'Scheduling' an Appointment in the ED: Is it Allowable Under EMTALA?

By Robert A. Bitterman, MD, JD, FACEP, President & CEO, Bitterman Health Law Consulting Group, Inc. Contributing Editor, ED Legal Letter

Waiting time has always been the number one complaint against hospital emergency departments (EDs). In an attempt to address the waiting issue, hospitals recently began allowing patients with nonemergency conditions to "schedule" their ED visits through the Internet and then wait at home until their "projected treatment time" in the ED.1-2

Through cloud-based Internet software vendors or phone-in applications, hospitals choose which days and times to make available for patients to sign-up for, or "check-in" for, in advance of coming to the ED. Typically, hospitals provide slots during their off-peak hours, such as early morning or late at night, but the systems are customizable and changeable so that hospitals can add, subtract, modify the available slots, or even turn off the system via the web at any time based on patient flow.

Patients choose an available time at a participating hospital and complete an online registration form, which includes the patient's chief complaint and other relevant medical data. The system is only for patients with a nonemergent condition. The registration form is then transmitted to the hospital ED and serves as the placecard to hold the patient's place in line to be seen in the ED.

In actuality, patients are just checking into the ED in advance of coming to the ED; the system is really an advance ED registration process; it is NOT a scheduling, appointment, or reservation service. It is better seen as a mechanism to "hold a place in line" and receive a "projected treatment time" when visiting a specific ED.

Upon arrival at the hospital, the patients who have registered in advance are triaged in the usual manner, and if their condition is deemed to be an acute emergency, they are taken care of in exactly the same manner as any other patient with the same acuity would be managed. If they are determined to be nonacute, they are placed in the queue to be seen in the order in which they "arrived" at the ED, but their online registration time is deemed to be the time they "arrived" at the ED.

Vendors and hospitals assert that the patients who register in advance "are not skipping the line in front of everyone else. They're simply waiting somewhere other than the waiting room."3 However, it is true that some patients who come to the ED before the person who registered online physically arrives at the hospital, will get seen after that person who registered online.

In other words, patients at these participating hospitals can now sign into the ED by registering online or by showing up at the ED and registering in person. It's analogous to "call-ahead seating" at your favorite restaurant. If the eatery allows you to call to reserve your place in line, you may get seated before those who actually arrived at the restaurant before you did.

A typical hospital advertisement for the service is:

"[General Hospital] is pleased to offer our patients the convenience of online registration and emergency room appointments so that you can hold your place in line and wait for your pre-scheduled ER appointment in the comfort of your home — or anywhere else you choose."

Charges for the service. Hospitals pay the vendor a contractual amount each month to provide the technology. Hospitals, in turn, charge the patient from $9.99 to $24.99 for the privilege of holding their place in line at the ED. The fee is in addition to any of the other usual costs for the ED visit. Hospitals typically refund the fee paid if the patient has to wait more than 15 minutes past their projected treatment time to be seen by the emergency physician.

Not all hospitals charge the patients a fee to use the system, and some hospitals which originally charged a fee to patients have since stopped charging for the service.

The advantages to the patients from the ED advance check-in system are that:

• They don't have to wait in a crowded hospital ED where they may not feel comfortable.

• They spend less time in the ED waiting room, reducing the risk of spreading or contracting infections.

• The ED is often the only source of care available to some persons, particularly during off hours and on weekends/holidays. Additionally, many patients don't have primary care providers, and even if they do, the providers are frequently too busy or it's too difficult to get timely appointments.

• The ED is a "one stop does all" proposition. Other facilities and physician offices often don't have the resources or the knowledge base to handle urgent medical or traumatic conditions.

• They have greater satisfaction with their care and the hospital ED experience

Advantages to the providers from the ED advance check-in system include:

• Improved operational efficiency because entry of patients into the system is smoothed out and volume is better managed by shifting some patients out of the busy times to the non-busy times.

• Decreased length of stay of the ED patients and decreased "left before examination" (LBE) rates — both of which increase hospital/emergency physician group revenue, enhance patient satisfaction, and decrease litigation risk.

• Revenue added to less busy times, which helps cover fixed costs of the hospitals and physician groups; patients who use the service are typically more sophisticated and technically savvy, and more likely to be insured/have financial resources to pay for the services provided.

• Greater patient and family satisfaction with the ED experience

Are hospitals that use pre-registration systems violating EMTALA, the federal law that prohibits discriminatory treatment in the emergency department?4-5

Whether the "scheduling" ED visits system complies with the Emergency Medical Treatment and Labor Act (EMTALA) is best examined from two perspectives: first, if the hospital charges the patient a fee to use the service, and, second, if the hospital does not charge the patient to use the service.

