Why Freestanding ERs love EMTALA

As we have previously discussed, EMTALA applies only to "participating hospitals" -- i.e., to hospitals which have entered into "provider agreements" under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of that program.

Most freestanding ERs do not participate in the Medicare program, so we are not bound by the onerous restrictions of EMTALA. Hospitals, on the other hand, are not so fortunate.

A seldom-mentioned clause of the EMTALA law states that:

A participating hospital that has specialized capabilities or facilities (including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers) may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. 42 CFR 489.24(f)]

The receiving hospital will be obligated to accept the transfer in most cases, so long as it has the ability to treat the patient and its capabilities exceed those of the referring hospital.

Every hospital's capabilities exceed those of the typical freestanding ER (at least with regards to the presence of inpatient beds), so they cannot refuse to accept a transfer from us unless they want to risk a $50,000 EMTALA violation and revocation of their Medicare provider agreement (the "death penalty").

So even if we are required to provide medical screening examinations and (perhaps) stabilization of uninsured patients with emergencies, we can still transfer these money-losers to the hospital of our choice with the federal government backing us up.

That's a nice hospital you've got there. It'd be a shame if anything happened to it.

I believe the clause requiring Texas freestanding ERs to provide medical screening examinations is not only poorly written but unconstitutional, so I expect it to be expunged. I'll explain why in my next post.

The Texas Freestanding ER Act

Last week Governor Rick Perry signed C.S.H.B. (Committee Substitute House Bill) No. 1357 which regulates and defines freestanding emergency facilities.

A "freestanding emergency medical care facility" means a facility, structurally separate and distinct from a hospital and not affiliated with a hospital licensed under Chapter 241, that receives an individual and provides medical treatment or stabilization to the individual in an emergency or for a condition that requires immediate medical care.

C.S.H.B. 1357 establishes procedures for license application, issuance, denial, suspension, probation, and revocation. The bill provides for the emergency suspension of a license and injunction for a violation of licensing requirements. The bill provides for facility inspection, fees, and the freestanding emergency medical care facility licensing fund.

The bill prohibits the minimum operating hours of such a licensed facility from being less than 7 days each week and 12 hours each day. There will be separate licensing for 12 hour and 24 hour facilities, perhaps opening the door to insurers to pay the 12 hour facilities less. Facilities open less than 24 hours per day will not be able to use the word "emergency" in their advertising, but that restriction will not be enforced for 2 years.

C.S.H.B. 1357 requires a facility "to provide to each facility patient, without regard to the individual's ability to pay, an appropriate medical screening examination within the facility's capability, including ancillary services routinely available to the facility, to determine whether an emergency medical condition exists." The bill does not specify that these patients must be stabilized as with the EMTALA law, and since these facilities are not required to follow EMTALA anyway, perhaps a medical screening exam followed by a 911 call would suffice for uninsured patients. That remains to be seen.

Perhaps the most important section deals with insurance reimbursement. The bill requires insurers to provide coverage and reimbursement for services originating in a freestanding emergency medical care facility. Formerly, some insurers would refuse to pay the facility fee for emergency care not obtained in a "hospital's" emergency department. Not anymore.

C.S.H.B. 1357 requires a freestanding emergency medical care facility to obtain a license not later than September 1, 2010.

Drive Through Vicodin Clinic

My new ER has a little window on the side like the drive through at a McDonald's, and I was joking with my friend today that I could use it as a drive through vicodin clinic. Then I saw that Dr. Whitecoat linked to this article about a Stanford University experiment which pilots the concept of drive through triage.

That caused me to erect a capitalist tent of sorts, as I pondered that one could easily make a fortune with such an enterprise. I can already bill a 99283 ER visit and a level 1 facility fee without ever touching the smelly patients, now they don't even have to come in the door!

Procedure Code: CPT 99283 – Emergency department visit for the evaluation and management of a patient, which requires these three key components: an expanded problem focused history, an expanded problem focused examination, and medical decision making of moderate complexity. Usually, the presenting problem(s) are of moderate severity.

According to ACEP guidelines, any medical condition requiring prescription drug management supports a 99283 charge. So by definition, if I determine that your headache requires a prescription for a couple dozen vicodin and your credit card has enough remaining balance to cover my charges, then it was nice doing business with you. Have a nice day. But how much do I need to document to support the charge?

