On March 7, Gov. Scott Walker signed Assembly Bill 538, which enacts recommendations made by WHA’s Behavioral Health Task Force to better define in statute hospitals’ and physicians’ roles in Wisconsin’s mental health emergency detention process.
Signed into law as 2017 Act 140, the new law addresses liability concerns raised by hospitals and physicians when a health care provider disagrees with a law enforcement officer or county crisis agency determination to not proceed with an emergency detention of a patient. The new law also addresses a regulatory inconsistency between Wisconsin’s emergency detention law and the federal Emergency Medical Treatment and Active Labor Act (EMTALA), and more clearly aligns Wisconsin law and HIPAA regarding disclosures to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.
“Wisconsin’s hospitals and emergency departments are often the safety net for patients suffering a psychiatric crisis,” said Eric Borgerding, WHA president/CEO. “This new law takes important steps to ensure patients in need of emergency psychiatric treatment receive the best, most appropriate care.”
“Assembly Bill 538 was crafted through the bipartisan leadership of Representatives John Jagler and Eric Genrich and Senators Rob Cowles and Janis Ringhand from recommendations created by WHA’s Behavioral Health Task Force,” said Borgerding. “WHA has been proud to work with these lawmakers on this important legislation and applauds Governor Walker for signing Assembly Bill 538 into law.”
In summary, Act 140 makes three changes to Wisconsin law:
- Liability clarification. Wisconsin is unlike other states that provide health care providers in emergency departments authority to initiate an emergency detention. Instead, in Wisconsin, law enforcement and county crisis agencies have the sole authority to initiate and approve a detention. To address liability concerns and reduce the likelihood of conflicts between medical staff, law enforcement and county crisis staff, the bill provides better clarity in statute that a health care provider’s liability to a patient or other person is limited to the health care provider’s authority under Wisconsin law to seek, but not initiate, an emergency detention. The bill further clarifies that a health care provider may fulfill a duty to warn by contacting law enforcement or the county crisis agency.
- Regulatory protection/emergency department approval of a transfer. The bill removes the possibility that an emergency department could receive an EMTALA citation for an inappropriate transfer due to a transfer decision made by law enforcement or a county without the emergency department’s sign off. Specifically, consistent with EMTALA, the bill now requires that the emergency department agree that a transfer to another facility is medically appropriate before law enforcement may transport a patient under an emergency detention from the emergency department.
- Disclosure of health care information. 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 explicitly aligns Wisconsin law with HIPAA law by clarifying that a health care provider may disclose health care information in a good faith effort to prevent or lessen a serious and imminent threat to the health or safety of a person or the public to the extent permitted by HIPAA.
“Wisconsin’s emergency detention process is unique, complex, and impacts multiple stakeholders,” said Matthew Stanford, WHA general counsel. “Guided by recommendations from WHA’s Behavioral Health Task Force and following months of conversations and negotiations with stakeholders like the Wisconsin Counties Association to effectuate those recommendations through this bill, these changes are one more step toward a better functioning emergency detention system across Wisconsin.”
WHA detailed summary of the new Act 140 emergency detention reforms now available to members
WHA prepares summaries of new laws passed during the 2017-18 Wisconsin legislative session that could impact Wisconsin’s hospitals and health systems. WHA legal and government relations staff has prepared a more detailed summary of Act 140, available in the WHA members only portal.
The summaries are for WHA members only and will not be generally accessible on its website. Instead, they are posted to the WHA member portal, which can be found either at http://members.wha.org or by clicking on the “WHA Members Only” Icon on the www.wha.org website. Once in the WHA member portal, the summaries can be found in the dropdown menu under the “Legal Resources” tab. The member portal is a secure location and requires a first-time user to obtain a username and password. If you do not have a member account, go to http://members.wha.org and click on “Register” to create an account. If you have questions about how to register, contact Tammy Hribar at thribar@wha.org or 608-274-1820.
WHA member forum webinar focuses on Act 140 emergency detention reforms
On March 23, from 12 noon – 12:45 p.m., WHA will offer a WHA member forum webinar entitled “New Wisconsin Emergency Detention Law: Regulatory Reforms Impacting EMTALA, Liability, and Disclosure.”
This webinar is complimentary for WHA hospital and corporate members, but pre-registration is required. To register, visit: www.whareg4.org/WIEmergencyDet. For content questions, contact Matthew Stanford at 608-274-1820 or mstanford@wha.org. For registration questions, Kayla Chatterton at kchatterton@wha.org or 608-274-1820.