ER wait time advertising: posted waits, online check-in and pre-registration under EMTALA

A hospital emergency department that posts its wait time is publishing a number people use to decide where to go when they feel unwell. The same applies to online check-in, “save your spot” pages and online pre-registration forms. Each of these is a marketing tool and an operational one at the same time, and each sits next to a federal law that tells the hospital what it must do when someone arrives: screen them, whatever they can pay.

Two related topics have their own guides and are not repeated here. Freestanding emergency departments, when advertising makes a department an emergency department, surprise billing rules and the basic records behind a wait claim are in our freestanding ER marketing guide. Keeping urgent care distinct from emergency care, urgent care wait times and urgent care listings are in our urgent care marketing guide. This guide covers what a hospital emergency department publishes about waits, check-in and registration. Same-day, walk-in and “no wait” claims by practices and clinics are covered in our guide to availability claims.

What the law asks of the emergency department first

The Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd(a), says that when anyone comes to a hospital emergency department and a request is made for examination or treatment, the hospital must provide an appropriate medical screening examination within the capability of the department to determine whether an emergency medical condition exists. The statute says this applies to any individual, “whether or not eligible for benefits” under Medicare.

Subsection (h) adds the rule closest to marketing: a participating hospital “may not delay” the screening examination, or further examination and treatment, “in order to inquire about the individual’s method of payment or insurance status.” The regulation at 42 CFR 489.24(d)(4)(ii) also bars a hospital from seeking, or directing a person to seek, authorization from their insurer for screening or stabilizing services until after screening has been provided and any stabilizing treatment has begun.

Every wait display, check-in page and registration form should be read against those two lines. A tool that makes a person think they must pay, show a card or be approved before they are seen works against them, however helpful it looks.

Pre-registration and insurance questions

The regulation does allow registration. Under 42 CFR 489.24(d)(4)(iv), a hospital may follow reasonable registration processes, including asking whether a person is insured and what that insurance is, “as long as that inquiry does not delay screening or treatment.” The same paragraph adds that reasonable registration processes “may not unduly discourage individuals from remaining for further evaluation.”

CMS explains this in the interpretive guidelines for that paragraph in Appendix V of the State Operations Manual. Every person who presents and requests a screening examination must receive it, “regardless of the answers the individual may give to the insurance questions asked during the registration process,” and a hospital may not delay screening or treatment while it verifies the information provided. CMS describes registration in the dedicated emergency department as collecting demographic information, insurance information, an emergency contact and other relevant information. Elsewhere in Appendix V, CMS says a hospital may ask for an insurance card so long as doing so does not delay the screening examination.

For an online pre-registration form, that leads to a few plain choices:

• Label the form as optional and say so above the first field, not at the bottom.
• Ask for insurance details only if registration needs them, and never as a condition of being seen.
• Do not ask the person to get approval from their health plan before coming in.
• Put a line at the top that says anyone who comes to the emergency department will be screened, whether or not they finish the form. Have counsel confirm the wording for your hospital.
• Keep the form short enough that someone with symptoms is not tempted to stay home until they can finish it.

If the form collects health information, it is part of your privacy program. Our HIPAA marketing rules guide covers how marketing tools and patient information meet.

Online check-in and “save your spot”

Online check-in for an emergency department is a different promise from an appointment. Appendix V defines triage as the clinical assessment of a person’s signs and symptoms on arrival, in order to prioritize when they will be seen by a physician or other qualified medical personnel. A spot in an online queue does not change that order, and the wording should not suggest it does.

Appendix V also notes that a hospital may be exempted from its screening obligation for a person presenting to the dedicated emergency department who had a previously scheduled appointment. Whether an online check-in counts as anything like that is a question for counsel. In marketing copy, avoid the words “appointment,” “reserved time” and “held spot” for emergency check-in, and avoid any line that implies people who check in online are seen before people who walk in.

Useful wording, where true for your hospital:

• “Online check-in lets us know you are coming. Patients are seen in order of medical need, so your time may change.”
• “If you think you are having a medical emergency, call 911 or come in now. Do not wait at home for a check-in time.”
• “You do not need to check in online to be seen.”

