Addressing the challenges behavioral health patients present when in crisis

Access to proper treatment for patients with behavioral and mental health issues has become a major issue in the United States and has received attention from the public and Congress. But, there are unique issues when a behavioral health patient appears at a hospital emergency room and the hospital must abide by the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. §1396dd). Catherine M. Greaves, counsel, and Kristin M. Roshelli of King & Spaulding, LLC addressed the challenges hospitals face in emergency situations with behavior health patients in a Health Care Compliance Association webinar held on July 25, 2017.

The behavioral health patient and EMTALA

When a patient comes to the hospital’s emergency department (ED) with a behavioral health condition and requests emergency treatment, the patient (1) may be a danger themselves or to others, (2) may lack orientation, which is interfering with his or her ability to meet basic needs such as nutrition or safety, or (3) may have an underlying mental illness. Patients may be suicidal or homicidal, assaultive or combative, delusional or psychotic, or experiencing withdrawal from drugs or alcohol.

Hospitals must ensure that EMTALA requirements are met, including conducting a medical screening as well as a psychiatric evaluation, properly stabilizing the behavioral health patient if a n emergency medical condition (EMC) exists, and addressing transfer issues, including the vehicle used to transfer have been addressed. In addition, the hospital must have policies and procedures that adequately reflect EMTALA requirements and must provide education and training on serving behavioral health patients for the ED and other hospital staff, including security. If the hospital is in a state that has laws requiring mental health patients to be evaluated and treated at designated facilities may clash with or be more stringent than EMTALA. Hospitals must not disregard EMTALA requirements.

Concerns specific to behavioral health patients

Greaves said that EDs have become the “de facto dumping grounds for psychiatric patients.” One out of 8 ED visits are for mental health disorders or substance abuse, which represents a large percentage when compared to the population as a whole. In addition, she pointed out a 2008 survey conducted by the American College of Emergency Physicians that found that 99 percent of emergency physicians reported admitting behavioral health patients daily. According to Greaves, much of this is due to the lack of available designated psychiatric hospital beds and the decrease in state facilities for behavioral health patients. Currently, there are only 14 beds available per 100,000 people, which represents a decrease of 90 percent since the 1990’s, and is the number of beds available in 1850. The optimal number of beds is 50 per 100,000.

MSE for behavioral health patients

MSE for behavioral health patients consists of two steps, an initial medical screening to rule out underlying medical/organic causes for symptoms followed by a psychiatric review once medical clearance has been determined. Greaves stressed the importance of conducting the medical screening examination before doing a psychiatric evaluation to rule out medical conditions that can trigger behavioral symptoms. As examples, she noted that drugs and alcohol can mask underlying medical conditions and infections, especially in the elderly, can trigger psychiatric behavior. She also emphasized that appropriate hospital personnel conduct screening.

Stabilization

Greaves noted that patients with behavioral health conditions are not quickly stabilized. Patients must be stabilized enough to tolerate a transfer or be discharged. Hospitals should consider whether the patient is protected and prevented from injuring or harming self or others; when using chemical or physical restraints, and is the underlying EMC stabilized. Although some patients refuse treatment, suicidal patients may not refuse medical and psychiatric evaluations and stabilizing treatment. If the patient is being transferred with restraint for stabilization, how long will the stability last and how long is the trip.

If the ED decides to transfer a patient that is not stable, the physician must explain the reason for the transfer and certify that the benefits outweigh the risk. The transfer, however, must comply with all of the other EMTALA regulations. Within the hospital’s capabilities, treatment must be provided to minimize the risk of harm, the receiving facility that agrees to accept the transfer must be contacted, and appropriate information must be sent to the receiving facility.

