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Why advertising ED wait times shouldn't be an EMTALA violation

August 29, 2017

    A few months ago, we published a blog post about a Spanish hospital that cut inappropriate ED utilization in half by advertising the wait times at different care sites to sway individuals to seek care at sites other than the ED. The Spanish hospital also follows up with inappropriate utilizers about the potential time saved if they had visited an alternative site of care. 

    Some readers voiced concern that these best practices to inflect avoidable ED utilization may violate the Emergency Medical Treatment and Active Labor Act (EMTALA), making lessons learned difficult to implement in U.S. care settings. So the question remains: Is telling patients "I told you so" about their ED utilization an EMTALA violation?

    To answer that question, we spoke with Douglas Swill, a health law expert at Drinker, Biddle, & Reath LLP, to share his expert perspective on the 30+ year-old law. (Spoiler alert: It's not an EMTALA violation—if done appropriately.)

    When it comes to preventing EMTALA violations, location and timing matter

    EMTALA requires U.S. hospital EDs to provide individuals presenting to a hospital's emergency department with appropriate medical assessment and, if needed, stabilizing treatment—regardless of their ability to pay. EMTALA applies once patients who believe they have an emergency medical condition come onto the hospital grounds seeking care. So, carefully educating patients about the appropriate setting of care—whether that be the ED, urgent care clinic, or a physician office—may occur, so long as it's before patients enter the hospital campus and the communication doesn't deter them from seeking emergency medical treatment.

    For that reason, in the United States neither component of the Spanish hospital's two-pronged approach—advertising the wait times at different care sites and following up with inappropriate utilizers—would violate EMTALA, so long as an organization does not advertise in or around the hospital campus to discourage people with a medical emergency from coming to the ED.

    Education about where and how to seek timely care is legal—and necessary

    Patients are more demanding of health care resources than ever, including appropriate emergent care options. Despite the addition of alternative types of providers, such as urgent care centers and free-standing EDs, hospital EDs will likely continue to experience rising volumes and pressure to reduce avoidable utilization amid increased awareness of services and the mere convenience of the ED. The increase in civil monetary penalties for EMTALA violations presents an additional incentive to address the issue.

    As a result, effective community education and appropriate utilization management—such as increasing access to primary care, educating patients about alternative care sites, and following up after an inappropriate visit—can translate to decreased utilization and major cost savings.

    Equally important, providers must educate staff and improve operations

    Typically, patient complaints are what put possible EMTALA violations on regulators' radar. This means provider organizations must also focus efforts on what directly impacts a patient's visit: staff education and operations.

    While all organizations mandate compliance training, Douglas recommends that hospitals educate ED staff members about their specific role in preventing EMTALA violations—the initial screening and patient stabilization. Similarly, improving ED operations (e.g., timely screening, continuous check-in, and appropriate triage) helps to reduce the risk of delayed treatment, premature departure, or pure patient dissatisfaction. Focusing on staff training and effective operations can help prevent violations.


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    Have more questions about EMTALA? Read our Law Review Q&A with Douglas Swill for more details on the boundaries of when the law applies, how to prevent a violation, and what to do if under review. 

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