EMTALA reaches beyond your formal Emergency Department

EMTALA RISK TIPS

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.)

Generalized examples:

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.

13 thoughts on “EMTALA reaches beyond your formal Emergency Department”

  1. What would a place like “Patient First”(PF) be considered (only an example, not picking on them)? They are privately owned as far as I know, but it seems more than 1/3 of the patients are not scheduled. They are “walk-ins.” Does PF fall under the Federal EMTALA rules or does it also depend on the “mood” of CMS should there be a complaint?
    I do not think they are billing under a Hospital provider number.
    BTW, love to read your weekly articles, though I am a retired ED Doc.
    Thanks, Jack H.

    Reply
    • If the Patient First is an urgent care or convenient care operation, but not billing under a hospital provider number, it would be considered the equivalent of a private physician office, and would not be covered by EMTALA. If, however, they are a FED, and not billing under a hospital provider number, they will not be directly under EMTALA, but may be subject to EMTALA-similar state laws.

      Reply
  2. How about a hospital owned/run immediate care, but that is NOT attached to the main building, and bills under a separate medicare # than the main hospital? We have been following EMTALA to avoid any potential conflicts, but now one of our docs is saying we don’t have to.
    p.s. they recently changed the name to “urgent care…..:( “

    Reply
    • EMTALA applies to the hospital…as defined by the Medicare provider #. Since the Urgent Care operates under a separate provider number it is technically not covered by EMTALA unless it is caught up in the “holding out” situation. In your situation, I would want to know: hospital owned? same campus? hospital name on signs or door? urgent care?

      If the answers are YES to all of these, you may have a problem. First — because of separate number, if someone presents to the hospital, they may NOT be sent to urgent care without a written refusal of care in the ED. Second — if the person is sick or injured on campus outside the UC physical space, they must be sent to the ED and not UC. Third –the feds may decide that your UC is “holding out” as part of the hospital and as such, EMTALA would apply to how it handles patients except for first and second. My approach would be to provide full details to CMS regional office and ask for instructions — normally I don’t do that, but this is one where you can get nailed coming or going.

      Reply
  3. What if the Walk In Clinic is owned and operated by a Physician Group that is owned by a hospital, and the physician group operates under a different provider number?
    Would the 1/3 rule apply?
    Not called an urgent care, not billed under hospital provider number, held out to public as a walk in medical clinic for non-emergencies.
    Also, how does the “reserve your place in line” online sign in for a time affect the 1/3 rule, does that serve as an appointment?
    Thanks

    Reply
    • If the clinic is not owned and billed under the hospital provider number, it is not covered by EMTALA. Similarly, if a free-standing emergency department is not owned and billed under the hospital provider number, it is not covered by EMTALA under federal law, but may be under state law depending on the state.

      Reply
  4. Mother presented with 7 month old to hospital operated IHS clinic 50 miles remote from main ER.
    Mother and child sent away by staff and could not afford gas money to drive to main hospital. Did not inform provider. Mother sought care at another non-IHS facility. Provider contacted by hospital medical records to fill out a chart on patient that was never registered or examined. Hospital claims that it is a free standing clinic not EMTALA or any moral obligation. Since this is a Federally operated facility isn’t there some accountability.

    Reply
    • If the clinic was hospital owned and operated and held out as an appropriate place to bring emergencies, it is covered by EMTALA. If it is not held out but accepts ED/Acute Care type patients, then it is only EMTALA if more than 1/3 of patients fall into that category. Only CMS can determine EMTALA coverage on the clinic, and they will only do that if there is a complaint.

      Reply
  5. A hospital has established an Urgent Care center on hospital property, close to but not in the ED. UC bills under the Hospital’s Medicare provider number. The hospital does comply with EMTALA at the the UC center. The hospital wants to use the UC as a Fast Track and triage patients to the UC as an extension of the ED. The hospital will not allow patients to “self-select” ED or clinic at registration or triage. Is this permitted under EMTALA even though the UC center is (1) not in the ED, and (2) not called a Fast Track.
    Does how the UC bills for these visits affect the analysis?
    Thank you.

    Reply
    • As with all EMTALA situations, the structure is important, but the actual implementation is more important. UC’s of this type (hospital owned and operated and billing under hospital provider number) are considered “dedicated emergency departments” under CMS standards and should operate under the same EMTALA policies and procedures as the ED. Assuming that central triage is utilized and a uniform triage protocol is implemented so that who goes to UC and who goes to ED is consistent, it should be permissible to use the UC as the functional equivalent of a fast track — but it must follow EMTALA. The physical separation, however, would likely cause CMS to view it under the “physician office” rules in that patients would have to be “taken” to the UC rather than “sent”, all patients of similar triage categories are consistently sent to the same location, and it is located on the contiguous hospital campus.

      Reply
    • I do not give advice on how to correctly bill. I will suggest that billing under the hospital provider number is part of the definition of being owned and operated by the hospital. Areas that bill under separate provider numbers suggest a separate entity, such as a hospital affiliated Rural Health Clinic or a county mental health clinic in the ED. The implication is that areas operating under separate provider numbers cannot be used for EMTALA compliance purposes and movement to the separate provider billing area is considered a transfer out of the hospital, even if it is in the same building. Citations have been issued for failure to follow full EMTALA transfer protocols for just moving the patient across the hall into a separate provider (number) area.

      Reply
  6. Can you clarify if EMTALA signage requirements are applicable to physician groups that own Urgent Care Centers. Does it matter if they do or do not have signage indicating the office is an Urgent Care?

    Reply

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