Transfer challenges

Behavioral health patients are transferred at higher rates than nonpsychiatric patients with much longer wait times for the transfer because of issues locating an available bed in a national shortage, insurance acceptance and prior authorization delays, and arranging transportation. When it comes to choosing the vehicle to transport behavioral health patients, there is no single method that is full proof. Hospitals should balance minimal interference with the patient’s dignity and self-respect, reduce the likelihood of harm to self or others, and prevent the transport experience from being perceived as a traumatic event.

Options for transportation include ambulance, police care, private vehicle, and a hybrid, but all present problems. An ambulance may not be a good choice because it is filled with objects that can be utilized to harm self or others and there is no barrier to protect the driver. A police car may traumatize the patient, a support person is not allowed, there is no established protocol for safe transport of behavioral health patients, and there is limited ability to intervene if a medical emergency occurs during transport. In addition, both ambulances and police vehicles brings a public cost. Private vehicles should not be used because family are generally not capable of providing appropriate care. Some states laws allow variations that make up a hybrid that may include the involvement of Mental Health Crisis Teams or unmarked police vehicles.

Access to behavioral health care is improving, but more work is needed

“The landscape for access to mental health and substance use services has markedly improve in recent years” and “it is highly likely that these trends will continue,” according to the Final Report of the White House Mental Health and Substance Use Disorder Parity Task Force. President Obama created the Task Force with the goal of developing a set of tools, guidelines, and mechanism to ensure that mental health parity is actually enforced. The Task Force’s Final Report summarizes its work including reviewing progress to date, identifying and taking immediate steps as needed, and outlining recommendations.

Task Force participants and directives

The President directed the Task Force, which included the White House Domestic Council, the Departments of Treasury, Defense, Justice, Labor, HHS, and Veteran’s Affairs as well as the Offices of Personnel Management and National Drug Control Policy, to review parity implementation; increase awareness of the protections that parity provides; and improve understanding of the requirements of parity and its protections among key stakeholders, including consumers, providers, employers, insurance issuers, and state regulations. The task force also was directed to increase the transparency of the compliance process and the support, resources, and tools available to ensure that coverage is in compliance with party and improve the monitoring and enforcement process.

Gathering information

Among the information gathered from March through October 2016, the Task Force looked at barriers to implementation and enforcement, party compliance and documenting parity violations, identifying behavioral workforce issues, documenting treatment limitations, and clarifying the role of states and the federal government in bringing about parity.

The role of mental health laws

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (P.L. 110-343) generally prohibits employment-based group health plans and health insurance issuers that provide group health coverage for mental health and substance use disorders from imposing less favorable benefit limitations on those benefits than on medical/surgical benefits. This includes restrictions related to financial requirements and quantitative treatment limitations, and nonquantitative treatment limitations. It also expands mental health parity requirements to substance use disorders, such imposing less favorable lifetime or annual dollar amount limits than the lifetime and annual dollar amount limits imposed on medical and surgical benefits.

The Patient Protection and Affordable Care Act (ACA) (P.L. 110-148) prohibits group health coverage and nongrandfathered individual market insurance from imposing lifetime and annual dollar limits on Essential Health Benefits (EHB), including mental health and substance use disorder services, and prohibits grandfathered individual markets from imposing lifetime dollar limits. The ACA increased access to mental health and substance abuse disorder coverage and parity by requiring coverage offered through Health Insurance Marketplaces and nongrandfathered health plans to cover EHBs including mental health and substance use disorder benefits. The ACA extended the application of the MHPAEA to the individual insurance market and qualified health plans and expanded Medicaid requirements to be in compliance with mental health parity.

Task Force actions

As directed by President Obama, the Task Force identified immediate actions that it could take in three main areas: education and awareness, clarification of parity requirements, and improving compliance, monitoring, and enforcement. In June 2016, the HHS and the Department of Labor jointly released a pamphlet for consumers that outlines the basic protections guaranteed by the MHPAEA and consumer rights to transparency and appeals, entitled, “Know Your Rights: Parity for Mental Health and Substance Use Disorder Benefits.” In March 2016, CMS published a Final rule to align the mental health and substance use disorder coverage benefits offered by managed care organizations, Medicaid, and the Children’s Health Insurance Program (CHIP) with parity protections required of the commercial market as well as releasing Frequently asked questions and hosting a webinar to explain the parity protections in the Final Rule.

