Dedicated ED issue sparks more debate

Urgent care centers addressed

The question of whether urgent care centers that are not associated with a hospital are covered under provisions of the Emergency Medical Treatment and Labor Act (EMTALA) is receiving renewed attention.

In a recent EMTALA E-Bulletin, Stephen A. Frew, JD, a longtime specialist in EMTALA compliance issues and a web site publisher (, said he had received reports that Southern California urgent care centers are getting conflicting information on whether the law’s reference to "dedicated emergency department" applies to them.

Frew had a simple response to those who are being told that such urgent care centers are covered by EMTALA: "Wrong answer!"

Noting that he was quoting directly from material from a recent Centers for Medicare & Medicaid Services (CMS) EMTALA conference in Denver, Frew said a dedicated emergency department is defined as "any department or facility of the hospital, regardless of whether or not it is located on or off the main hospital campus, that meets at least one of the following requirements:

  1. "It is licensed by the state in which it is located under applicable state law as an emergency room or emergency department.
  2. It is held out 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.
  3. During the calendar year immediately preceding the calendar year in which a determination under this section is being 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.’"

The argument in Southern California, Frew says, has centered around whether urgent care centers meet condition 2 or 3. "CMS says that they probably do not meet No. 2 — which I think is incorrect," he says. "They obviously meet No. 3."

All that doesn’t matter, though, Frew contends, because the entire EMTALA law applies only to hospitals and hospital-owned and operated facilities. "You don’t even get to consider items 1, 2, or 3 until you apply the first set of conditions. Those conditions are that the urgent care center is a department or facility of a hospital.

"Freestanding urgent care [centers] that are not owned and operated as departments or facilities of the hospital are private physician offices and are not covered by EMTALA," he says.

Frew adds that even if state law were to wrap them into the same "EMTALA-like" rules as hospitals, CMS still would not be able to enforce EMTALA against these private urgent cares.

"While CMS conditions of participation allow it to enforce state laws," he continues, "they do not give [CMS] jurisdiction to enforce them against nonhospitals, because the conditions of participation apply to hospitals."

The tough question, he says, is whether CMS would try to stretch its authority and the law to get at private urgent care centers. Frew says that is unlikely.

"[CMS has] enforced EMTALA against hospitals for all sorts of things that some people feel were stretching the bounds of reality — but those were hospitals and hospital departments," he points out. "Given the fact that they backed off of almost all of the other off-site and nonmedical services on campus for EMTALA application, it would be a bizarre stretch of imagination for them to cite a private urgent care center."