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.

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 Medicare Conditions of Participation: Patient’s Rights Restraints: Acute Medical Care Restraints/Seclusion: Behavioral Management Settings 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. For psychiatric condition, question of how long they need to be safe and protected is not answered For pregnant woman in actual labor, stabilized = delivering the child and the placenta

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: current and previous mental illness and treatment; dangerousness to self and to others; ability to survive safely without inpatient commitment; and 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 face-to-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.