In August of 2016, Substance Abuse and Mental Health Services Administration (SAMHSA) issued a report outlining promising best practices from state insurance commissioners related to implementing MHPAEA and monitoring and enforcement efforts to ensure compliance.

Recommendations

The Task Force recommendation fall into three main areas: supporting consumers, improving parity implementation, and enhancing parity compliance and enforcement. The Final Report identifies the specific recommendations for each area and provides details for developing and implementing the recommendations, and includes the initial steps it has taken. The recommendations include:

  • Supporting Consumers: Create a one-stop consumer web portal to help consumers navigate parity and provide simplified disclosure tools to provide consistent information for consumers, plans, and issuers.
  • Improving Parity Implementation: Update guidance to address the applicability of parity to opioid use disorder services, implement the Medicaid and CHIP parity final rule in a timely manner, conduct a thorough review of how parity principles apply in Medicare, and expand access to mental health and substance use disorder services in TRICARE.
  • Compliance and Enforcement: Provide federal support for state efforts to enforce parity through trainings, resources, and new implementation tools, increase federal agencies’ capacity to audit health plans for parity, allow the Department of Labor to assess civil money penalties for party violations, ensure parity compliance in state essential health benefit benchmark plans, and review substance use disorder benefits in the Federal Employees Health Benefits Program.

Highlight on Georgia: State focused on promoting access to care

Georgians have received several pieces of good health care access news lately as the state works ensure that young adults and those living in rural areas get the care they need. Despite constant financial concerns surrounding health care, the state seems to be making it a priority.

Rural Healthcare 180

Rural Healthcare 180 is an effort to promote the new donation program that gives tax credits to both individuals and corporations that make donations to rural hospitals. Kim Gilman, chief executive of Phoebe Worth Hospital and Southwest Georgia Regional Medical Center, said that the hospitals need to upgrade expensive equipment and provide raises to employees.

In total, 48 rural hospitals are eligible to receive the donations. Tax credits will be supplied for donations of up to $4 million, with caps starting at $50 million in 2017 and increasing by $10 million each year for the next two years until program expiration. The potential of additional funding will hopefully address the crisis, as many rural hospitals seem to be set for the same fate as the five that have closed in the past four years.

Mental health center expansion

A new Atlanta campus of a mental health facility will open in October, adding 32 beds for young adults aged 18 to 26. This Rollins Campus, named for a gift received from the O. Wayne Rollins Foundation, is Skyland Trail’s second Atlanta campus. The nonprofit treatment organization operates 48 beds, and 60 percent of patients treated are young adults. Older adults have found Skyland Trail to be a lifeline, including a 63-year-old physician who reported experiencing her first psychotic episode at 56 years of age. She spent five months at Skyland Trail, where she attended to more than her mental health and was able to lose weight through the organization’s nutritional program.

State could be an example for EpiPens® in schools

In the wake of the EpiPen pricing controversy and stories about children in schools denied access to their own pens, Georgia’s approach may offer solutions to ensure safety in situations where students might be unknowingly exposed to food allergens. Karen Harris, mother to three children with severe allergies, founded Food Allergy Kids of Atlanta (FAKA) in 2007 in order to unite families like her own. Her goal is to ensure that this “first-line treatment” is accessible to everyone with any type of allergies.

In 2013, Georgia Governor Nathan Deal (R) signed the Emergency Epinephrine Act, which was introduced by Senator Chuck Hufstetler (R-Rome) and backed by FAKA. The law encourages (but does not require, unlike some states’ legislation) schools to stock EpiPens for emergency use, and authorizes providers to write a prescription in the name of a school. The law also protects anyone who uses the medication in good faith through its good Samaritan provision. A second piece of state legislation allows professionals to prescribe EpiPens for many public entities, including churches, restaurants, and arenas, provided that they register with the state. According to Georgia Health News, only 12 non-school entities have registered, and the article points out that no discount programs are offered to these entities.

