By Robert A. Bitterman, MD, JD, FACEP

President, Bitterman Health Law Consulting Group, Inc., Harbor Springs, MI

Dr. Bitterman reports no financial relationships relevant to this field of study.

A Rhode Island federal court determined that under the Centers for Medicare and Medicaid Services (CMS) Emergency Medical Treatment and Labor Act (EMTALA) regulations, a walk-in urgent care center was a “dedicated emergency department” (DED) because it held itself out “as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.”

Patricia Friedrich presented to the South County Hospital Medical & Wellness Center’s urgent/walk-in care facility complaining of severe pain and burning in her chest and right arm. Prior to arrival, she had sent several text messages to coworkers indicating that she needed to be checked out at the emergency room, and that she had seen the “South County Walk-In Hospital” from the highway, so she pulled in to get evaluated. She also texted that she felt she had all the symptoms of a female heart attack, but “knew it couldn’t be” … “but since I’m not a doctor I thought it was a good idea to get checked out.”1

The on-duty physician examined her, obtained several tests, and diagnosed her symptoms to be due to gastroesophageal reflux disease. She was treated with a “GI cocktail” and discharged with no follow-up ordered. The next day, Friedrich was found unresponsive at home and could not be revived by EMS personnel. An autopsy confirmed cardiovascular disease as the cause of death.1

The patient’s family sued the hospital and urgent walk-in center in federal court under EMTALA, claiming that medical personnel failed to appropriately medically screen and stabilize the patient’s emergency medical condition.1 The hospital filed a motion for summary judgment to get the case dismissed, claiming that EMTALA did not apply to its urgent walk-in center.1

To answer the question of whether EMTALA applied to this center, the court had to decide whether the hospital’s urgent/walk-in facility was a DED under EMTALA.1

The Court’s Opinion

First, the court noted that the center had to be a department of South County Hospital for there to be any possibility of attaching EMTALA duties. EMTALA only applies to Medicare-participating hospitals,2 but that includes any on-campus or off-campus hospital departments.3 South County Hospital was a Medicare-participating hospital, and it conceded that this center was operated as an off-campus “department of the provider” under its Medicare provider agreement.1

Next, the court noted that under EMTALA an individual must come to a hospital’s DED and request examination or treatment for a medical condition to trigger the medical screening exam (MSE) and stabilization duties of the law.4 The “request” prong also was conceded, but the hospital contended its urgent walk-in care center was not a DED.

CMS has defined a DED as “any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus” that meets at least one of three requirements:

  • It is licensed by the state in which it is located under applicable state law as an emergency room or ED;
  • It is presented to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
  • During the calendar year immediately preceding the calendar year in which a determination under this section is made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.3

The court determined that this urgent/walk-in care center qualified as a DED under the second requirement: The center held itself “as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.”1

The hospital had deliberately used the word “urgent” in naming its facility, when it could have simply called it a “Walk-In Clinic.” Evidence in the case showed that Friedrich, based on the name of the clinic, thought she was going to a hospital emergency room, as she had texted several coworkers that she had “gone to the ER.”

The hospital argued that its urgent/walk-in facility’s website made clear that it did not offer emergency care; however, the court noted that someone driving by the center with an emergency medical need “certainly could not be expected to check the website before walking in with chest pain.”1 The court noted that CMS perceives no distinction between “urgent” and “emergency” care, stating in its 2003 EMTALA Final Rule that established the definition of a DED: “We believe it would be very difficult for any individual in need of emergency care to distinguish between a hospital department that provides care for an ‘urgent need’ and one that provides care for an ‘emergency medical condition’ need. Indeed, to CMS, both terms seem to demonstrate a similar, if not exact, functionality.”5

Additionally, CMS had proclaimed that “the definition of [DED] would also be interpreted to encompass those off-campus hospital departments that would be perceived by an individual as appropriate places to go for emergency care.”5

Because the court found that the hospital had presented its urgent/walk-in facility “as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment,” it denied the hospital’s motion to dismiss the case.1

Comments

First, it’s important to understand that because the ruling made was a motion for summary judgment by the hospital, the court didn’t actually decide whether the urgent/walk-in center was a DED. Instead, the court determined that as a matter of law, the hospital wasn’t entitled to have the case tossed out of court before trial. At trial, the plaintiffs still must prove that the urgent/walk-in care center presented itself in such a way as to be considered a DED. It will be up to the jury to decide whether the facility presented itself as such. If so, the jury must decide whether the hospital violated EMTALA.