1. The hospital charges the patient a fee to "hold their place" in line before they arrive.

EMTALA requires the hospital to provide an "appropriate" medical screening exam to any individual who "comes to the ED" and requests examination or treatment of a medical condition.4,6

When individuals pre-register with the ED online, they have not yet legally "come to the ED," as that term is defined by the Centers for Medicare and Medicaid Services (CMS) in the EMTALA regulations and accepted by the federal courts.6-7 Therefore, the pre-registration process is not governed by EMTALA.

However, EMTALA is triggered once the individual physically "comes to the ED" and requests examination or treatment. At that point in time, the hospital has a legal obligation under the law to provide an "appropriate" medical screening exam (MSE).4,6 The purpose of the "appropriate" MSE is to determine whether the patient has an emergency medical condition (EMC), as that term is defined by the law.

Triage by an ED nurse (including review of the patient's complaint and medical information submitted with the pre-registration form) does not constitute an MSE. Triage determines the acuity of the patient's condition and the order in which the individual will be medically screened by the emergency physicians (which includes mid-level providers under the supervision of the emergency physicians.) Triage does not count as an MSE no matter how trivial or "non-emergent" the patient's condition appears to be at the time of triage (or via the online registration).

All persons presenting to the ED with any medical complaint, not just urgent or emergent complaints, must be medically screened by the emergency physicians.4.6.8

For the MSE to comply with EMTALA, it must be an "appropriate" MSE, which is a legal term of art defined by CMS and the federal courts to be an exam "reasonably calculated" to determine if an EMC exists, and one that is provided uniformly in a non-disparate and non-discriminatory manner to all.4,6-8

Let's assume hospitals provide an exam reasonably calculated to exclude the presence of an EMC, irrespective of whether the patient pre-registered or registered upon arrival to the ED.

The issue then becomes whether the hospital's process for screening the pre-registered patient is uniform, non-disparate, and non-discriminatory compared to the hospital's process for screening patients who register upon arrival to the ED.

It is the process the hospital uses to screen patients that the CMS and the federal courts will examine to determine if the MSE was "appropriate" and compliant with EMTALA.

Furthermore, EMTALA at its core is a non-discrimination statute; CMS and the courts hold that any disparate treatment of a patient in an ED for non–medically indicated reasons is generally considered against the law. As stated by the 10th Circuit Court of Appeals, the disparate treatment standard imposes an obligation on the hospital to assure that they "treat every patient perceived to have the same medical condition in the same manner."7,9

Since the MSE requirement is triggered upon the patient's presentation to the ED, from that point forward, the hospital's screening process must be the same for everyone. In the case of a patient who paid a fee to be pre-registered, that patient is seen faster upon arrival than a patient who did not pay the fee prior to arrival; therefore, in my opinion, the hospital's use of the pre-registration system and charging a fee is clearly illegal under EMTALA.

Giving preference to one patient for monetary reasons necessarily means delaying the MSE for other patients who don't pay the fee. There is no question that once EMTALA is triggered upon arrival to the ED, that the process of medically screening the two groups of patients is different, and it's especially different because one group is paying for the privilege of a premium service.

In the federal 6th Circuit Court of Appeals, which governs the states of Michigan, Ohio, Kentucky, and Tennessee, a plaintiff must prove not only that the hospital failed to follow its standard screening procedures (i.e., it provided "disparate screening"), but also that the hospital had an illicit motive for failing to follow its standard procedures.7,10

The 6th Circuit defines improper motives to include financial reasons, as expected by the legislative history of EMTALA, which would, in my view, include the payment of the pre-registration/"hold place in line" fee. The 6th Circuit also adds to the definition nonmedical prejudicial reasons such as race, sex, politics, occupation, education, personal prejudice, drunkenness, HIV status, and spite.7,10

Only the 6th Circuit holds that the term "appropriate" refers also to the motives with which the hospital acts. Every other circuit, as well as CMS, holds hospitals liable for disparate screening regardless of the hospital's motivation because the plain language of the law does not include motive as a necessary element for EMTALA liability.11

To my knowledge, as of yet, no court has ruled on the legality of the pre-registration/fee charge "scheduling" process utilized by hospitals, as described. Furthermore, there has been virtually nothing published in the medical or legal literature on the issue. One health care attorney opined in an article published in ED Legal Letter that the practice "is a pretty clear EMTALA violation" ... and that the practice will "undoubtedly bring scrutiny from regulators and legislators."12

In summary, in my opinion, the described hospital practice of screening patients who pre-registered and paid a required fee differently than those who didn't is a violation of EMTALA. In my opinion, both CMS and the federal courts would also view it as a violation of the law.

