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In Depth: Legal Action Center Report: EMERGENCY: Hospitals are Violating Federal Law by Denying Required Care for Substance Use Disorders in Emergency Departments

The Bloomberg American Health Initiative at the Johns Hopkins Bloomberg School of Public Health, which provided funding to the Legal Action Center for this 85-page report. That which is contained within makes what I consider a provocative case for the assertion that failing to initiate and sustain what the authors consider evidenced-based, state of the art treatment for substance abuse disorder constitutes that basis for a violation of the requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA).

I have drawn from a press release describing the report, the LAC’s website, and selected portions of the report itself to provide this In Depth examination of the issue.

The following passage is notable, in that the press release emphasizes the EMTALA angle, and the passage mentions the Americans with Disability Act (ADA) and Title VI of the Civil Rights Act.

As the primary point of access to the healthcare system for many individuals, hospital emergency departments have a critical role to play in delivering medical care that helps patients with substance use disorder survive and access further treatment. Specifically, evidence-based practices include substance use disorder screening and diagnosis, administration of opioid agonist medications, and treatment referral facilitation along with naloxone distribution or prescription, as appropriate. The report, EMERGENCY: Hospitals Can Violate Federal Law by Denying Necessary Care for Substance Use Disorders in Emergency Departments, concludes that hospitals that fail to provide this care could face legal liability under four separate federal laws: the Emergency Medical Treatment and Labor Act (EMTALA); the Americans with Disabilities Act (ADA); the Rehabilitation Act (RA); and Title VI of the Civil Rights Act (Title VI). 

Specifically:

  • Hospitals may violate EMTALA when they do not conduct a medical screening examination for people who come to the emergency department with a substance use-related condition and provide stabilization services for patients diagnosed with substance use disorder.
  • Hospitals violate the ADA and RA when their emergency departments deny evidence-based practices for substance use disorder based on unfounded stereotypes, rather than legitimate medical considerations.
  • Hospitals violate Title VI when they deny evidence-based practices in the emergency department because of a patient’s race or ethnicity, or when their denial and/or adoption of these practices has a racially disparate impact.

Title VI’s pertinence is explained in greater depth here:

Further, emergency departments’ failure to implement evidence-based practices exacts a particularly harsh toll on Black, Latinx, and Indigenous communities, who, in addition to being more likely to seek care in emergency departments because of more limited access to primary care, are experiencing the highest increases in overdose death rates in some geographic areas for some substances.

The central thesis involves an assertion that generally accepted best practices are available for substance abuse-related disorders. The report contains additional detail about three such EMTALA-related obligations tied to those treatments.

The Emergency Medical Treatment and Labor Act imposes an affirmative obligation on virtually every hospital to provide medical services to people who come to the emergency department with a substance use–related condition

01 / Screening and Diagnostic Assessment
Emergency departments can use several validated screening tools to identify patients who should be examined for a substance use disorder using standard diagnostic criteria in the DSM-5.

02 / Medication for Opioid Use Disorder

While not all substance use disorders can be treated with medication, there are FDA-approved medications proven to help treat or avert opioid withdrawal, suppress opioid cravings and prevent opioid overdose. Buprenorphine, in particular, has been demonstrated to be administered effectively in the emergency department.

03 / A Facilitated Referral

Making a “warm handoff” at discharge to connect patients to office-based care or an addiction treatment facility is a proven way to ensure patients have continued treatment and long-term help managing their substance use disorder. Making naloxone available, when appropriate, will prevent fatal overdose pending treatment.

The report then makes explicit the link between withholding those treatments and an EMTALA violation

A hospital may be liable if:

  • The emergency department does not conduct a medical screening examination to identify a substance use disorder or performs a substance use disorder examination that is inconsistent with its procedures for screening and diagnosing patients with the same symptoms.
  • The emergency department identifies a substance use disorder-related emergency medical condition, but does not offer to administer buprenorphine — a medication used to treat opioid use disorder — as appropriate; and/or does not provide a facilitated referral to follow-up substance use disorder care and make naloxone available to reverse overdose, as appropriate.

The press release and report make evident that the Legal Action Center seeks to involve itself in bringing accusations of violations by providing counsel and support.

The Legal Action Center invites people who have been denied the substance use services described in the report to email them at ER@lac.org to share their story with the Legal Action Center and receive information about how to file a complaint with the appropriate federal agencies.

This is a fascinating report, thorough in its research and execution, and proactive in its intent.
At a minimum, practicing clinicians and administrative teams need to be aware of this initiative and seek clarification from counsel regarding its pertinence to your practice.

Paul Hudson, FACHE
Chief Operating Officer
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