Can the ER turn me away in a psychiatric emergency?

Two laws stand between you and the exit: a federal one that every hospital taking Medicare must follow, and a California one that says the psychiatric part out loud.

The short answer: no — not before a screening examination, and not while you have an emergency medical condition that has not been stabilized. Under the federal Emergency Medical Treatment and Labor Act, if you come to an emergency department and a request is made for examination or treatment, "the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department … to determine whether or not an emergency medical condition … exists."¹ The federal regulation defines that condition to include "acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in … placing the health of the individual … in serious jeopardy."² If one exists, the hospital must provide "such further medical examination and such treatment as may be required to stabilize the medical condition," or an appropriate transfer.¹ It "may not delay" the screening or treatment "in order to inquire about the individual's method of payment or insurance status."¹ California's own statute says "emergency services and care shall be provided to any person requesting the services or care … for any condition in which the person is in danger of loss of life, or serious injury or illness,"³ defines "emergency services and care" to include the screening and "the care and treatment necessary to relieve or eliminate the psychiatric emergency medical condition,"⁴ and defines that condition as a mental health disorder that renders the patient "an immediate danger to themselves or to others" or "immediately unable to provide for, or utilize, food, shelter, or clothing."⁴

What the federal law requires

The federal duty has three parts, and it attaches whether or not you have insurance — the statute says so twice, "whether or not eligible for benefits."¹

1. Screen. An "appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department."¹ For a psychiatric presentation the regulation's definition of an emergency medical condition includes "psychiatric disturbances and/or symptoms of substance abuse."²
2. Stabilize or transfer. If an emergency medical condition exists, the hospital "must provide either … for such further medical examination and such treatment as may be required to stabilize the medical condition, or … for transfer of the individual to another medical facility" under the transfer rules.¹ "To stabilize" means "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 from or occur during the transfer."¹
3. Do not ask about money first. "A participating hospital may not delay provision of an appropriate medical screening examination … or further medical examination and treatment … in order to inquire about the individual's method of payment or insurance status,"¹ and may not "seek, or direct an individual to seek, authorization from the individual's insurance company for screening or stabilization services" until after the screening and the start of stabilizing treatment.²

A transfer before you are stabilized is allowed only if you request it in writing after being told of the hospital's duties and the risks, or a physician certifies that the benefits of treatment elsewhere outweigh the risks — and, in either case, only as an "appropriate transfer" to a facility that "has available space and qualified personnel" and "has agreed to accept transfer."¹ ² A hospital with specialized capabilities "may not refuse to accept from a referring hospital … an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual."²

The duty ends when the hospital admits you as an inpatient in good faith to stabilize the condition,² or when you refuse the treatment offered after being told the risks and benefits — the refusal has to be recorded.²

What California adds

The state statute reaches hospitals through their state licence rather than through Medicare — "any health facility licensed under this chapter that maintains and operates an emergency department" — and says the psychiatric part explicitly.³

• The duty. "Emergency services and care shall be provided to any person requesting the services or care, or for whom services or care is requested, for any condition in which the person is in danger of loss of life, or serious injury or illness," at any licensed facility with an emergency department, "when the health facility has appropriate facilities and qualified personnel available."³
• Not on ability to pay. "In no event shall the provision of emergency services and care be based upon, or affected by, the person's ethnicity, citizenship, age, preexisting medical condition, insurance status, economic status, ability to pay for medical services," or other protected characteristics, "except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental disability is medically significant to the provision of appropriate medical care to the patient"; and the care "shall be rendered without first questioning the patient or any other person as to his or her ability to pay therefor."³
• Psychiatric emergencies, by name. "Emergency services and care" also means "an additional screening, examination, and evaluation … to determine if a psychiatric emergency medical condition exists, and the care and treatment necessary to relieve or eliminate the psychiatric emergency medical condition, within the capability of the facility," which "may include admission or transfer to a psychiatric unit within a general acute care hospital … or to an acute psychiatric hospital."⁴ A "psychiatric emergency medical condition" is "a mental health disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient" either "an immediate danger to themselves or to others" or "immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental health disorder" — and it says so "regardless of whether the patient is voluntary or involuntarily detained" under the Lanterman-Petris-Short Act: a 5150 hold is not a prerequisite.⁴
• No forced hold as the price of admission. A general acute care hospital or acute psychiatric hospital "shall not require a person who voluntarily seeks care to be in custody pursuant to Section 5150 … as a condition of accepting a transfer of that person after his or her written consent for treatment and transfer is documented or in the absence of evidence of probable cause for detention."³ What is a 5150 hold? →
• No dumping. "A person needing emergency services and care shall not be transferred from a hospital to another hospital for any nonmedical reason (such as the person's inability to pay for any emergency service or care)" unless a physician has examined the person, the transfer "will not create a medical hazard," the receiving hospital's physician has consented and the hospital has confirmed an appropriate bed, personnel and equipment, the transferring hospital provides appropriate personnel and equipment for the transfer, and the records and a signed transfer summary go with the person.⁵