2. The hospital does not charge the patient a fee to utilize the "hold their place" service.

Even if hospitals don't charge a fee, but pay a licensing fee to a vendor in order to provide the pre-registration service to the hospital's patients, it is my opinion that the practice still violates EMTALA. However, this is not as clear-cut.

Hospitals could argue that their "standard medical screening process" includes the option to register online as well as to register in person at the ED. The hospitals could further argue that every patient has the same opportunity and choice of registering online instead of in person. (The counter argument is that only those patients with access to the technology [Internet/smart phones with mobile apps] can use the online system, which is ultimately to the detriment of those less well off who may not have the means to afford or procure access to the technology. For example, according to a recent Pew report, 20% of adults in the United States do not use the Internet at all, and cost of access is one of the reasons.14

Ultimately, though, I believe that CMS and the courts would focus on the fact that after patients arrive at the ED and EMTALA is triggered, the process the hospital utilizes to provide the MSE is not the same for everyone; some individuals receive preference over other individuals who present with the same or similar complaints. It is this disparate process that would lead the government entities to determine that the practice violated both the spirit of EMTALA and the letter of the law.

I don't believe this process would be considered a violation by the 6th Circuit, however, as there would be no illicit motive for the disparate treatment. In fact, the hospital's motives would be deemed a good faith attempt to improve the overall service to its community and enhance patient satisfaction. However, this salutary motive would be irrelevant to CMS and to all the other circuits in deciding whether the practice violated EMTALA.

Additional EMTALA or Liability Issues to Consider

There is an exception to EMTALA's medical screening exam requirement that applies to registered outpatients brought to the ED. Individuals who have begun to receive scheduled outpatient services as part of an encounter (as defined by CMS), other than an encounter that the hospital is obligated to provide by EMTALA, are not considered to have "come to the emergency department" for purposes of triggering EMTALA.14 This exception was designed to avoid the application of EMTALA to outpatient encounters that experience complications that necessitate bringing the patient to the ED for emergency intervention. For example, if a patient suffered complications during an outpatient endoscopy procedure at the hospital and needed to be moved to the ED for emergency care, EMTALA would not apply to that patient's visit to the ED.

A hospital's ED pre-registration process would not meet the CMS definition of an outpatient encounter that would obviate the application of EMTALA. First, the clinical encounter would not have begun by the time of the patient's arrival to the ED, and, second, the individual's arrival at the ED requesting examination or treatment for a medical condition would clearly trigger the application of an encounter (the MSE) that the hospital was obligated to provide by EMTALA.

EMTALA also has a "no delay on account of insurance" requirement.4,6 This means the hospital can't delay an individual's access to the MSE on account of their insurance status, to obtain any financial information, or because of any economic reason. The ED pre-registration forms often include a request for insurance information.

Since this registration process occurs before EMTALA is triggered, the process itself does not violate the law. However, if the hospital used the information on the registration form to either speed the MSE for those insured or to delay the MSE for those uninsured once they arrived at the ED, then it would be a violation of the law.

It is always better that the triage staff and the physicians providing the MSE be blinded to the patient's insurance status until the time of disposition. That way, CMS or a litigious patient cannot reasonably claim that the hospital delayed access to the MSE or treated the patient any differently due to their uninsured status. It also minimizes the avenues of attack by plaintiff attorneys.

The pre-registration process may also expose the hospital to state malpractice liability risk.

The websites have plenty of disclaimers that the system is "not for use with life-threatening, urgent or emergent medical conditions." However, as a "safeguard," when the hospital receives the pre-registration form, one of its triage nurses reviews the chief complaint and medical information provided to determine if it is reasonable for the patient to wait until his or her projected treatment time or whether the nurse should call and instruct the patient to come to the ED immediately. Thus, the triage nurse is making a decision that either it is not necessary to call the patient to come to the ED right away, or it is necessary to call the patient and recommend that he or she come to the ED immediately. Legally, this may be construed under state law to be "assuming a duty" and establishing a hospital-patient relationship. Once the duty is assumed, it must be carried out reasonably in accordance with the standard of care.

Failure to call the patient to come to the ED immediately when a reasonably prudent nurse would do so may then be actionable negligence on behalf of the hospital should a patient who waited until his or her "projected treatment time" suffer an adverse outcome.

As noted earlier, because the interaction occurs before the patient "comes to the ED" under CMS's regulations, there can be no EMTALA civil liability related to this aspect of the pre-registration process.

