5150 s, EMTALA and the Budget

1. CMHDA Meeting � Sacramento, CA Friday, June 24, 2011 9:00 a.m. � 12:00 noon 5150�s, EMTALA and the Budget

2. The California Lanterman-Petris-Short (LPS) Act Signed into law by Governor Reagan in 1967 Among its many stated goals: To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons... To provide prompt evaluation and treatment of persons with serious mental disorders� To safeguard individual rights through judicial review�. To protect mentally disordered persons and developmentally disabled persons from criminal acts�

3. Involuntary �holds� � step one W&I Code 5150 - When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county,�, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

4. �as a result of a mental disorder�� �mental disorder� does not include �neurological disorders� such as dementia or Alzheimer�s Disease � it means a psychiatric illness that can be treated in a psychiatric facility (so where does a person with dementia AND dangerous behavior get placed?)

5. criteria �danger to self� usually means person is suicidal, but can also be result of mental condition that affects rational thinking (person believes they can fly or stop trains) �gravely disabled� can often = danger to self but isn�t intentional harm �danger to others�.� does not necessarily trigger 5150 laws (can often be the result of criminal plans or activities)

6. Who can initiate a hold? Peace officer Member of attending staff of 72 hour evaluation and treatment facility designated by the county Other professional person designated by the county

7. After a hold is �written� � �may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility� (since a person�s liberty is being taken away, there must be legal basis to do this � ok to transport to hospital for clearance or to crisis stabilization for mental health assessment if they agree to go, but a hold must be written if they refuse) Most �designated facilities� won�t take individual unless he/she has been �medically cleared� so often the destination of law enforcement is local hospital ED (that�s where family/friends often take person as well)

8. Admit and treat � Step Two � W&I 5151(after the 5150 �hold� step is complete) 5151. If the facility for 72-hour treatment and evaluation admits the person, it may detain him or her for evaluation and treatment for a period not to exceed 72 hours�.

9. IMPORTANT SECTION!!!! 5151 � paragraph 2 �Prior to admitting a person to the facility for 72-hour treatment and evaluation �the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention.�

10. Ending the �involuntary� process before admission�(5151 continued) 5151 � paragraph 3 �If in the judgment of the professional person in charge of the facility providing evaluation and treatment, or his or her designee, the person can be properly served without being detained, he or she shall be provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis.� There needs to be a way to �end� the process �in the field� as well as at the door of the designated facility

11. �ending� the hold -continued Most Counties have policies that address the issue of �ending� a hold prior to transporting to a designated facility when the client no longer meets 5150 criteria; terms include: Cancelling Ending Discontinuing Revoking Voiding Canceling Stopping Breaking Annulling Rescinding Interrupting Abandoning Withdrawing Retracting Repealing Invalidating Lifting

12. Note that the law says NOTHING about ending a hold prior to transport When the LPS Act was written, people believed that there would be no gap in time between the hold and arrival at the designated facility (therefore it wasn�t addressed) because: there would be an LPS facility in every county full of available beds adequately staffed 24/7 capable of admitting all ages and levels of dangerousness with fully staffed ICU, surgical suite, CCU and med/surg units

13. We need a way to officially stop the process when criteria are no longer met Things change with the passage of time (during the wait for medical clearance and then, finding a bed at a designated facility) It would be helpful to address this in statute and include immunity for the decision Also, does time �in limbo� while waiting for a bed subtract from the 72 hours? Or does the clock not start until admission onto the unit?

14. If person who can �place a hold� is not available, Health and Safety Code section 1799.111 permits a non-designated hospital to hold a person UP TO 24 hours while looking for a bed to transfer him/her to� (time being held at hospital is �counted towards� their 72 hours) Health & Safety Code 1799.111

15. What 5150 law says: Step 1: Assess, hold and transport Step 2: Assess and admit up to 72 hours (or initiate less restrictive means)

16. Reality check: EMTALA trumps CA law 5150 is a process � instead of hold, transport and admit (or not) It is often a multi-step process involving manydifferent people, lots of phone calls over a very long period of time, in a variety of different venues. And, if patient is taken to acute care hospital for medical clearance first, EMTALA law applies and process is further complicated!