Since this care center was a provider-based hospital department, meaning it was owned by the hospital and operated under the hospital’s Medicare provider number, it probably was billing under the Emergency Department E&M codes, rather than under office-based codes, a fact the court did not address but one a good plaintiff’s attorney will raise at trial since it makes the center look even more like an ED.

If this center had not been operated under the hospital’s Medicare number, it would have carried no possible liability under EMTALA.6 The law only applies to Medicare-participating hospitals.7 Accordingly, urgent/walk-in care centers owned and operated by physicians do not have to comply with EMTALA. However, hospitals can own and operate such centers without EMTALA liability, provided the facilities are legally structured to avoid the attachment with the hospital’s Medicare provider number.8

Even if an urgent/walk-in care center provided emergency services and advertised and held itself as an actual ED, it would carry no liability under EMTALA if it was not operated as a department of a Medicare-participating hospital.9 That’s why EMTALA doesn’t apply to physician-owned, free-standing EDs, although many states, such as Texas, have enacted “EMTALA-like” laws applicable to non-hospital, free-standing EDs.10

CMS believes that hospital-owned urgent care centers (UCCs) almost always are DEDs, because such centers are held out as appropriate for urgent conditions; to the public, the words “urgent” and “emergency” are virtually synonymous. In fact, when CMS promulgated the EMTALA rules for off-campus hospital departments, the agency expressly rejected exempting UCCs from the DED definition, stating that they expected these entities “would in practice be functioning as ‘off-campus emergency departments.’”11 From the beginning, CMS intended EMTALA to apply to UCCs, and the courts are helping that along. UCCs may be the newest addition to the list of other hospital departments (besides the traditional ED) that present themselves to the public as providing care for patients presenting with emergency medical conditions and, thus, qualify as DEDs, along with labor and delivery units, pediatric EDs, psychiatric EDs, and typical psychiatric intake centers.

The manner in which UCCs, walk-in clinics, or variants thereof are legally structured, named, advertised, staffed, billed out, become known in the community, draft policies and procedures, operate under state licensing laws, are discussed, relate to EMS and other hospitals, etc., all become relevant to determining when a particular UCC will be considered a DED. It becomes a facts-and-circumstances determination, which the hospital/UCC must consider and control in advance and/or prove/defend at trial.

However, the key issue in this Rhode Island case is that many hospitals still don’t understand EMTALA’s definitions or the CMS implementing regulations. The definitions really matter and can mean something entirely different from what is usually understood by healthcare providers. It’s relatively easy to establish UCCs that don’t carry EMTALA obligations, provided the hospital engages counsel/experts in EMTALA who know how to legally structure and operate the UCC.12 Many large healthcare systems across the country have executed it successfully. Any hospital considering acquiring or starting an urgent/walk-in-type facility should first determine whether they can live with EMTALA’s mandates, or whether they want to structure the entity to avoid EMTALA’s reach.

REFERENCES

  1. Friedrich v. South County Hospital Healthcare, 221 F.Supp.3d 240 (D. RI 2016).
  2. 42 USC 1395dd; and see 68 Fed Reg 53249 (2003).
  3. 42 CFR 489.24(b).
  4. 42 USC 1395dd(a) and (b).
  5. CMS, Clarifying the Policies Related to the Responsibilities of Medicare Participating Hospitals in Treating Individuals with Emergency Medical Conditions, 68 Fed Reg 53222 (Sept. 9, 2003).
  6. 42 USC 1395dd; 42 CFR 489.24; 42 USC 1395dd(d)(2)(A).
  7. 42 USC 1395dd(e)(2). A “participating hospital” is defined as “a hospital that has entered into a [Medicare] provider agreement under section 1395cc of this title.”
  8. Id; and see Rodríguez v. American Intern. Ins., 402 F.3d 45 (1st Cir. 2005).
  9. Aponte-Colon v. Mennonite Gen. Hosp., Inc., Civil No. 10-1434CCC, (D.P.R. 2011).
  10. Texas Health & Safety Code, Section 254.153.
  11. 68 Fed Reg 53222 at 53248 (Sept. 9, 2003).
  12. Daudi AA, et al. Corporate and EMTALA Issues Related to a Health System’s Urgent Care Center Strategy. AHLA Connections, October 2016, pages 20-23.