Ironically, hospitals would most likely be better off from a liability perspective if they didn't ask for the patient's chief complaint or transmit medical data to the ED in advance to have the triage nurse review to determine if the patient should come to the ED immediately. Thus, the decision of whether and when to come to the ED would remain solely with the patient. This would be exactly as if the patient called the ED for advice and the ED said, "Sorry, we don't give advice over the phone but we are here 24/7 to evaluate your condition if you believe it is warranted." The reason hospital EDs stopped giving phone advice years ago was to leave the decision-making responsibility of whether or when to come to the ED for medical evaluation to the patient, so as to specifically avoid liability related to providing advice to persons who had not yet been examined.

Should we be encouraging patients with urgent, but not emergent, medical conditions to utilize a hospital emergency department for their care?

No, we shouldn't. In the short term, the practice may help the hospital's bottom line and improve patient satisfaction, but in the long term, it would be better to drive patients to more appropriate and less expensive settings that better serve the interests of the patients, the providers, the payers, and the community/nation as a whole — and that don't violate federal anti-discrimination laws such as EMTALA.

One way to enhance patient satisfaction related to ED waiting times and to smooth out the volume of both emergent and less urgent patients presenting to the ED without violating EMTALA is to better publicize, in real time, the average wait times of area hospitals.

For example, Wake Med Health & Hospitals runs six EDs in the Raleigh-Durham area of North Carolina. The system posts online the average wait times of each of its facilities so that anyone can check the wait times of the hospitals in their area and "self select" one based on wait times, location, etc. (Available at http://www.wakemed.org/landing.cfm?id=1615.) It also has a mobile app for smart phones, which provides the same data on a real-time basis. (Available at http://www.wakemed.org/landing.cfm?id=1606.)

Communities as a whole, rather than individual health care systems, could collate the average wait times of hospitals in their community and make the information publically available via web and mobile platforms, particularly smart phone apps. Patients can then use the average wait times in their decision-making process of which hospital ED to utilize.

However, the long-term goal should be to set up systems that allow patients to use technology to get to the right health care service at the right time at the best price.

Patients with non-emergent but urgent medical conditions will continue to use the ED until health care providers figure out a way to provide the same services available at the ED in a manner that is acceptable to the patients. Patients long ago figured out the extensive advantages of ED services, even if they usually had to wait longer than they would like, including:

• immediate access to care;

• care at a location nearby;

• care at a location that has the necessary resources to evaluate and manage the condition, including imaging studies such as CT, ultrasound, X-rays, and laboratory studies; and

• immediate access to physician specialists, if indicated.

The ED is the ideal "one-stop shop," and everything that needs to be done gets done in a single visit — no traipsing around town over days (or weeks) from primary care provider to X-ray and/or lab centers and then to specialists and/or hospitals. If you show up at an ED and need a surgeon, one is provided for you. If your bone is broken, it is fixed. If you need a diagnostic CT scan, it is done, with the results known in a matter of hours before you leave the ED.

The objective should be to establish locations that can achieve the same advantages as the ED, but without the EMTALA restrictions and without the high charges.

That location is an urgent care center, particularly one attached/integrated with a primary care system that can amalgamate the patient into a medical home type of arrangement for future care.

There are ways to legally structure urgent care centers such that they do not come under the umbrage of EMTALA. In that case, payments for preferred appointments or advance pre-registration systems, such as the practice described above, are perfectly legal as well as desirable for the patients and providers. They are also highly favored by the insurance companies or state Medicaid offices, which pay the bills.

Additionally, providing the services outside the control of EMTALA allows providers, insurers, managed care organizations, and even state Medicaid agencies to establish such programs for select patient populations, such as only their patients, only insured patients, or only Medicaid patients.

Witness the currently ongoing firestorm created by the Washington state Medicaid agency when it tried to curtail "inappropriate" ED visits by not paying the providers for medically screening those patients, even though the providers were required to do so by federal law (EMTALA). The same issue is burning in every state, although to a lesser extent than in Washington. For example, the South Carolina Medicaid agency recently explored whether it was possible to circumvent EMTALA for Medicaid patients presenting to EDs with non-urgent medical conditions. The Medicaid agencies could instead use real-time scheduling technology to redirect patients and, thus, reduce unnecessary emergency room visits by securing immediate appointments for their Medicaid patients with community health centers or contracted providers. CMS may even provide funding for such programs.