17. EMTALA 5150 laws did not anticipate or mention EMTALA because it came two decades after the LPS Act (and final regs not adopted until 1994) Federal laws often do not worry too much about state laws that might be impacted � typically, both will apply unless there is a conflict, in which case Federal law wins. In some cases, the law itself will provide guidance on what to do if there is a conflict (e.g., the pre-emption analysis built into HIPAA); EMTALA is silent about conflicting state law

18. EMTALA Emergency Medical Treatment and Active Labor Act of 1986 (part of COBRA) Also known as �anti-patient dumping statute� Enacted to ensure access to emergency services regardless of ability to pay Strict rules that apply to hospitals with emergency departments do not take into account California 5150 laws

19. EMTALA: Why Do Hospitals Worry? Violations may result in Patient harm Medicare termination by the Centers for Medicare & Medicaid Services (CMS) Fines by the Office of Inspector General (OIG)�up to $25,000 per violation for hospitals with fewer than 100 beds, $50,000 for larger hospitals) Physician exclusion from Medicare/Medicaid for gross/repeated violations Physician fines�up to $50,000 per violation Malpractice suits against hospitals

20. The basic EMTALA �rules� When a person comes to a hospital with an emergency department seeking medical care,

21. basic EMTALA �rules� - continued they will be given a medical screening exam to determine whether they have an emergency medical condition,

22. basic EMTALA �rules� - continued and if they do, that condition must be stabilized before the patient can be transferred or discharged; unless

23. basic EMTALA �rules� - continued �the patient cannot be stabilized at the first facility, they may be transferred in an �unstable� condition to a facility that CAN stabilize but only if certain things are done to make sure the transfer is as safe as possible.

24. EMTALA (and 5150�s) -continued 5150 patients are by definition suffering from a psychiatric �Emergency Medical Condition� but if the facility is not a designated LPS 72 hour evaluation and treatment facility, it cannot stabilize or admit the patient involuntarily and therefore the hospital must transfer the involuntary patient to a facility that is so-designated

25. EMTALA -continued If person has medical emergency as well as a psychiatric emergency, that must generally be stabilized first, before the transfer of an unstable psych patient to a psych facility for stabilizing care Even if there is no apparent medical emergency, 5150 patients are still often brought to an acute care hospital ED first in order to get �medical clearance�

26. RIGHT PLACE, RIGHT TIME:TRIAGING CALIFORNIA�S MENTAL HEALTH CARE DELIVERY SYSTEM & HOW IT IMPACTS EMERGENCY DEPARTMENTS ASHLEY STONE, MPH California Hospital Association With Debby Rogers &ShereeKruckenberg

27. PROJECT DESCRIPTION Retrospective study of emergency department (ED) directors in California Quantitative assessment of the impact of patients with mental health needs on EDs through analysis of: Wait times to psychiatric evaluation Wait times to appropriate placement Availability of external resources to support EDs� efforts

28. INTRODUCTION 10.1 million ED visits in California in 2007. 324,000 of these visits (3.2%) were from patients with a psychiatric diagnosis(Williams, Pfeffer et al. 2009) Recent focus on �boarding� of patients w/ psychiatric issues in the ED Passage of the Lanterman-Petris-Short (LPS) Act, signed into law by Governor Ronald Reagan in 1967, further ended the practice of involuntarily committing mentally ill individuals. Unfortunately, the promise of adequate and sustainable community based care was unrealized, leading to a �revolving door� of homelessness, hospitalization, and incarceration for many individuals faced with debilitating mental illnesses in a fragmented system that does not provide appropriate levels of care when they are needed. The current mental health system is failing both patients, who suffer from debilitating mental illnesses, and health care providers, which are ill-prepared and under-resourced to meet the increasing demand of patients with unmet mental health care needs. deinstitutionalization� the movement that shifted mentally ill patients from state hospitals to community-based care. Passage of the Lanterman-Petris-Short (LPS) Act, signed into law by Governor Ronald Reagan in 1967, further ended the practice of involuntarily committing mentally ill individuals. Unfortunately, the promise of adequate and sustainable community based care was unrealized, leading to a �revolving door� of homelessness, hospitalization, and incarceration for many individuals faced with debilitating mental illnesses in a fragmented system that does not provide appropriate levels of care when they are needed. The current mental health system is failing both patients, who suffer from debilitating mental illnesses, and health care providers, which are ill-prepared and under-resourced to meet the increasing demand of patients with unmet mental health care needs. deinstitutionalization� the movement that shifted mentally ill patients from state hospitals to community-based care.