Honestly, if you're paying cash or credit, it doesn't really matter. I don't take Medicare, so the CMS isn't going to review your chart. But just to be thorough, I can document a level 3 history and physical without you having to unbuckle your seatbelt. Here's how:

Just give your order, I mean your history, to the nurse via our conveniently covered and HIPAA-compliant ordering kiosk behind the building. There will be helpful menus to guide you through your chief complaint and HPI. Just pick one answer from each box to describe your pain (location, description, duration, severity, exacerbating factors, relieving factors). When you pull up to the window, the nurse will visually inspect you for signs of distress and place a small device on your finger to measure your pulse and blood pressure while your credit card is swiped.

I'll be at the next window, where I will visually inspect you for alertness and lack of distress, a normocephalic and atraumatic head examination, eyes without redness or discharge, normal respiratory effort and lack of retractions, a quick evaluation of your affect and mood, and the briefest of cranial nerve examinations and speech evaluation.

That's all there is to it! In five minutes, you're on your way to the pharmacy with your prescription in hand, and I'm three hundred dollars richer. We both win.

Coming soon to a neighborhood near you.

Obama Reduces Deficit

A recent study found that African-Americans scored higher on standardized tests if they were reminded of President Obama's accomplishments before the test -- narrowing the achievement gap between black and white test takers and suggesting a tangible effect of Obama's presidency.

Make an Appointment in the ER

Here is an e-mail I received from Tyler Kiley, the founder of InQuickER. I am always amazed to see that people really do read our blogs! I have no financial interest in this company, and as usual I am never paid for any content I place on my blog. I post this because I am impressed with their innovative concept and because it refutes some of the false assumptions made on other blogs about this type of service. Adapt or fail, folks.

Hello!

My name is Tyler Kiley, and I'm the CEO and founder of InQuickER. We've maintained a low profile and quiet existence for the past two years, but I see our company has become the talk of the medical town in the past few days. Wow!

There is quite a bit of discussion on some of the nursing blogs about the risk that a service like InQuickER will increase use of the ED for inappropriate conditions. Two years ago when we started this service, I was very concerned about that issue; however, it appears this is not a problem right now. In our follow-up interviews and research with patients, we are finding that InQuickER is not causing patients to go to the ED when they would have otherwise gone to a PCP or an urgent care. We aren't causing patients to use the ER as a source of primary care; rather, much of our current volume comes from patients who would have ordinarily gone to another ED that doesn't offer the InQuickER service. Patients who have decided to go to the ER are willing to drive long distances to use our partner ERs because they would much rather drive 30 minutes than sit in the waiting room for two hours!

We do offer treatment appointments up to 12 hours in advance, but we've found that patients simply don't use this feature; over 96% of our treatment appointments are set less than four hours in advance. I think this is a relatively strong metric indicating that our service is being used by patients who do, indeed, need timely treatment.

I'm surprised that there is so much antagonism toward this service in the last few days; at our pilot hospitals, we have received a very positive response from the nursing staff. For the most part, InQuickER patients are more satisfied, more compliant, less stressed, and better prepared than other ER patients; I think this is partly because they haven't had the negative experience of sitting in the waiting room for hours, wondering when they will be seen by the doctor.

Ultimately, we give the nursing staff more flexibility in the waiting room; nurses have the opportunity to call patients in earlier than their automatically-generated appointment time if warranted, but InQuickER means that the nurses have more information, more control of the flow of incoming patients, and fewer people in the waiting room. Eventually, we would like to work with urgent care centers and open access PCPs as well, but we simply haven't had the right resources and partners to offer those services yet.

Thanks for taking an interest in our service!

Tyler Kiley
Founder and CEO
InQuickER, LLC

What is an ER For?

Evaluating patients for the presence of emergency conditions.

Stabilizing and treating patients if necessary, and making an appropriate disposition.

Reassuring patients if they do not have an emergency medical condition.

Educating them about warning signs that might indicate their condition is becoming an emergency.

Arrogantly dismissing their complaints as trivial wastes of our time.

Video Game Poisoning

If you use a generator to power your X-box after a hurricane, you might get sick. And you might cause Al Gore to have angina.

So use a long extension cord.

Money quote: “We usually have patients arriving in the emergency department with carbon monoxide poisoning because they tried to keep food fresh, run a fan or home air conditioner, but not power electronic gadgets,” Dr. Caroline Fife, a UT associate professor of medicine, said in a news release.

Memorial Day

Thanks to those who gave all to protect our freedoms.

More from Cox and Forkum

Tool Time

A doctor in rural Australia used a handyman's power drill to bore a hole into the skull of a boy with a severe head injury, saving his life.

