Rogers, Beloit Memorial Join WHA in Testifying on Emergency Detention Bill

WHA-led bipartisan bill addresses provider liability, EMTALA concerns

October 27, 2017

The Assembly Mental Health Committee received testimony from WHA and WHA members on October 24 in support of Assembly Bill 538. This bipartisan, WHA-led bill reconciles Wisconsin’s emergency detention law with federal EMTALA (Emergency Medical Treatment and Active Labor Act) requirements for appropriate transfers of patients and provides additional liability clarity for health care providers treating patients during a mental health crisis.

Reps. John Jagler (R-Watertown) and Eric Genrich (D-Green Bay) and Sens. Rob Cowles (R- Green Bay) and Janis Ringhand (D-Evansville) are the lead authors of the bill, which has 29 cosponsors from both sides of the aisle.

Jerry Halverson, MD, chief medical officer at Rogers Behavioral Health, and Sharon Cox, chief nursing officer at Beloit Health System, joined Matthew Stanford, WHA general counsel, in testimony in support of the legislation. 

“This bill provides better clarity in statute so a health care provider’s liability to an individual or third party is more clearly limited to the health care provider’s authority to seek, but not impose, an emergency detention on the individual,” explained Stanford. “The bill further clarifies that a health care provider may fulfill a duty to warn by contacting law enforcement or the county crisis agency.”

Halverson told the committee that under current law, “Chapter 51 puts our providers who are taking care of some of our most ill psychiatric patients in a double bind. It does not give the medical experts the ability to place an emergency detention, but also does not clearly absolve them from liability when the county/legal official decides to decline to place a patient on an emergency detention.”

“AB 538 addresses this liability concern that has long caused consternation at Rogers at all levels of care, other psychiatric facilities and other emergency rooms across the state,” said Halverson. Stanford also explained how the bill addresses the current misalignment between federal EMTALA requirements and Wisconsin’s emergency detention law.

“This legislation is a product of nearly three years of conversations between the Wisconsin Hospital Association (WHA) and the Wisconsin Counties Association (WCA) to find a compromise policy that helps remedy a regulatory conflict between Wisconsin law and federal law,” said Stanford. “This legislation does not change the process to initiate an emergency detention, but necessarily and correctly leans on the medical judgment of health care professionals in hospital emergency departments to ensure a patient transfer is medically appropriate.”

Cox shared a story with the Committee of an example where lack of alignment between Wisconsin’s emergency detention law and the federal EMTALA law resulted in a federal CMS citation for her hospital.  Cox said they appealed the federal citation arguing that Wisconsin’s emergency detention law gives no authority to emergency departments to initiate or direct placement for emergency detention. CMS denied the appeal, and their response was that Wisconsin needed to change its law to enable hospitals to comply with EMTALA, said Cox.

The Wisconsin Counties Association also provided testimony sharing their work on and comfort with the bill.

“There was significant back and forth between WHA, WCA, representatives from the county corporation counsel association, and county human services departments to develop language that ensures the best interests of an individual in crisis are met, while also ensuring the valuable role each entity plays in the process is respected,” said Sarah Diedrick-Kasdorf, deputy director of government affairs for the WCA. “After several years of meetings, conference calls, etc., Assembly Bill 538 was introduced that WCA believes protects the county role in the emergency detention process, while ensuring our partners are in compliance with federal law.”

Kristen Freier, MD, department chair of behavioral health medicine at Gundersen Health System, also spoke in favor of the bill to the Committee.

“This legislation better aligns statutes with integrated health care and clinical-based recommendations for treatment,” said Freier. “We are pleased to support this legislation for improved processes and clinical protocols for the safety of our patients and communities.”

WHA is working with Assembly Mental Health Committee Chair Paul Tittl (R-Manitowoc) and the bill’s authors to schedule a Committee vote on AB 538 that will advance the bill for a vote by the full Assembly before the end of the year.

This story originally appeared in the October 27, 2017 edition of WHA Newsletter