If it goes wrong

Federal: "Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State," within two years.¹ The hospital faces civil money penalties, and an employee who reports a violation is protected from retaliation.¹ California: the Department of Public Health may fine a hospital up to $25,000 per violation; the Medical Board may fine a physician up to $5,000; and "any person who suffers personal harm … may recover, in a civil action against the transferring or receiving hospital, damages, reasonable attorney's fees, and other appropriate relief."⁶ The hospital bill that follows →

What to do

• Say the words. "I am asking for a medical screening examination for a psychiatric emergency." That request is what triggers the duty;¹ under the regulation it also exists if "a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment."²
• You do not have to settle payment before the screening. The hospital may ask at registration whether you are insured, but it cannot delay the screening to find out, cannot condition the care on ability to pay, and cannot send you to get your insurer's authorization first.¹ ² ³
• If you are told to go elsewhere, ask whether you have been screened, whether you have been found stable, and which physician certified the transfer; ask for the transfer summary.¹ ⁵
• If you leave against advice, know that the hospital's duty ends with your documented refusal.² Once home, the county crisis line and 988 remain. Crisis help without police →

Worked example

A man in his twenties walks into a community hospital's emergency department at 2 a.m., says he has taken nothing but has been planning to kill himself, and has no insurance card. The triage nurse must not send him to registration to sort out payment first.¹ The hospital must screen him;¹ a stated plan to end his life would ordinarily meet California's definition — acute symptoms rendering him "an immediate danger to themselves" — though that is a determination made in the screening, not an automatic consequence of the words.⁴ It must then stabilize him within its capability or arrange an appropriate transfer to a facility that has agreed to take him; if he is transferred before he is stabilized, only on his written request or a physician's certification, and with his records.¹ ² ⁵ If the hospital has no psychiatric beds and a Medicare-participating psychiatric hospital across town does, the regulation's rule for hospitals with "specialized capabilities or facilities" — which names burn, trauma and neonatal units as examples but is "not limited to" them — means it may not refuse an appropriate transfer if it has capacity² — and it cannot make him accept a 5150 hold as the condition of taking him if he has consented in writing.³

Q&A

Q: I have Medi-Cal. Does the federal law apply to me? A: It applies to anyone who comes to the emergency department, "whether or not eligible for benefits."¹

Q: The ER said they "don't do psych." Can they? A: They must still screen you, and if an emergency medical condition exists, stabilize you within their capability or arrange an appropriate transfer.¹ ² California's definition of emergency care includes the psychiatric screening and treatment "within the capability of the facility."⁴

Q: What if I calm down and want to go home? A: Once you refuse the offered treatment after being told the risks and benefits, and the refusal is documented, the hospital has met its duty.² Whether you are free to leave is a separate question governed by the 5150 criteria. What is a 5150 hold? →

Q: I was transferred to a hospital 90 miles away. Was that allowed? A: Distance alone is not the test. The transfer had to be an appropriate one to a facility with space and staff that agreed to take you, on a written request or a physician's certification, with your records.¹ ² ⁵

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Waiting for a bed: Can the ER hold me while I wait for a psychiatric bed? →

