Ethical Consideration in Psychiatric Boarding - The Effect of Current Interpretations of EMTALA on the Treatment of Psychiatric Patients.

By Ryan E. Behren

The United States healthcare system is currently facing a devastating, yet complex, ethical dilemma in its hospitals. A shortage of psychiatric beds in U.S. hospitals has created a crisis where it is possible for patients suffering from psychiatric emergencies to wait months in an emergency department (ED) for a psychiatric bed. The practice of holding patients in EDs as they await a bed is known as “boarding.”[1] Psychiatric boarding has become a pressing issue due to the overutilization of designated beds for inpatient psychiatric treatment.[2] In 2021, federal data revealed that, on average, 144% of designated beds for inpatient psychiatric treatment were being utilized.[3] Such a number is astonishing when one considers the shrapnel-like effects overutilization in the psychiatric context has on EDs, hospitals, patients, families, and the community at large. Notably, this dilemma places emergency clinicians in a seemingly unresolvable ethical quandary – a quandary where the clinician is forced to provide patients with inadequate care.

Much of this dilemma stems from the Emergency Medical Treatment & Labor Act (EMTALA). Under EMTALA, a “Medicare-participating hospital[] that offer[s] emergency services” must provide a medical screening examination (MSE) “when a request is made for examination or treatment for an emergency medical condition, . . . regardless of an individual’s ability to pay.”[4] When a request is made for treatment or examination of an EMC, hospitals are required to provide stabilizing treatments.[5] Generally, if “a hospital is unable to stabilize a patient within its capability, or if the patient requests,” the hospital needs to transfer the patient to a facility that can provide adequate care.[6] Additionally, in 2019, the Centers for Medicare and Medicaid Services (CMS) State Operations Manual for EMTALA states: “In the case of psychiatric emergencies, if an individual expressing suicidal or homicidal thoughts or gestures, if determined dangerous to self or others, would be considered to have an emergency medical condition (EMC). Psychiatric patients are considered stable when they are protected and prevented from injuring or harming him/herself or others.”[7] 

CMS’s guidance on when a psychiatric patient is “considered stable” is grossly inadequate considering the current shortage of psychiatric beds. As discussed above, under EMTALA, the current scope of treatment for psychiatric patients suffering from an emergency in an ED is prevention of harm from themselves and others. However, without the availability of psychiatric beds, psychiatric patients are often stuck in EDs for excessive periods of time after they are “considered stable.” In the absence of an on-call psychiatrist, the patient is left receiving treatment from emergency clinicians who are likely unqualified to treat mental health conditions.

Unfortunately, unqualified treatment during psychiatric boarding can result in numerous ethical harms, from medication errors to physical and chemical restraints in violation of a patient’s autonomy.[8] As such, it is of the utmost importance that we begin to ask what is required of emergency clinicians when treating psychiatric patients in the ED. A first step is to question whether CMS’s current interpretation of “stable” in the psychiatric context is viable. Although a more nuanced approach to the stabilization of psychiatric patients in EDs may be taxing on hospitals, their personnel, and their pocketbooks,[9] such an approach can offer a standard best practice for emergency clinicians to utilize when presented with psychiatric conditions they are otherwise unqualified to treat.

To quell this issue, CMS should adopt a broader definition and/or interpretation of the term “stable” when presented with a psychiatric patient in the ED. CMS’s current definition and interpretation are limited in effect to a patient’s material well-being, ultimately disregarding the mental anguish that led a psychiatric patient to the ED in the first place.  For example, 42 U.S.C.A. § 1395dd(e)(3)(A) defines “to stabilize” as “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result . . .” The “material” aspect of the definition is reflected in CMS’s interpretation of “stabilize” in the psychiatric context. However, one cannot treat diseases of the mind as if they are diseases of the body. As such, CMS should include “limiting mental deterioration” in their definition of “stable.” At the very least, CMS should interpret “stabilized” in the psychiatric context to include “limiting mental harm.”

It is important to note that the subjective and prolonged nature of mental health conditions makes it difficult to determine when a patient is no longer at risk of further mental deterioration or harm. As a result, enforcing a standard that goes beyond an objectively measurable standard, such as “material deterioration” or material harm, is complex. However, it is not impossible. Looking at how an emergency clinician treats a psychiatric patient offers an objective standard to measure whether the emergency clinician has limited mental deterioration or harm to a patient. It follows requiring standard best practices in the ED to limit factors that may increase the likelihood of mental deterioration and harm may offer a measurable standard in the psychiatric context. Standard best practices could include therapeutic techniques during evaluation (acting with patience, kindness, and understanding) and a subsequent personalized[10] pharmacological response after reaching a diagnosis.[11] Hopefully, we will begin to recognize psychiatric conditions as the complex, troublesome, and devastating health conditions they are. Such recognition is necessary to provide individuals suffering from these conditions with the care they deserve.

[1] The Joint Commission, Quick Safety 19: ED Boarding of Psychiatric Patients – a continuing problem, https://www.jointcommission.org/resources/news-and-multimedia/newsletters/newsletters/quick-safety/quick-safety--issue-19-alleviating-ed-boarding-of-psychiatric-patients/alleviating-ed-boarding-of-psychiatric-patients/ (last updated July, 2021).

[2] Alexander Tin, Overflowing Demand for Mental Health Care Stretching Hospitals, New Data Shows (Feb. 17, 2023 6:41 pm), https://www.cbsnews.com/news/mental-health-psychiatric-hospital-beds-shortage/.

[3] National Substance Use and Mental Health Services Survey (N-SUMHSS), 2021: Data on Substance Use and Mental Health Treatment Facilities 6, SAMHSA, https://store.samhsa.gov/sites/default/files/pep23-07-00-001.pdf (last visited Dec. 11, 2023).

[4] Emergency Medical Treatment & Labor Act (EMTALA), CMS.Gov, https://www.cms.gov/medicare/regulations-guidance/legislation/emergency-medical-treatment-labor-act (last updated Sept. 6, 2023).

[5] Id.

[6] Id. 

[7] Alexander Schmalz & Nicolas T. Sawyer, The EMTALA Loophole in Psychiatric Care, 21 W. J. Emerg. Med. 244, 244-46 (2020) (quoting CMS State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases (Aug. 19, 2019),  https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf).

[8] Jeremy R. Simon et al., The Impact of Boarding Psychiatric Patients on the Emergency Department: Scope, Impact and Proposed Solutions An Information Paper (2019), American College of Emergency Physicians, https://www.acep.org/siteassets/new-pdfs/information-and-resource-papers/the-impact-of-psychiatric-boarders-on-the-emergency-department.pdf.

[9] See Robert A. Bitterman, When is a Psychiatric Patient Stable Under Federal Law, EMTALA (May 8, 2018 8:30am), https://news.bloomberglaw.com/health-law-and-business/when-is-a-psychiatric-patient-stable-under-federal-law-emtala (discussing the negative effects of a more nuanced approach to the interpretation of stable in the context of a psychiatric patient). 

[10] I have used “personalized” in this context to denote a pharmacological treatment plan geared towards the patient’s specific mental infirmities, as well as the long-term mental health of the patient.

[11] Paraskevi Mavrogiorgou et al., The Management of Psychiatric Emergencies, Deutsches Arzteblatt Int’l,  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3078550/ (Apr. 1, 2011).