Hospital emergency departments (EDs) risk legal liability by not referring patients to treatment with methadone or buprenorphine, and for not offering such treatment themselves, according to a 69-page report from the Legal Action Center. The report, released July 20, notes that due to the lethal supply of illicit fentanyl on the streets, many people who go to the ED after being treated for an opioid overdose (OD) have a high risk of overdosing again without treatment.
The report, EMERGENCY: Hospitals Can Violate Federal Law by Denying Necessary Care for Substance Use Disorders in Emergency Departments, is by Legal Action Center attorneys Sika Yeboah-Sampong, Ellen Weber and Sally Friedman.
According to the report, EDs should provide:
- Screening and diagnosis of substance use disorder (including a brief intervention for at-risk alcohol use). Substance use disorder screening and diagnosis enables ED practitioners to determine whether a patient who presents with a substance use–related condition has a substance use disorder that could pose a life-threatening condition: the most fundamental role of the emergency department. Multiple substance use disorder screening tools have been validated for ED use, and the Diagnostic and Statistical Manual contains clear diagnostic criteria for substance use disorders that can be incorporated into an emergency department’s electronic health record.
- The offer of opioid agonist medications (methadone or buprenorphine), as appropriate, for individuals with opioid use disorder (OUD). The offer to administer opioid agonist medications to patients with opioid use disorder, as appropriate, helps avert or treat opioid withdrawal and suppress opioid cravings. Buprenorphine, the most effective opioid agonist medication for ED use, reduces mortality by 50% and protects patients from opioid overdose. ED initiation of buprenorphine is effective and cost-effective, and hospitals nationwide have adopted protocols for its administration.
- Facilitated referral. Facilitated referral to treatment connects patients with substance use disorder to ongoing care, consistent with the emergency department’s role to link patients to definitive care. A facilitated referral addresses common roadblocks to care, including insurance status and transportation and language barriers. EDs also make naloxone (an opioid overdose-reversal medication) available to patients who use drugs that may include opioids to decrease their likelihood of death post-discharge. A facilitated referral is sometimes described as a “warm handoff.” It’s not just a list of phone numbers or treatment centers.
“In far too many other hospitals, however, EDs address only the acute symptoms of substance use and fail to conduct diagnostic testing for substance use disorder, offer opioid agonist medications to address a life-threatening opioid use disorder, or link patients to definitive care,” the report states, noting that some hospitals just don’t view substance use disorders (SUDs) as part of their duties, and in addition, stigma is at play. Some hospitals don’t want to attract patients with OUDs, out of concern about “safety.” Some don’t think they have adequate resources.
And many don’t actually have the connections with treatment providers in the community. Providing a “facilitated referral” is not an option if they don’t have anyone to refer to.
“Clearly, the implementation of evidence-based practices requires hospital planning,” the report states. But “too often the real barriers are stigma” and “limited availability of community treatment resources.”
Some hospital systems – and entire states — are taking care of patients with OUDs. Here is a sampling from the Legal Action Center report:
- Colorado Medical Professional Guidance: treatment practice guidelines recommend EDs incorporate evidence-based practices, including SBIRT, buprenorphine administration, and warm handoffs to continue patients on buprenorphine until they can enroll in an MOUD program.3
- Connecticut Hospital Practice: Yale New Haven Hospital ED provides screening, medication, as appropriate, and facilitated referral to follow-up care for patients with substance-use related conditions.
- Delaware Hospital Practice: Christiana Care Health System EDs embed peers to assist with facilitated referrals to local SUD facilities.
- District of Columbia Hospital Practice: EDs at Howard University Hospital, MedStar Washington Hospital Center, and United Medical Center provide MOUD to“recent overdose victims” per D.C. overdose reduction plan.
- Florida State Law: H.B. 249 (2017) requires hospitals to develop best-practices and policies (e.g., SBIRT, ED peers) to prevent drug overdoses.
- Georgia Hospital Practice: Northeast Georgia Medical Center EDs hire peers to liaise between hospital staff and patients, linking the latter to local resources (e.g., people in recovery).
- Illinois State Funding: Hospitals receiving certain funding must provide an intensive discharge planning process, including facilitated referrals and provision of ongoing recovery support for patients with SUD.