29. RESULTS 123 survey responses from ED directors; 42 counties Long wait times for patients w/ psychiatric issues to be evaluated and appropriately placed There were 123 survey responses from ED directors, from 42 out of California�s 58 counties. Approximately one-fourth of hospitals were LPS-designated facilities, meaning the facility can place and maintain involuntary holds for psychiatric evaluation and treatment. The survey results confirmed what we knew anecdotally: Wait times for evaluation and placement of psychiatric patients were long, exceeding the average wait times for patients presenting in the ED with non-psychiatric health issues (Figure 1) �Lack of beds� was overwhelmingly the most common reason for extended ED stays in this patient population. Specifically, ED directors cited lack of pediatric/adolescent psychiatric inpatient beds as the most common reason, followed closely by adult psychiatric inpatient beds Over one-third of hospital ED directors said that, on average, more than 50 percent of psychiatric patients presenting in the ED could have been cared for at a lower level of care (such as outpatient services) Less than half of ED directors reported utilizing or having access to community and county mental health resources to assist patients with mental health issues Open-ended responses gave more information about the problems faced in the ED, including limited PET team availability; stringent medical screening requirements; difficulty placing geriatric psychiatric patients; staff cuts; issues with transporting patients to other facilities; inability to get psychiatric evaluation when no inpatient beds are available; and decreases in resources available to hospitals and patients There were 123 survey responses from ED directors, from 42 out of California�s 58 counties. Approximately one-fourth of hospitals were LPS-designated facilities, meaning the facility can place and maintain involuntary holds for psychiatric evaluation and treatment. The survey results confirmed what we knew anecdotally: Wait times for evaluation and placement of psychiatric patients were long, exceeding the average wait times for patients presenting in the ED with non-psychiatric health issues (Figure 1) �Lack of beds� was overwhelmingly the most common reason for extended ED stays in this patient population. Specifically, ED directors cited lack of pediatric/adolescent psychiatric inpatient beds as the most common reason, followed closely by adult psychiatric inpatient beds Over one-third of hospital ED directors said that, on average, more than 50 percent of psychiatric patients presenting in the ED could have been cared for at a lower level of care (such as outpatient services) Less than half of ED directors reported utilizing or having access to community and county mental health resources to assist patients with mental health issues Open-ended responses gave more information about the problems faced in the ED, including limited PET team availability; stringent medical screening requirements; difficulty placing geriatric psychiatric patients; staff cuts; issues with transporting patients to other facilities; inability to get psychiatric evaluation when no inpatient beds are available; and decreases in resources available to hospitals and patients

30. WAIT TIMES FOR PATIENTS W/ MENTAL HEALTH NEEDS IN THE ED Mean wait time for psychiatric evaluation and placement determination in the ED, from the time the referral is placed until completed evaluation: 5.97 hours (95% CI 4.82 � 7.13) On average, ED directors reported that 42% of patients could have been adequately cared for at a non-emergency level of care (95% CI 38% - 47%)

31. MOST COMMON REASONS FOR EXTENDED ED STAYS #1: Lack of beds to place or transfer patients (pediatric/adolescent, adult, psychiatric medical-surgical, geriatric) #2: Inability to manage co-morbid medical & psychiatric conditions because of lack of inpatient beds #3: Lack of resources to conduct psychiatric evaluation #4: Lack of appropriate lower levels of outpatient care for discharge #5: Requirement for additional medical screening before inpatient placement

32. WHERE HAVE ALL THE PATIENTS GONE?

33. IMPLICATIONS OF RESULTS Dwindling resources & services Individuals suffering from illnesses that render them unstable led to seek services from a department that is intended to stabilize LPS Act, deinstitutionalization, & lack of inpatient psychiatric beds Who presents in the ED is very much dependent on input (why people present at the ED, and output (what services and resources are available to patients who do not expire in the ED) (urgent matters). There are several aspects of this model that are immediately relevant to psychiatric patients. Surely, there are many patients who present at the ED with a true psychiatric emergency medical condition, defined in AB 235(k)(1) as a "mental disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient as being either of the following: (A) An immediate danger to himself or herself or to others. (B) Immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental disorder.�13 But many patients who have mental health issues present in the ED for non-emergent reasons, including bouts of instability and psychotics episodes; psychiatric medication needs; individuals brought in by law enforcement; and frequent users of the ED (8-10 visits per year) seeking basic care but with behavioral health comorbidities.16 Many of these patients with non-emergent issues are in the ED because of input factors (demographics, health, or insurance status, the availability of alternative care, and perceptions of quality). Who presents in the ED is very much dependent on input (why people present at the ED, and output (what services and resources are available to patients who do not expire in the ED) (urgent matters). There are several aspects of this model that are immediately relevant to psychiatric patients. Surely, there are many patients who present at the ED with a true psychiatric emergency medical condition, defined in AB 235(k)(1) as a "mental disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient as being either of the following: (A) An immediate danger to himself or herself or to others. (B) Immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental disorder.�13 But many patients who have mental health issues present in the ED for non-emergent reasons, including bouts of instability and psychotics episodes; psychiatric medication needs; individuals brought in by law enforcement; and frequent users of the ED (8-10 visits per year) seeking basic care but with behavioral health comorbidities.16 Many of these patients with non-emergent issues are in the ED because of input factors (demographics, health, or insurance status, the availability of alternative care, and perceptions of quality).

