Freestanding Emergency Departments: Growing in Numbers and Regulation

By: Daniel L. Freidlin and Brian S. Osterman
Friday, November 6, 2015

Freestanding Emergency Departments (FEDs) represent a fast-growing segment of health care. One study demonstrated a 65 percent increase in their numbers nationwide over a five-year period.1 FEDs continue to proliferate as traditional emergency departments become overcrowded due to increasing demands posed by the needs of an aging population.

The American College of Emergency Physicians (ACEP) describes a FED as a structurally separate facility that is distinct from a hospital and provides emergency care. FEDs are equipped comparably to traditional hospital emergency departments, which allows for the evaluation and treatment of a wide range of medical ailments. ACEP believes that FEDs should provide around-the-clock urgent care delivered by adequately trained emergency medicine providers and nursing personnel. Although FEDs are well suited to treat a wide array of medical problems, these stand-alone centers may not be capable of treating the most acute or traumatic conditions. The ACEP has suggested that FEDs have an agreement in place with nearby facilities to transfer patients when a higher level of care is indicated. The individual capabilities of the outpatient center will dictate the number and types of patients to be transferred, but what care must be rendered prior to transfer may not only be governed by the standard of care,2 but also by federal and state regulations.

As the expansion of FEDs continues, further regulation by federal and local governments is expected. One area of concern is whether the Emergency Medical Treatment and Active Labor Act (EMTALA) will be applied to patient transfers. EMTALA, sometimes referred to as the “patient anti-dumping law,” governs when and whether patients may be transferred or discharged from an emergency department. Enacted to prevent hospitals from refusing to treat patients who do not have medical insurance and are unable to pay for the care rendered, EMTALA requires that any participating hospital emergency department provide “an appropriate medical screening examination” for all patients to determine the presence of an “emergency medical condition.”3 Such a patient must be stabilized prior to transfer or discharge.

Currently, whether a FED is governed by EMTALA hinges on whether it is recognized as an emergency department. Facilities owned and operated by local hospital medical centers, sometimes referred to as hospital outpatient departments, must comply with federal laws such as EMTALA. However, independently owned FEDs are typically not recognized by federal law as emergency departments, and although they must still comply with state regulations, EMTALA does not apply. Additionally, ACEP has recommended that all FEDs comply with the intent of EMTALA and provide every patient with an appropriate screening examination to determine whether emergency care is indicated prior to transfer or discharge.4

Outpatient emergency care is growing rapidly, and the interplay between these facilities and local hospitals — and health care as a whole — will evolve over time. Expanding federal and state regulation may accompany this growth. Healthcare providers practicing at and operating FEDs should not only ensure that their patients are stable prior to discharge or transfer, but also that they are compliant with both federal and state laws.

Daniel Freidlin And Brian OstermanDaniel L. Freidlin is a Partner at Martin Clearwater & Bell LLP. He focuses his practice on the defense of medical malpractice and professional liability cases. Brian S. Osterman is an Associate at Martin Clearwater & Bell LLP. His practice encompasses all aspects of medical malpractice defense.