Nicholas Rossi fell off his bike on Friday in the small Victoria state city of Maryborough, hitting his head on the pavement, his father, Michael, said Wednesday. By the time Rossi got to the hospital, he was slipping in and out of consciousness.

The doctor on duty, Rob Carson, quickly recognized the boy was experiencing potentially fatal bleeding on the brain and knew he had only minutes to make a hole in the boy's skull to relieve the pressure.

But the small hospital was not equipped with neurological drills — so Carson sent for a household drill from the maintenance room.

Carson called a neurosurgeon in the state capital of Melbourne for help, who talked Carson through the procedure — which he had never before attempted — by telling him where to aim the drill and how deep to go.

What is an ER?

ERP and I had a discussion yesterday that raised some interesting questions which I believe warrant further consideration. His post was about the frustration with the unpaid mandate of EMTALA and the related lawsuit by some California physicians seeking increased reimbursement for their treatment of Medicaid patients.

He complained that since ER docs are legally required to see these patients, it isn't fair that we aren't reimbursed adequately for our services. I reminded him that a new model of emergency medicine is emerging, the freestanding ERs, some of which do not accept Medicare or Medicaid and therefore are not legally required to follow EMTALA. His position is that such facilities are not really ERs at all, that it is our duty as emergency physicians to see every patient that presents for care whether they have the inclination or ability to pay us or not, and if we do not treat all comers then we are not practicing Emergency Medicine.

Perhaps he is right, but one could make the same moral argument for all physicians regardless of specialty. Shouldn't all physicians have the quality of beneficence? Yet only emergency physicians and those specialists taking ER call for a Medicare-participating facility are legally required to provide unreimbursed care. When we try to define the essence of the practice of Emergency Medicine, are we talking about the legal requirement or a moral requirement?

The legal requirement is undefined. A facility may provide emergency medical services without being open 24 hours a day or 7 days a week. There is no legal requirement that an ER must be physically attached to a hospital, affiliated with a hospital, certified by JCAHO, or even staffed by trained or experienced emergency physicians. Board certification is certainly not required, whether in EM or by any other specialty. And, perhaps most importantly, there is no legal requirement (yet) that any ER, physician, or medical facility accept Medicare or Medicaid.

Some rural ERs are reportedly staffed by a single unsupervised physician assistant, according to one of my commenters. Others are not supported by adequate hospital facilities to manage complex injuries or illnesses, so the sickest or most injured patients must be transferred elsewhere. Most hospital-based ERs without comprehensive specialty backup must at least occasionally transfer neurosurgical injuries, ophthalmic injuries, penetrating trauma, pediatric cases, or a variety of other conditions based upon the expertise of their medical staff or the whims of their call schedule. Others must transfer patients when there are no available inpatient beds. Is such a facility more of a "real ER" than a for-profit freestanding ER with similar staff, more sophisticated equipment, and superior specialty backup? Of course not.

What of the case of the University of Chicago ER, who technically followed EMTALA when they medically screened, stabilized, and discharged the boy whose lip was bitten off by a pit bull? They certainly met the legal definition of an ER that night. In some cases, EMTALA causes us to provide worse care than if that law didn't exist. When an ER whose hospital has no trauma surgeon on staff receives a walk-in patient with a gun shot wound, they often waste precious time "stabilizing" the patient and trying to find an appropriate accepting hospital when the patient might be better served by simply calling 911 from the lobby and sending him immediately to the nearest trauma center. When a patient who has been sexually assaulted presents to an emergency facility without the properly trained staff to collect forensic evidence, she doesn't need to wait 2 hours for a receiving hospital to send the transfer paperwork, she needs to be directed to the proper facility without causing her any more discomfort and delay than necessary.

Following natural disasters, I've worked in emergency departments (yes, pleural) without power, using a headlight to find my way down the hallway. We had no X-ray or laboratory facilities whatsoever, so for those weekends we were essentially practicing 19th century emergency medicine. And yet we were still an ER, both by my definition and ERP's, because we turned no patient away. All you really need in an ER is a good doctor, a good nurse, some basic equipment, and good sense. Increased assets make some ERs more capable than others, but the underlying job is still the same: diagnose, stabilize, and make a proper disposition.

I don't think that emergency physicians should be held to a higher moral standard than physicians of any other specialty, and I believe that all physicians who choose not to work for the government should have the right to refuse to treat any patient. Of course we can and will continue to provide charity care, but we will do so because we are compassionate physicians, not because the practice of Emergency Medicine specifically requires it of us. By refusing government subsidies and freeing ourselves from the requirements of EMTALA, we will be empowered to control the frequency and volume of our charity like other citizens.