where a hospital has limited access to treating specialists, CMS reiterates that the hospital may not have the capabilities needed to care for the patient at that time. In the psychiatric hospital context, where there are typically few if any medical specialists on staff, this is an important confirmation of the components of capability. (FAQ #4)

• Hospitals are reminded to document in the medical record instances where there are available inpatient beds, but there are capability issues that explain why a patient who required stabilizing treatment was not admitted. (FAQ #4)

Action Items for Consideration

Based on the July 2 Memo and June 4 Memo, psychiatric hospitals should carefully consider next steps to ensure continued compliance and enhance the ability to successfully respond to surveyors in the context of a state agency/CMS or accreditation survey. For example:

• Ensure psychiatric hospital staff tasks with survey readiness understand the revisions to Chapter 5 and Appendix V of the SOM specific to EMTALA investigation timelines and the “Non-IJ” classification of allegations.

• Consider the new revisit validation of Dedicated Emergency Department compliance and potential for OCR reporting as part of survey readiness activities.

• Work with professionals who function as “Qualified Medical Personnel” (QMPs) for medical screening examinations to confirm that medical screening examinations are within their state scope of practice, and ensure that QMP information is clearly set forth in the hospital bylaws and regulations.

• Evaluate the capabilities of the hospital and identify components of a screening exam designed to identify, to the best of the professional’s ability, any emergency medical conditions prior to facilitating a transfer of the patient where that is determined to be necessary.

• Identify the hospital’s medical care capabilities and educate staff functioning in the intake/assessment department on the capabilities for provision of medical care prior to transfer.

• Educate QMPs on the need to clearly document why a patient is transferred for stabilizing treatment where the hospital at issue otherwise has bed capacity.

Recent Court Cases and Subregulatory Guidance

Recent US Supreme Court Cases (Kisor v. Wilkie and Azar v. Allina Health Services) have called into question the ability of a government agency, and specifically of CMS, to promulgate subregulatory guidance without the benefit of a full public notice and comment period, and to be granted “deference” when such guidance is evaluated by the courts. How these cases will impact CMS’s standard procedure for updating its sources of subregulatory guidance, like the SOM, remains to be seen. Though, some recent CMS subregulatory guidance has been issued in “draft” form with a “comment period” attached (see, e.g., May 3, 2019 QSO-19-13-Hospital setting forth draft guidance regarding hospital co-location matters), while other guidance, like the Chapter 5 and Appendix V revisions included in the June 4 Memo, have not.