Sources

1. 42 U.S.C. §1395dd — (a) "In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1)) exists"; (b)(1) "the hospital must provide either— (A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection (c)"; (c)(1) the written request or physician certification before transfer of an unstabilized patient, and the "appropriate transfer" requirement; (d)(1)(A) civil money penalties; (d)(2)(A) the civil action as quoted, and (d)(2)(C) "No action may be brought under this paragraph more than two years after the date of the violation"; (e)(1)(A) "emergency medical condition"; (e)(3)(A) "to stabilize" as quoted; (h) "A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) or further medical examination and treatment required under subsection (b) in order to inquire about the individual's method of payment or insurance status"; (i) whistleblower protection — law.cornell.edu.
2. 42 C.F.R. §489.24 — (a)(1) the screening and stabilizing duties "regardless of ability to pay"; (b) "Comes to the emergency department," including "In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment for a medical condition"; (b) "Emergency medical condition means— (1) A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in— (i) Placing the health of the individual … in serious jeopardy"; (d)(2)(i) inpatient admission in good faith satisfies the duty; (d)(3) refusal of treatment, "The medical record must contain a description of the examination, treatment, or both if applicable, that was refused"; (d)(4)(ii) "A participating hospital may not seek, or direct an individual to seek, authorization from the individual's insurance company for screening or stabilization services … until after the hospital has provided the appropriate medical screening examination … and initiated any further medical examination and treatment that may be required to stabilize"; (e)(1) the restrictions on transfer before stabilization; (e)(2)(ii)(A)–(B) a receiving facility that "Has available space and qualified personnel for the treatment of the individual" and "Has agreed to accept transfer of the individual and to provide appropriate medical treatment"; (f) "may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual" — law.cornell.edu.
3. Cal. Health & Safety Code §1317 — (a) as quoted; (b) "In no event shall the provision of emergency services and care be based upon, or affected by, the person's ethnicity, citizenship, age, preexisting medical condition, insurance status, economic status, ability to pay for medical services, or any other characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental disability is medically significant to the provision of appropriate medical care to the patient"; (d) "Emergency services and care shall be rendered without first questioning the patient or any other person as to his or her ability to pay therefor. However, the patient or his or her legally responsible relative or guardian shall execute an agreement to pay therefor or otherwise supply insurance or credit information promptly after the services are rendered"; (f) "A general acute care hospital or acute psychiatric hospital shall not require a person who voluntarily seeks care to be in custody pursuant to Section 5150 of the Welfare and Institutions Code as a condition of accepting a transfer of that person after his or her written consent for treatment and transfer is documented or in the absence of evidence of probable cause for detention, as defined in Section 5150.05 of the Welfare and Institutions Code" — california.public.law.
4. Cal. Health & Safety Code §1317.1 — (a)(1) "Emergency services and care" means the screening, examination and evaluation and, if an emergency medical condition exists, "the care, treatment, and surgery … necessary to relieve or eliminate the emergency medical condition, within the capability of the facility"; (a)(2)(A) the additional psychiatric screening and "the care and treatment necessary to relieve or eliminate the psychiatric emergency medical condition, within the capability of the facility"; (a)(2)(B) that care "may include admission or transfer to a psychiatric unit within a general acute care hospital, as defined in subdivision (a) of Section 1250, or to an acute psychiatric hospital, as defined in subdivision (b) of Section 1250," and "This subparagraph does not permit a transfer that is in conflict with the Lanterman-Petris-Short Act … or the federal Emergency Medical Treatment and Labor Act"; (b) "emergency medical condition"; (j) "stabilized"; (k)(1) "Psychiatric emergency medical condition" as quoted, "regardless of whether the patient is voluntary or involuntarily detained for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment pursuant to the Lanterman-Petris-Short Act," with "(A) An immediate danger to themselves or to others. (B) Immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental health disorder"; (e) "'State department' means the State Department of Public Health"; (g) "'Board' means the Medical Board of California" — california.public.law.
5. Cal. Health & Safety Code §1317.2 — "A person needing emergency services and care shall not be transferred from a hospital to another hospital for any nonmedical reason (such as the person's inability to pay for any emergency service or care) unless each of the following conditions are met," (a) examination by a physician, (b) care such that "the transfer or delay caused by the transfer will not create a medical hazard to the person," (c) consent of a physician at the receiving hospital and confirmation of an appropriate bed, personnel and equipment, (d) "appropriate personnel and equipment that a reasonable and prudent physician and surgeon in the same or similar locality exercising ordinary care would use to effect the transfer," (e) records, (f) the signed "Transfer Summary" — california.public.law.
6. Cal. Health & Safety Code §1317.6 — (a) "a civil penalty by the state department in an amount not to exceed twenty-five thousand dollars ($25,000) for each hospital violation"; (c) physicians "may be subject to a civil penalty by the board in an amount not to exceed five thousand dollars ($5,000) for each violation"; (j) "Any person who suffers personal harm and any medical facility which suffers a financial loss as a result of a violation of this article or the regulations adopted hereunder may recover, in a civil action against the transferring or receiving hospital, damages, reasonable attorney's fees, and other appropriate relief" — california.public.law.

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