DAL 16-03: OMH & DOH Addressing Emergency Mental Health Needs of NYS Individuals

November 15, 2016


Dear Chief Executive Officer:

The New York State Department of Health (DOH) and the Office of Mental Health (OMH) are jointly issuing this guidance to Public Health Law (PHL) Article 28 hospitals to clarify the requirements and expectations of hospitals regarding the appropriate care of individuals in New York State with mental health needs.


Throughout the State, disputes between general hospitals without psychiatric inpatient units and those with such units have been reported to both DOH and OMH regarding their relative responsibilities in responding to potential emergency mental health needs. Specifically, these disputes have arisen when either an individual has presented to an Emergency Department (ED) or is in emergency transport by local police or ambulance service, and is in need of a mental health evaluation. While emergency responders and hospitals attempt to ascertain which hospital will ultimately receive an individual who is in the midst of a mental health emergency, vital care is delayed and the patient could be harmed.

It has come to the attention of DOH and OMH that some hospitals have determined they are unable to receive these individuals because of a lack of either the specialized capability to receive an individual in mental distress (e.g., an on-call psychiatrist) or the capacity to treat the individual (e.g., an available psychiatric inpatient bed). This situation effectively results in the involuntary retention of individuals in a hospital without a formal mental health status evaluation and determination, which may constitute a violation of the individual's civil liberties under Article 9 of the State Mental Hygiene Law (MHL).

Specifically, a prolonged status determination may result in patients becoming "boarded" within the EDs of initiating hospitals. Boarding may occur when non-specialized hospitals are unable to identify a specialized hospital (i.e., one with an OMH-licensed psychiatric inpatient unit) that will accept a transfer for evaluation and stabilizing treatment. This is often the result of a lack of available psychiatric inpatient beds at the potential receiving hospital. However, it may also occur at hospitals with psychiatric inpatient units following a mental health evaluation, as a result of the same lack of psychiatric inpatient bed availability. In such instances, even a specialized hospital must identify another accepting specialized hospital for those patients in the ED requiring inpatient admission.

The boarding of patients in an ED, especially patients in need of a mental health assessment and/or services, has historically placed such patients at increased risk of being subject to restraint and/or seclusion. Often, EDs can be very chaotic and noisy, and ED staff are not always properly equipped to meet the needs of patients in mental health distress.

Federal Requirements

Holding a patient in the ED for an extended period of time may deny the patient of his or her right to receive quality care in a safe setting, and it may be a violation of Federal Emergency Medical Treatment and Labor Act (EMTALA) regulations. EMTALA governs the provision of services in Medicare-participating hospital ED settings, and requires that all individuals who present to the ED with a medical condition, whether physical or behavioral, receive an appropriate medical screening examination, stabilizing treatment or be provided with an appropriate transfer if the hospital does not have the capability to provide the treatment necessary to stabilize the condition, which may or may not require admitting the individual.

Under EMTALA, Medicare-participating hospitals with specialized capabilities (e.g., burn units, trauma designation, NICU, and psychiatry) must accept an appropriate transfer of an individual who requires such specialized capabilities, without prior insurance authorization and regardless of insurance or lack thereof or ability to pay, if the hospital has the capacity to treat the individual. This provision does not require that a hospital with a psychiatric inpatient unit accept every individual in mental health distress. If a transferring hospital has an individual with an emergency mental health condition, and the individual does not require any treatment beyond the capabilities available at the transferring hospital, the receiving hospital is under no obligation to accept the transfer.

However, the other consideration for when a hospital with specialized capabilities must accept a transfer of an individual is whether the hospital has the capacity to treat the individual. "Capacity" is not only determined by the hospital's current number of patients/available beds in a specialized unit, number of staff, or available equipment. If the hospital is able to (or has in the past) address occupancy issues by moving patients within the hospital, calling in additional staff, borrowing additional equipment from other facilities, the hospital may be considered capable under EMTALA of providing services to patients in excess of its specialized occupancy limit.

Medicare hospitals are required to accept appropriate transfers of individuals with emergency medical conditions for which treatment is not available at the transferring hospital, and for which the accepting hospital has the capability and capacity to provide stabilizing treatment to those individuals with unstabilized emergency medical conditions.

State Requirements

MHL Article 9 contains standards and procedures for the commitment of civil patients who require psychiatric inpatient care and treatment. The following are the most common ways in which persons may be committed under the statute:

  • MHL §9.13 – Voluntary Admission
  • MHL §9.27 – Involuntary Admission on a Medical Certificate ("2 PC")
  • MHL §9.37 – Director of Community Services
  • MHL §9.39 – Emergency Admission
  • MHL §9.40 – CPEP

All but four hospitals statewide with an OMH-licensed psychiatric inpatient unit are also authorized by MHL §9.39 to make a determination whether a person has a mental illness for which care and treatment in a psychiatric inpatient unit is essential to his/her welfare; that the person's judgment is too impaired for him/her to understand the need for such care and treatment; or, as a result of his/her mental illness, the person poses a substantial threat of harm to self or others. This is known as the "Emergency Standard." In New York State, such hospitals are termed "9.39" hospitals, while hospitals without such designation are termed "non-9.39" hospitals.

