A bipartisan group of four Wisconsin lawmakers released legislation September 27 to reconcile Wisconsin’s emergency detention law with federal EMTALA (Emergency Medical Treatment and Active Labor Act) requirements for appropriate transfers of patients and provide additional protections for health care providers treating patients during a mental health crisis.
The bill, circulated as LRB 1983/1 by Reps. John Jagler (R-Watertown) and Eric Genrich (D-Green Bay) and Sens. Rob Cowles (R- Green Bay) and Janis Ringhand (D-Evansville), better aligns Wisconsin law with federal EMTALA duties by explicitly establishing a role in Wisconsin’s emergency detention statute for emergency department staff. Under the bill, law enforcement may not transport an individual in custody of law enforcement from an emergency department until a hospital employee or medical staff have communicated to law enforcement that the transfer of the individual to the detention facility is medically appropriate.
The legislation also provides criminal and civil liability protection for actions taken in good faith by a health care provider to warn of what they believe may be an individual’s dangerousness to himself or others, particularly in situations when the health care provider disagrees with a county or law enforcement decision not to detain an individual. This provision clarifies that 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.
Generally, only law enforcement, with the approval of the county mental health crisis agency, may place an individual on an emergency detention without a court order. Wisconsin’s law does not permit health care providers to place an individual on an emergency detention without a court order. Thus, if law enforcement or a county crisis agency drops or will not initiate an emergency detention, a health care provider may not place an individual under an emergency detention, even if the health care provider reasonably believes the person is a danger to his/her self or others.
Finally, the bill also addresses a 2010 Court of Appeals case that concluded that an individual may be prohibited under Wisconsin law from disclosing information in good faith to a person in order to warn the person about a patient’s substantial probability of serious physical harm to the person. The bill clarifies that a health care provider or law enforcement officer may disclose health care information in a good faith attempt to warn others of a patient’s substantial probability of serious physical harm to the person. Federal restrictions on the sharing of patient health information (HIPAA) still apply.
WHA will continue to work with the Wisconsin Counties Association, the state’s law enforcement organizations and individual provider organizations including the Wisconsin Psychiatric Association and Wisconsin Medical Society to marshal support for passage of this legislation.
WHA General Counsel Matthew Stanford testified to these issues in 2013, when the Wisconsin State Assembly Speaker’s Task Force on Mental Health sought input and guidance from WHA during invited testimony to the task force. During this testimony, Stanford testified to requirements of Wisconsin hospitals under EMTALA, how Wisconsin’s emergency detention law conflicts with this obligation and how current state law has created concern among providers if a detention doesn’t occur when the provider believes it is necessary to protect the patient or the public. Several WHA groups have been involved in the development of this legislation, including WHA’s Behavioral Health Task Force and Public Policy Council.
WHA members are encouraged to contact their state elected officials and encourage them to co-sponsor the legislation. Lawmakers can add their name to the bill until the end of the day October 2. If you have additional questions, contact Stanford at mstanford@wha.org or WHA Senior Vice President, Government Relations Kyle O’Brien at kobrien@wha.org.
To see a copy of the legislation and a WHA memo asking lawmakers to support the measure, go to the links below:
2017WHA-Request-to-SupportLRB1983-9-27.pdf
2017LegislatorCoSponsorMemoLRB1983.pdf