Although some are concerned about parents depending on school-stocked pens and failing to provide for their children’s needs, a Georgia school nurse was thankful that they were able to receive donated pens through Mylan’s school program. She noted that in rural settings, quick access to epinephrine is vital when hospitals are some distance away. She has trained 25 teachers to administer the medication in the event of anaphylaxis.

Highlight on Kansas: Lack of resources impacting state employee benefits, mental health patient care

Bad news for those working for the state of Kansas: health coverage is getting worse. The state will raise premiums, raise co-pays, and raise deductibles while reducing health savings account contribution. While the state works to maintain the health plan’s cash reserves, it must also find a way to fund more resources for those experiencing mental health issues – a problem many states are facing.

Employee health plans

The Kansas Health Care Commission is concerned about the level of the employee health plan’s cash reserves, and has decided to increase the cost to state employees. The cash reserve target over the next two years is $59 million.

In order to reach this level, Kansas state employees will be subject to a 9 percent premium rate increase, while employers are subject to a 7 percent increase. Secretary of Administration Sarah Shipman stated that the adjustments are intended to “maintain plan solvency into the future” to ensure the stability of the system.

The state plan involves various levels, and the changes are different for each level. Plan A workers will have their same $1,000 deductible, but those with family enrolled will be subject to a $3,000 total deductible. Co-pays for doctor visits will rise by $10, reaching $40 for a primary care visit and $60 for specialists. Plan C, the “high deductible” plan, will subject workers to 20 percent of the cost of a doctor visit after hitting $2,750 for single workers and $5,500 for those with family coverage.

All state workers will be subject to a higher out-of-pocket maximum: $5,000 for singles and $10,000 for families. The state not only implemented all of these cost increases, but also mandated reduction in employer health savings account contributions. Single employees lose $500 there, and those with dependents lose $1,000.

When did it start?

In January 2016, a consulting firm made 105 budget recommendations to the Kansas legislature that it claimed could save the state $2 billion over five years. A considerable part of the savings came from the idea of moving all state workers to a high deductible plan. The executive director of the Kansas Organization of State Employees was quite concerned about the recommendation, noting that much of the state workforce is aging and cannot obtain adequate care through high deductible plans. She also mentioned that reduced coverage would offer even less incentive for people to work for the state, especially considering low pay rates.

Kansas feeling the mental health struggle

The state held a mental health symposium at the Kansas Statehouse to discuss issues providers are facing. Last year, Newman Regional Health almost lost its federal certification after it had issues transferring a patient with thoughts of suicide. The hospital’s CEO, Robert Wright, told CMS that the state does not have a sufficient number of mental health beds, forcing hospitals to hold these patients in emergency rooms. Hospitals may face a reduced amount of compensation or none at all for this care.

Wright believes that the issues began when the community-based care movement shuttered mental institutions, reducing the number of beds. This idea might have worked if community-based programs were given the planned amount of funding. Wright is concerned about meeting these patients’ needs without sending the hospital into bankruptcy. Last year, one of the two state-run mental health infacilities in the state was banned from accepting new patients due to overcrowding, understaffing, and safety issues.

Suggestions

Symposium attendees brainstormed ideas to address the problem and better use scarce resources. A representative of the Kansas Hospital Association said she believed that expanding Medicaid eligibility would result in many Kansas residents with mental health problems gaining insurance. Part of the problem is overcrowding in emergency rooms and a difficulty finding psychiatrists, but some raises for state-run hospitals have allowed some stabilization. The president and CEO of a nonprofit offered to train school staff on suicide prevention techniques, and state legislators admitted that the allocated resources are not enough to meet patients’ needs.