QUESTION:        We have a Mental Health Unit (“MHU”) in our hospital. Sometimes, inmates from a local prison become inpatients on the MHU. Until recently, we have not required prison security to be on the MHU with the patient/inmate; we were concerned that would damage the treatment milieu. Now we’ve decided it’s necessary to have a prison security officer because of the real potential for violence from the patient/inmate, with possible harm to our other patients and MHU personnel. If the prison will not provide a security officer, will we have EMTALA-compliance problems if we say we cannot take the patient/inmate on our MHU?

ANSWER:          That’s a very good question, and for any individual hospital, the best answer probably comes from its CMS Regional Office (“RO”). Each RO has EMTALA “jurisdiction” over its region. It’s the RO that determines whether there has been an EMTALA violation or not.

Here’s the EMTALA side to the question. The inmate becomes a patient once he is brought to the hospital’s Emergency Department (“ED”). As required by EMTALA, the patient is given a medical screening examination to determine if the patient has an emergency medical condition (“EMC”). The definition of EMC under EMTALA includes a psychiatric EMC.

If the patient has a psychiatric EMC, the EMTALA duty upon the hospital is to stabilize that EMC if the hospital has the capacity and the capability to do so. Because this hospital has an MHU, it has the services and resources to stabilize a psychiatric EMC. (That’s assuming the MHU has an available bed. Here, it does.) So the hospital must proceed with the MHU inpatient process under EMTALA, correct?

Here’s the problem: The MHU is not a “forensic unit” which is meant to be able to handle prison inmates as a patient population. While every MHU has to be able to manage a certain level of violence – that comes with the regular mental health patient population – it’s not meant to manage an inmate population that brings significant concerns of safety and security. That’s the reason why this MHU has told the prison it can no longer take inmates as psychiatric inpatients unless there is a prison security officer on the MHU floor to guard them, as well.

The MHU’s EMTALA argument: It does not have the EMTALA capacity to care for the patient in the MHU without that prison security officer. As the MHU is not a forensic unit, when there are legitimate concerns about violent behavior by a prison inmate/patient, it does not have the capacity to take that patient without the prison security officer.

We have had conversations with different CMS RO EMTALA officials about this knotty problem, one quite recently. That EMTALA official was very sympathetic to the MHU’s plight, and agreed with the capacity analysis. Another RO EMTALA official with whom we once talked this through was not as sympathetic.

And, that’s not to criticize the ROs or their EMTALA officials. It’s a difficult problem, one also further complicated by the fact that EMTALA and state mental health laws and services are often a bad fit, and because there are simply not enough MHU beds in any region or in any state. These two underlying complications make a difficult problem even more difficult.