- Louisiana State Law: Regulations adopted under HB 210 (2015) require licensed medical practitioners who provide naloxone for opioid overdose to provide substance use education and referral to SUD treatment.
- Maryland State Law, Medical Professional Guidance and Hospital Practice: HB 1329/ SB 967 (2017) requires hospitals to adopt and implement discharge protocols for patients with SUD and/or treated for overdose. The Maryland Hospital Association adopted consensus recommendations to guide protocols including: (1) universal SUD screening; (2) naloxone dispensing or prescription for patients at risk of OUD or who have overdosed on opioids; (3) facilitated referral for patients with SUD; and (4) peer recoveryservices. 45 hospitals submitted their ED protocols, including those whose EDs initiate buprenorphine, and identified ED-administered buprenorphine as a best practice if patients have access to a second dose the following day
- Baltimore City Health Dept. Guidelines (2018): Baltimore City Health Department categorized ED services into three graduated levels of care: 396 -Level 3 (the most basic level of care that all Baltimore City hospitals are expected to satisfy) requires universal English/Spanish SUD-screening, naloxone prescription, facilitated referrals to community-based SUD treatment, and offer of at least one FDA-approved MOUD. Emergency: Hospitals are Violating Federal Law by Denying Required Care for Substance Use Disorders in Emergency Departments
- Massachusetts State Law and Medical Professional Guidance: H4742 (2018), requires acute care hospital EDs to maintain protocols for and ability to provide evidencebased practices, including administration of buprenorphine and/ormethadone to patients who have overdosed. The Massachusetts Health and Hospital Association and Massachusetts chapter of ACEP issued recommendations in 2019 for administering and/or prescribing MOUD in EDs, including: (1) ensuring providers are X-waivered or the ED has a telemedicine option for buprenorphine prescribing; (2) coordinating with local community services (e.g., pharmacies) to facilitate continuity of care; and (3) incorporating recovery coaches and support navigators – both covered benefits under Massachusetts’ Medicaid Managed Care and Children’s Health Insurance Programs – into the ED.
- New Mexico Hospital Practice: The University of New Mexico ED uses COWS to identify patients in opioid withdrawal, administers buprenorphine, and recommends discharging patients with a 14-day buprenorphine prescription and list of local SUD clinics. 398 New York State Law, State Funding and Hospital Practices: S1507C (2019), requires general hospitals’ EDs to develop “treatment protocols . . . for the appropriate use of medication-assisted treatment, including buprenorphine,prior to discharge” and protocols for situations where ED-administered MOUD is “not feasible[.]”
- New York City Relay Program: places wellness advocates (i.e., people with lived experience of SUD) in 13 city EDs to provide naloxone to patients with suspected opioid overdoses and engage them in the ED and 24-48 hours after discharge. For up to 90 days post-discharge, the wellness advocate offers supportive services, including naloxone kits, referrals to medication-based treatment, and assistance in receiving housing, food assistance and insurance coverage. “The vast majority” of these EDs initiate buprenorphine.
- Hospital Practices: BUFFALO Matters EDs administer and prescribe buprenorphine (14-day supply); secure follow-up appointment dates and locations for patients; and provide vouchers for a free 7-day supply of buprenorphine to uninsured patients and Medicaid enrollees.401 Ellenville Regional Hospital ED offers MOUD to every patient revived with naloxone, provides them with buprenorphine for 3 days, and connects them to ongoing treatment.402 State University of New York-Upstate ED evaluates all patients for OUD,and, as appropriate, treats for opioid withdrawal and refers patients to the bridge clinic for further treatment, including buprenorphine administration.
Hospitals could be liable for violations of the Emergency Medical Treatment and Labor Act (EMTALA). The report states:
EMTALA imposes affirmative medical care requirements on most hospitals that see individuals with substance-use related conditions in their ED. Emergency departments must conduct a medical screening examination of every individual to identify an emergency medical condition — a condition that, absent immediate medical attention, poses a serious threat to the patient’s health. They also must stabilize that condition before the patient’s discharge or transfer to another medical facility. EDs violate EMTALA when they do not conduct medical screening examinations to identify life-threatening substance use disorders and stabilize them.
