Reminder – EMTALA reality: Since the dawn of EMTALA I have been telling people that one of the biggest compliance problems with the law is that nobody reads the definitions. Later when the regulations and site review guidelines (State Operations Manual) came out, the second big set of “definitions” were included in the law through the interpretations and guidelines that the regulators put out. Since then, revisions to the site review guidelines have modified or expanded on those definitions. Over the past few weeks questions have been coming to me fast and furiously about walk-in, urgent care clinics, “fast track” and free-standing ED’s under EMTALA.
Today I received notification of a court ruling centering on these types of delivery models and EMTALA in Friedrich v. South County Hosp. Healthcare, C.A. No. 14-353 S. The case centered on whether or not an Urgent Care that was owned and operated by a hospital was required to comply with EMTALA. The court’s answer in a ruling on a motion by the hospital to dismiss the case was that EMTALA does apply.
What you call things matters:
In this case, the plaintiff alleges that they were going to the hospital for chest pain and pulled into a facility with an Urgent Care sign. The Plaintiff alleges that they failed to provide care required by EMTALA. The hospital defended that an Urgent Care is not an emergency department and not, therefore, covered by EMTALA. They also argued that their website explained that they did not handle emergencies.
The court, however, followed the CMS regulations and site review guidelines definition of a “designated emergency department (DED).” Under the site review guidelines, CMS clearly warns that hospital owned Urgent Care departments are almost always “designated emergency departments” because they are held out as appropriate to treat “urgent” conditions – and to the public the word urgent and emergency are virtually synonymous. The court opinion went on to find that someone driving by with a medical concern is not likely to stop to visit the website.
So what are the technicalities?
1. Is it a hospital-owned service – is it billing under the hospital provider number? (Note: Rural Health Clinics are typically operating under a separate provider number.)– and
2. Is it held out to the public as an appropriate place to bring emergencies through name, signage, or advertising? — OR —
3. Does it see 1/3rd or more of its patients on an unscheduled basis for conditions similar to those typically seen in the emergency department? (Guidance and comments from CMS indicates that it does not count immunization campaigns, routine school or similar physicals, or forensic tests such as routine pre-employment blood tests.)
A hospital owned Urgent Care would typically be considered a DED for EMTALA purposes. (COMMENT: Just for the record, I wish CMS would think about their names and abbreviations for things – DED sounds a lot like “dead” and that is not even humorous when discussing an emergency department.) A free-standing urgent care that is owned by a physician group would be billing under a different provider number than the hospital and would NOT typically be considered to be regulated under EMTALA – unless the advertising or signage is done under the hospital name without disclosing the separate ownership, which could complicate things considerably.
A hospital-owned “convenient care” or “immediate care” or some other name (but NOT Urgent Care) would be generally looked at in terms of the 1/3rd walk-in patient standard to determine whether it fell under the DED standards. A note of caution here — CMS draws its own sample in its own way to determine whether or not the 1/3rd threshold has been reached or not. Again, a clinic owned by a physician group would be billing under a separate provider number from the hospital and would generally not be subject to EMTALA.
A hospital “fast track” associated with an Emergency Department is typically viewed by CMS as an extension of the ED and any patients triaged to Fast Track or diverted to sign in at Fast Track are also typically viewed as ED patients for EMTALA compliance purposes. Allowing patients to “self-select” ED or clinic at registration or triage has resulted in citations.
The concept of “freestanding emergency departments” also raises similar issues. A hospital-owned Freestanding ED (FED) would be typically held to the exact same standard as the main ED for EMTALA compliance. Privately owned FEDs would not typically be held to EMTALA, but many state licensing laws impose standards similar to EMTALA that are enforced by the State rather than CMS. Deceptive signage or advertising linking a FED to a hospital might trigger CMS claims of EMTALA jurisdiction.
CAUTION: Various other structures or care delivery modes may run afoul of CMS EMTALA standards based on the individual details of the incident or complaint.
Hospitals trying to evade EMTALA
Many of the new service clinic models have arisen because hospitals are seeking to evade the EMTALA financial and scope of care rules for better profit margins. Strict attention to the definitions is critical to this being successful. I have, for instance, been hired by hospitals to unwind the EMTALA issues caused by not considering the definitions when setting up these clinics. Fortunately, today more folks are asking for help before committing to names, advertising, and staff hiring.
Examples of the more common approaches to working around the EMTALA exposures include “same day appointment” clinics and limiting walk-in hours to stay below the 1/3rd unscheduled presentations threshold. Again, CMS reaches compliance decisions on the individual details of the situation.