Dueling signage in the ED? Experts disagree

EMTALA intent debated

Should hospitals post signs advertising their intention to collect insurance copays and deductibles in the vicinity of the emergency department (ED), where they are required to display the rights of patients under the Emergency Medical Treatment and Labor Act (EMTALA)?

In doing that, are they sending mixed signals?

"If it conflicts with the EMTALA message, [the Centers for Medicare and Medicaid Services (CMS)] cites it as a violation," says Stephen Frew, JD, web site publisher (www.medlaw.com) and EMTALA specialist, "and a sign that says there are copay or insurance requirements conflicts with the idea that you will provide care regardless of means or ability to pay."

On the other hand, counters Todd Taylor, MD, FACEP, vice president for public affairs at the Arizona College of Emergency Physicians and an EMTALA compliance consultant, "there is nothing under EMTALA in regard to posting signage about copays or even payment for services that is, per se, a violation. The [law] is fairly clear about what is and is not allowed."

That said, "Do I recommend [hospital EDs] put up signs like that? No, I don't," he says.

"What you have to be careful about, what you need to ask yourself, is, 'What's the purpose of the sign?'" Taylor adds. "I don't think it serves a purpose because you still have to collect the copay. It's not a violation, but if you do an assessment of why you are doing it, there is no point."

Physician offices put up such signs, he says, because "people will walk in, see the sign, reach in their pocket, see that they have no money and leave." If that's the objective of such a sign in the ED, Taylor adds, "you do have a problem."

"Hospitals should assess the purpose and the anticipated outcome for any signage they post," he advises. "The ED is different than any other part of the hospital and health care in general when it comes to how you approach payment and billing. The common rules, or even common sense, simply do not apply."

Many times the incident that brings CMS investigators to a hospital turns out not to be a violation, Taylor notes, "but it opens the door to airing your dirty laundry. The best way to prevent that is never get cited in the first place."

CMS, he says, has cited hospitals for posting certain types of signs that in the agency's words "unduly discourage(d) individuals from remaining for further evaluation."

Taylor concurs with Frew who frequently advises, "Pay no attention to what CMS says, watch what they do."

The key, he says, is to "be innovative, but not 'clever.' Where I see hospitals getting into trouble is when an administrator thinks he or she has a new 'clever' approach. Invariably, that results in an EMTALA investigation and often citation and fines."

Most signs inadequate, Frew says

The easiest of all requirements associated with EMTALA is that hospitals post appropriate signs — "in the right places, in the right size, and in the right languages" — explaining patients' rights under the legislation, says Frew. Even so, he contends, two out of three hospitals he visits have either conflicting signs or inadequate signage.

Hospitals give several reasons for the lapses "but none of them are good enough," he says, including: "We forgot to put them up when we were finished. We did not realize we needed one there. We did not realize they had to be that big."

CMS, Frew points out, requires that signs including the following language be posted in all public entrances, registration areas, and emergency department treatment and waiting areas, including separate areas for obstetrics, psychiatry, and urgent care clinics where patients present on an unscheduled basis.

"It's the law. If you have a medical emergency or are in labor, you have the right to receive, within the capabilities of this hospital's staff and facilities:

"Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to another facility, even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid.

"This hospital (does/does not) participate in the Medicaid program."

CMS requires that the sign be clearly readable from a distance of 20 feet, or from the expected vantage point of the ED clients. Signs are generally required to be about 18 inches by 20 inches, Frew says, and must be posted in foreign languages where applicable.

Signs in cubicles, for example, may be smaller, he adds, but still must be clearly visible.