EXECUTIVE SUMMARY

Many hospitals and health systems are opening freestanding EDs, which offer benefits to both the patient and provider. Compliance and liability issues with a freestanding ED are not necessarily the same as with the in-house facility.

  • The availability of resources is a concern, because the freestanding ED will be held to the same standard as the hospital ED.
  • Transportation delays could create a liability risk.
  • EMTALA will apply to freestanding EDs in the same way as the traditional hospital ED.

As hospitals increasingly look to freestanding EDs (FSEDs) as a way to serve patients better while potentially increasing profits, legal and compliance experts caution risk managers that they may bring risks beyond the familiar concerns of a hospital-based ED.

There were 387 FSEDs operated by hospitals in 2016, a 76% increase from 2008 to 2015, according a recent report. There were another 172 independent FSEDs operated by for-profits. (See the story in this issue for more on the rise of freestanding EDs and how they operate.)

Risk managers should approach the idea of FSEDs with extreme caution, says Rodney K. Adams, JD, a healthcare attorney with the law firm of LeClairRyan in Richmond, VA. Providing emergency care — not the minor treatment found in urgent care clinics — outside the confines of the hospital could create significant risk of both malpractice liability and compliance concerns, he says.

While he has not seen an increase in claims related to FSEDs, Adams says he worries about the possibility every time a client opens a facility 10 or 15 miles from the hospital.

“You have a freestanding island out there and the question is whether they have the resources they need for any emergency that crosses their threshold,” Adams says. “Every ED is sometimes going to be short on resources, but if you need to, you can pull an anesthesiologist, pulmonologist, or whatever you need in a hurry from the hospital. In a freestanding ED, the ED physician is it. The best you can do is arrange transport to the hospital, which is going to delay their care.”

Trauma care is one scenario that Adams says should concern risk managers, as well as cardiac patients needing catheterization without delay. Many patients can be treated safely and effectively at an offsite ED, he says, but some will be at risk by delays in getting the patient from there to the hospital.

“You just don’t have the resources available the same way you do in the hospital, so it’s hard to say you’re providing the same level of care,” he says. “Most of the people coming to an ED don’t require that immediate access to the highest level of care, technology, and specialists, but if you call it an ED then eventually someone is going to come in requiring resources you don’t have.”

One way to mitigate that risk is to have an ambulance at the FSED to immediately transport patients to the hospital. Some facilities use that option, but it is not economically efficient and can cut deeply into any profits from the freestanding ED, Adams notes.

Even variables such as traffic or weather could affect the ability to move a patient quickly to a higher level of care, Adams says. A good strategy, he suggests, is for the freestanding ED to implement protocols for which patients should and should not be taken there, perhaps instructing ambulance services to continue on to the hospital ED if the patient is suffering a stroke and needs thrombolytic therapy, for instance. The standard for accepting patients may be more restrictive when excessive traffic or inclement weather is expected to make transfers slower, he says.

Freestanding EDs also must consider the possibility that transferring a patient to its own affiliated hospital is not the best choice, says Judith A. Eisen, JD, a healthcare attorney with the law firm of Garfunkel Wild in Great Neck, NY. If a patient is in need of immediate advanced care and the FSED transfers him or her to its own hospital 20 miles away, a plaintiff’s attorney might reasonably make the argument that the patient should have been sent to a competing hospital five miles away.

Such decisions should be considered in advance and protocols established to determine what is in the patient’s best interest, and the FSED should have necessary agreements with other facilities, she says.

The availability of specialist physicians is part of the concern about meeting the standard of care without all the resources of a hospital, Eisen says. Hospital EDs already struggle to put enough specialist physicians on call to provide timely care, and the addition of offsite EDs could exacerbate that problem.

“The expectations of what you can provide in your ED is going to be dictated in part by what your general capacity for care is, so a large academic teaching hospital might be expected to have more specialists available than a smaller acute care hospital,” she says. “But with a freestanding ED — that’s a different story. It’s not at all clear that the freestanding ED would be held to a lower standard just because it’s offsite. When the ED is part of the hospital, it most likely will be held to the same standards.”

Payment Issues Considered

State regulations will determine the limitations of freestanding EDs, and they vary widely, says Rachel D. Ludwig, JD, a healthcare attorney with the Jackson Kelly law firm in Charleston, WV. Some states impose no limitations, some have very specific licensure requirements, and other states prohibit them outright.

Payment issues also can be a concern, she says. Hospital-affiliated FSEDs would have to comply with the Medicare and Medicaid Conditions of Participation just like the rest of the hospital, she notes, but there could be difficulty in determining how to bill for reimbursement without submitting a false claim.

“It can get complicated with looking at transportation from your freestanding ED to your hospital, and maybe on to another hospital,” she says. “Determining when a patient is inpatient and outpatient can be tricky, too, and these are issues that lead you to significant trouble if you get it wrong.”

EMTALA is another concern because it applies in an FSED every bit as much as in a traditional hospital ED, Adams says. In some circumstances, EMTALA can even apply in an urgent care center, he notes. He recently had a healthcare client that wanted to ban a drug seeker from its urgent care center, but wondered if that could be an EMTALA violation. Adams explained that if the center holds itself out as a hospital facility, it is covered by EMTALA. The same reasoning would apply even more firmly for a freestanding ED promoted as part of the hospital or health system, he says.

Ludwig agrees, noting that any potential EMTALA violation will result in scrutiny of not just the FSED, but the hospital’s in-house ED as well. Investigators will look to the in-house ED and hospital to determine the capacity for care and whether the FSED met that standard, and the investigation could reveal deficiencies at the hospital ED as well, she says.

Eisen suggests that the staffing of an FSED also could come into question if there ever were a malpractice claim. Although the facility must be staffed by qualified physicians and nurses, there still could be some question as to the quality and experience of those working offsite as opposed to the in-house ED, she says, particularly if there is any perception that the in-house facility is the hospital’s “real ED” or if residents and others work there because it offers them more experience with advanced care and technology.

Even without actively promoting the FSED as part of the hospital or health system, it will be reasonable for the public to make the association if there is any connection at all, Adams says. So there is no way to get around the EMTALA or standard of care obligations by being circumspect about the relationship, and most hospitals promote the affiliation strongly to give credibility to the freestanding ED, he says.

“You can’t try to have it both ways. There’s no way to promote the ED as part of your hospital, but this ED is just an ‘ED lite’ that doesn’t do everything,” he says. “You can’t say it’s an ED, but not really an ED.”

SOURCES

  • Judith Eisen, JD, Garfunkel Wild, Great Neck, NY. Telephone: (516) 393-2220. Email: jeisen@garfunkelwild.com.
  • Rachel D. Ludwig, JD, Jackson Kelly, Charleston, WV. Telephone: (304) 340-1185.