For 9.39 hospitals, a physician must examine and determine that the person meets this Emergency Standard. A staff psychiatrist must then, within 48 hours after admission, examine the patient and confirm the first physician's finding that the patient meets the Emergency Standard. If so, the individual can be admitted for up to 15 days. A patient may be held involuntarily beyond 15 days if he/she meets the "Involuntary Standard" and is converted to a §9.27 involuntary admission, in accordance with the required process, which allows a longer term involuntary hospitalization of persons in need based on the evaluation of three physicians, two of whom must be NYS-licensed physicians and the third of whom must be a member of the psychiatric staff of the hospital.

"Non-9.39" hospitals have expressed frustration with their "9.39" hospital counterparts for not accepting transfers for mental health evaluations, with the "9.39" hospitals often citing the lack of either the capability or capacity to accept such individuals. The same holds true for "9.39" hospitals seeking an available bed, when necessary, for psychiatric admission at other "9.39" hospitals.

Importantly, all hospitals licensed by DOH under Public Health Law (PHL) Article 28, whether possessing an OMH-licensed psychiatric inpatient unit or not, have, by virtue of their license, the capability to conduct a proper mental health evaluation in conformance with MHL Article 9. For example, as referenced above, MHL §9.27 provides the mechanism to authorize the two physicians (non-psychiatrists) to assess an individual experiencing mental health distress and make a determination for an Involuntary Admission – this is known as the "2 PC" standard.

Under MHL §9.27, local police/ambulance service may subsequently transport the individual at the examining physician's request to a 9.39 hospital, or a stand-alone psychiatric hospital, for admission. If psychiatric inpatient admission is determined necessary under the "2 PC" standard, a staff psychiatrist of the receiving hospital, other than one of the two original certifying physicians (even if a psychiatrist), must conduct an examination and confirm that the person meets the Involuntary Standard.

DOH and OMH Guidance

Based on the above Federal and State requirements, when a patient presents to the ED for emergency treatment, the hospital's first obligation is to screen the patient for the presence of an emergency medical condition, which may be physical or mental. The potential need for an available psychiatric inpatient bed cannot be determined until a mental health evaluation is performed. All parties should understand that not every individual experiencing a mental health emergency will require a subsequent psychiatric inpatient admission.

The primary focus for the initial care of the individual, therefore, should be to assess and stabilize the patient. DOH and OMH expect that, by virtue of their licensed status, all hospitals are capable of this fundamental clinical intake function. It is very important that necessary mental health evaluations not be delayed because a hospital claims it lacks the capability to assess and stabilize a patient, or because of conflict over which hospital has ultimate responsibility for treating the individual if the patient is in need of inpatient mental health care.

Just as "non-9.39" hospitals should not be on "ED diversion" from mental health emergencies due to not having a psychiatrist on call, 9.39 hospitals should not be on ED diversion simply because there may not be an available psychiatric inpatient bed. Also, as explained above, holding patients in the ED places providers at risk of non-compliance with applicable codes, rules and regulations. DOH and OMH advise hospitals to work together to develop plans to facilitate the care that is required for mental health patients who are presenting at EDs for evaluation and treatment, in order to assure that their mental health needs are identified and addressed in an appropriate and timely fashion.

The Joint Commission has also noted that when a hospital determines it has a population at risk for boarding due to behavioral health emergencies, hospital leaders should communicate with behavioral health providers and/or others in the community to better coordinate care for these patients. Given the potential hazards of extended stays in "non-9.39" hospitals for patients determined to be in need of a psychiatric inpatient admission, hospitals with psychiatric inpatient units are required to subsequently accept such patients if capacity exists.

If a hospital generally admits additional patients who present to their ED by moving patients to other units or calling in additional staff, that hospital would be expected, under EMTALA, to take reasonable steps to accept a patient in transfer who needs psychiatric evaluation and stabilizing treatment. Recipient hospitals should consider their options and develop plans for accepting requests for transfers in need of evaluation, and not simply deny the transfer requests based on the fact that there are no available beds at the time of the request from the transferring facility. Hospitals should not establish different admission criteria for its "own" patients versus individuals who require transfer for specialized psychiatric or other services which the hospital is able to treat.

In summary, DOH and OMH expect and encourage hospitals to work together to ensure appropriate and effective evaluation and treatment for individuals with mental health emergencies to ensure compliance with Federal and State requirements.

Thank you in advance for your cooperation.


Daniel B. Sheppard
Deputy Commissioner
Office of Primary Care and Health Systems Management
NYS Department of Health

Christopher T. Tavella, Ph.D.
Deputy Commissioner Deputy Commissioner
Division of Quality Management
NYS Office of Mental Health