34. CONCLUSIONS Long wait times for patients w/ mental illness indicate insufficient resources Patients not getting place- and time-appropriate treatment when brought to the ED In market economies like the United States, the burden of disability associated with mental illness is at the same level as that of heart disease and cancer.6 Yet, mental health services and programs continue to be reduced as more patients need them. Governor Schwarzenegger recently announced a 60 percent cut in funding for community mental health programs. 8 Right now, patients must meet strict dangerousness criteria to qualify for involuntary treatment. The LPS Act has fostered a mental health system that requires seriously mentally ill individuals to deteriorate before they can receive needed treatment. Frank Lanterman, an author of the LPS act, said, �I wanted the LPS Act to help the mentally ill. I never meant for it to prevent those who need care from receiving it. The law has to be changed.� Lanterman died in 1981; the LPS Act, signed in 1967, still has not changed.10 The ED is a way station for patients stuck in a mental health system in desperate need of transformation. In market economies like the United States, the burden of disability associated with mental illness is at the same level as that of heart disease and cancer.6 Yet, mental health services and programs continue to be reduced as more patients need them. Governor Schwarzenegger recently announced a 60 percent cut in funding for community mental health programs. 8 Right now, patients must meet strict dangerousness criteria to qualify for involuntary treatment. The LPS Act has fostered a mental health system that requires seriously mentally ill individuals to deteriorate before they can receive needed treatment. Frank Lanterman, an author of the LPS act, said, �I wanted the LPS Act to help the mentally ill. I never meant for it to prevent those who need care from receiving it. The law has to be changed.� Lanterman died in 1981; the LPS Act, signed in 1967, still has not changed.10 The ED is a way station for patients stuck in a mental health system in desperate need of transformation.

35. Issue Although we know the ED is not the most appropriate place for patients suffering from mental illness to obtain needed treatment, these individuals often have no other option Given this reality, how do we assist EDs in expediting appropriate care for our patients?

36. Other issues: What if patient refuses treatment or transfer? A hospital meets its EMTALA obligation if it offers the patient further examination and stabilizing treatment and informs the patient of the risks and benefits but the patient refuses to consent A hospital meets its obligation to transfer if it offers to transfer, informs the patient of the risks and benefits, but the patient refuses to consent to the transfer A 5150 patient cannot refuse transfer to an appropriate designated facility

37. What can we do? The crisis team can help the hospital: Determine whether there is an emergency medical condition (is this a 5150 situation?) Stabilize the client Arrange for the transfer of an unstable client to a �higher level of care� where he/she can be stabilized Assist with the safe transfer of the patient What will it take for hospitals to feel comfortable inviting us into their EDs to help?

38. 1. Assess and �hold� (5150) in the field 2. Transport to acute care hospital for medical clearance (5150) 3. Wait a long time to see a doctor for medical clearance (72 hour time is not being counted now!) Keep in mind what happens in reality�

39. 4. Wait for an open psych bed to be found 5. Transport to designated facility that has a bed 6. Wait at door of designated facility? (perhaps detour to crisis stabilization for 23 hours?) 7. Get assessed at door of designated facility (5151) What typically happens�(cont.)

40. 8. Per 5151 assessment: a. No admission � outpatient services instead b. Voluntary admission c. Involuntary admission (no gun for 5 years) 9. Discharge earlier than 72 hours if order by psychiatrist or psychologist working with psychiatrist 10. Discharge at 72 hours 11. Go through certification process for additional involuntary treatment

41. 5150 on Alzheimer�s patient � who will admit? Who is responsible if client elopes while waiting for medical clearance at the hospital? Can hospital/mental health crisis team consider insurance or $ while making the inquiry or does this violate EMTALA? A few of the unresolved 5150 issues:

42. Who is watching patient while waiting? Who has to find available bed (EMTALA responsibility)? What if the patient has drugs or alcohol on board and mental health assessment has to wait? �while waiting for medical clearance�.

43. Crossing state lines � whose law applies? What if criteria no longer apply at some point during the process? Who can �break� the hold? What if patient has to first be hospitalized in acute care facility due to serious medical problem? Does �hold� automatically reapply when they become ambulatory? What about patients in a designated facility who have to be 911�d out to acute care hospital for physical health emergency? More issues�.

44. More issues: What if hospital says patient is medically stable but PHF does not agree with their criteria for �medically stable�? What about communication/confidentiality issues that sometimes create barriers? What if patient refuses medical screening or medically stabilizing treatment?

45. EMTALA: Refusal to Consent to MSE Hospital must offer examination, treatment Inform of risks/benefits Document description of exam/treatment/transfer offered Document informed refusal in medical record, including reason for refusal Take reasonable steps to obtain written refusal that includes disclosure of risks/benefits Document facts and circumstances of refusal to sign Let patient leave

46. Try to identify answers to these questions ahead of time that make sense for YOUR county Formal or informal agreements help Meetings (quarterly?) to see how well it�s working Planning ahead

47. Questions/Discussion