Patients seek ED care for a range of substance use-related conditions that include withdrawal or overdose from opioids or other drugs, alcohol intoxication or poisoning, falls, injuries or infections related to substance use. Many of these conditions constitute an emergency medical condition. If the ED does not conduct a medical screening examination to screen for substance use or diagnose a substance use disorder, and the patient suffers harm as a result, the patient could successfully assert a violation of EMTALA’s medical screening examination obligation. To conduct that examination, practitioners have standardized screening tools, validated for ED use, that identify substance use not evident from the patient’s presenting condition as well as standardized criteria from the Diagnostic and Statistical Manual to diagnose the existence and severity of a patient’s substance use disorder.
A patient diagnosed with moderate or severe substance use disorder also could successfully assert an EMTALA stabilization violation if the ED does not offer appropriate medications and/or discharge planning which are necessary to ensure, with reasonable medical certainty, that the individual’s condition will not materially deteriorate post-discharge. Because untreated moderate or severe substance use disorders are characterized by compulsive substance use, an ED physician can foresee that a patient will continue to use substances post-discharge with potentially life-threatening consequences absent appropriate stabilization of withdrawal symptoms and cravings for drugs or alcohol. Thus, the failure to offer to administer an opioid agonist medication, such as buprenorphine — one of the most effective medications to avert or treat withdrawal, suppress cravings, and prevent future overdose — to patients with opioid use disorder, as appropriate, could violate EMTALA’s stabilization requirements.
Similarly, most patients with a substance use-related emergency medical condition will require substance use disorder treatment post-discharge for their generally chronic condition. While EMTALA does not require an ED to treat a patient’s underlying medical condition, the ED must help secure such care because it is foreseeable that a patient with moderate or severe substance use disorder will continue to use substances in a life-threatening manner absent treatment. Discharging patients with a list of treatment programs does not meet this EMTALA requirement. Finally, ED failure to make naloxone available at discharge for patients who use drugs that may contain opioids could also give rise to an EMTALA violation, as continued, life- threatening drug use is foreseeable, and naloxone effectively reverses opioid overdose.
Hospitals could also be violating the Americans with Disabilities Act (ADA), Rehabilitation Act of 1973 and Title VI of the Civil Rights Act of 1964. The report states:
Two federal laws prohibit disability-based discrimination — the ADA and Rehabilitation Act. Both laws are intended to eliminate discrimination by requiring state and local government programs and “places of public accommodation” — including hospitals — to treat individuals with substance use disorders and other disabilities equally and fairly, based on an objective evaluation of their qualifications for services, rather than outdated stereotypes and myths. Many ED patients who are denied evidence-based practices for substance use disorder could meet the requirements for proving disability-based discrimination: they (1) have a “disability,” (2) are qualified (or eligible) for the services or benefits sought, and (3) were denied those services or benefits because of their disability.
An individual with a substance use disorder who seeks care for a substance use-related emergency has a “disability” (substance use disorder) and is “qualified” for ED services because they have an acute injury or illness — the “essential eligibility requirement” for ED care. Individuals who “currently engage in the illegal use of drugs” do not have a “disability” as defined by the ADA, but EDs may not deny them substance use disorder treatment — or other health services — on the basis of such use. A hospital that denies ED patients evidence-based practices “because of” their substance use disorder or current illegal drug use could be liable for discrimination under two legal theories: disparate treatment and failure to provide a reasonable modification.
Disparate treatment discrimination occurs when an ED denies evidence-based practices for substance use disorder due to generalizations, assumptions, and stereotypes about people with substance use disorder, as opposed to legitimate non-discriminatory reasons. Many patients could show that the reasons they were denied these evidence-based practices are not legitimate, but are instead due to stigma or assumptions about patients with substance use disorder. Additionally, an emergency department’s failure to use evidence-based practices for substance use disorder typically occurs through its “methods of administration,” such as decisions not to stock buprenorphine for opioid use disorder or failure to implement protocols requiring consistent screening and diagnosis and facilitated referrals to treatment. These administrative methods can constitute another form of “disparate treatment” discrimination because they have the purpose and/or effect of discriminating against people with substance use disorder.
Finally, if a patient requests an evidence-based practice, such as a facilitated referral to treatment, which the ED does not provide, the hospital could be liable for failing to provide a reasonable modification of its policies or practices, as necessary to avoid discrimination.