Hospitals and EDs themselves would benefit from systems incorporating urgent care centers/primary care systems through the ability to schedule urgent or timely follow-up appointments at those locations upon discharge from the inpatient setting or the ED (the urgent care centers, particularly when staffed with emergency physicians, can often handle more conditions/follow-up issues than primary care providers).

Using technology to make the follow-up appointment before the patient leaves the ED leads to more patients actually keeping their recommended follow-up appointments. For example, a study recently published in the Annals of Emergency Medicine demonstrated that the use of an Internet-based scheduling program linking a safety-net ED with local community clinics significantly improved the frequency of follow-up for patients without primary care relationships.14

This is the expectation of the future, particularly as the health reform act is implemented and accountable care organizations take center stage. Governments will demand that "inappropriate visits" to the ED be reduced, and that providers and insurers act in concert to provide the right level of care at the right locations. Rather than encouraging non-emergent patients to visit EDs, we should be thinking longer-term and implement methods to drive those patients to non-ED locations that are properly staffed and equipped to meet their needs on a timely basis. Real-time, cloud-based or mobile appointment scheduling systems fit very nicely into that future.

Summary

In my opinion, hospitals preferentially screening patients who pre-registered with the ED via an on-line service is prohibited by EMTALA, regardless of whether the patient pays a fee for the premium service. Additionally, I believe the practice, as it is currently implemented, does create some malpractice litigation risk for the hospital, although it is likely minimal.

Moreover, there are better methods to accomplish the same goals as the pre-registration program that do not violate EMTALA, do not increase a hospital's malpractice risk, and, in the long-term, will better serve the patients, the community, the payers, and the country as a whole as we struggle to provide timely access to quality emergent and urgent medical care in a cost-effective manner.

References

1. Kusterbeck S. Patient Flow Solutions: Appointment-setting in the ED pleases patients, helps clinicians manage patient surges. ED Management, December 2011, pg. 138-140.

2. Kusterbeck S. Asking for $$ for Quicker Care? You're Asking for a 'Legal Disaster.' ED Legal Letter 2010;21(3):32.

3. See "Making an appointment for the emergency room a growing trend," by Molly Hennessy-Fiske, Los Angeles Times, January 30, 2011, available at http://articles.latimes.com/2011/jan/30/local/la-me-er-waits-20110130.

4. 42 USC 1395dd.

5. EMTALA applies only to hospitals that meet the regulatory definition of a "Medicare participating hospital" which provides emergency services.

6. 42 CFR 489.24 et seq.

7. The two seminal MSE cases are Cleland v. Bronson Health Care Group, Inc, 917 F2d 266 (6th Cir 1990) and Gatewood v. Washington Healthcare Corporation, 933 F2d 1037 (DC Cir 1991) which provide the original analysis of the meaning of "appropriate" in reference to the MSE.

8. Bitterman RA. Providing Emergency Care Under Federal Law: EMTALA. Published by the American College of Emergency Physicians, January 2001; Supplement 2004. (Available from ACEP's publication department at 1-800-798-1822 or at www.acep.org/bookstore.) Second printing.

9. Phillips v. Hillcrest Medical Center, 244 F.3d 790 (10th Cir. 2001).

10. Roberts v. Galen, 111 F3d 405 (6th Cir 1997).

11. See for example Marshall v. East Carroll Parish Hospital Service District, 134 F3d 319 (5th Cir 1998); Summers v. Baptist Medical Center Arkadelphia, 91 F3d 1132 (8th Cir 1996); Eberhardt v. City of Los Angeles, 62 F3d 1253 (9th Cir 1995); Correa v. Hospital San Francisco, 69 F3d 1184 (1st Cir 1995); Power v. Arlington Physicians Group, Ltd, 42 F3d 851 (4th Cir 1994); Repp v. Anadarko Municipal Hospital, 43 F3d 519 (10th Cir 1994); Williams v. Birkeness, 34 F3d 695 (8th Cir 1994); Holcomb v. Monahan, 30 F3d 116 (11th Cir 1994).

12. Statement of attorney S. Allan Adelman, JD. See Asking for $$ for Quicker Care? You're Asking for a "Legal Disaster," ED Legal Letter, 2010;21(3):32.

13. Digital Differences, The Pew Research Center, April 13, 2012, available at http://pewinternet.org/Reports/2012/Digital-differences.aspx.

14. See 42 CFR 489.24 et seq and 42 CFR 410.2.

15. Chan TC, Killeen JP, Castillo EM, et al. Impact of an Internet-based emergency department appointment system to access primary care at safety net community clinics. Ann Emerg Med. 2009;54(2):279-284.Abstract available at http://www.annemergmed.com/article/S0196-0644(08)01974-4/abstract.