Posted wait times as an advertising claim

A wait time on a billboard, a website, a search ad or an app is an objective claim. The FTC Act makes deceptive acts or practices in commerce unlawful (15 U.S.C. 45) and bars false advertisements likely to induce the purchase of services (15 U.S.C. 52). The FTC Policy Statement on Deception looks at whether a representation or omission is likely to mislead a consumer acting reasonably, and judges the net impression of the ad. The FTC Policy Statement Regarding Advertising Substantiation says objective claims need a reasonable basis before they run.

The freestanding ER guide sets out the records behind a number. For a hospital, the questions that come up are about where the number appears:

• A static billboard or print ad cannot show a live number. If it shows one, it is an average, and the ad has to say what it measures and over what period. A digital billboard fed from the queue should show when it was last updated.
• A search ad headline has no room for that context, so keep wait numbers off ad copy and put them on the landing page, where the label, the time stamp and the triage line fit.
• If a hospital system shows waits for several emergency departments on one page, measure them the same way, or say how each one differs.
• Say what the number is: time to be seen by a clinician, time to a room, or something else. Different measures are different claims.

The Google Ads Misrepresentation policy does not allow inaccurate claims, or claims that entice users with an improbable result as the likely outcome. Its clickbait section does not allow ads that use negative life events, such as illness or accidents, to induce fear and pressure the viewer to take immediate action. “Short wait tonight” and “seen in minutes” lines fail the first test when they are not true, and fear-led copy about symptoms fails the second.

When a wait display could discourage someone

This is where EMTALA and advertising meet. In Appendix V, CMS says that if a screening examination shows an emergency medical condition and the person is told to wait for treatment but leaves, the hospital did not “dump” the person unless, among other things, the person left the emergency department “based on a ‘suggestion’ by the hospital.” CMS adds that a person who leaves against medical advice, or without being seen, of their own free will, with no coercion or suggestion, does not put the hospital in violation.

A wait display that suggests people should go elsewhere is that kind of suggestion, made in public. Lines to keep off a hospital emergency department’s wait page and screens:

• “Long waits tonight. Consider our urgent care instead.”
• “If you can wait until tomorrow, please do.”
• Anything that sorts people by insurance, such as “insured patients may prefer” a different location.

If your system wants to point people with minor problems to urgent care or telehealth, publish that guidance on its own page, describe what each service treats, and put the emergency line first: if you think this is an emergency, call 911 or come to the emergency department. Have counsel and your emergency department leaders review the wording together.

Signs, language and the website

Under 42 CFR 489.20(q), a hospital with an emergency department must post conspicuously a sign specifying people’s rights under the EMTALA section of the Social Security Act, and information on whether it participates in Medicaid. In Appendix V, CMS adds that the wording of the signs must be clear and in simple terms, and in languages understandable by the population the hospital serves. The rule speaks of signs on site, not websites.

A wait page or check-in page can still repeat that message in the same plain words and the same languages. If your hospital serves Spanish speakers, our Spanish language marketing guide covers translation that holds up, and a translated wait page should carry the same label, time stamp and emergency line as the English one.

Illustration: two ways to publish a wait time

Illustration: a hospital website shows a large wait number in green on its home page with no label or time stamp. Under it a button reads “Save your spot,” and the check-in form asks for an insurance card photo before the submit button appears. When the department is busy, a banner says “Long waits. Try our urgent care.” Every element pulls a person toward a choice based on a number they cannot check, a card they may not have, or a suggestion to leave.

Illustration: the same hospital labels the number “Average time to see a clinician over the past [period], updated [time]” and puts a line under it: “Patients are seen in order of medical need. If you think you are having an emergency, call 911 or come in now.” The check-in form says it is optional, asks for a name, phone number and reason for visit, and makes insurance fields optional. Guidance about urgent care sits on a separate page that leads with the 911 line.

Checklist

• Every wait number says what it measures, over what period, and when it was updated.
• A triage line sits next to every wait number: patients are seen in order of medical need.
• The 911 line appears on the wait page, the check-in page and any landing page for emergency care.
• Pre-registration and check-in forms are optional, and insurance fields are never a condition of being seen.
• No copy asks people to get health plan approval before coming in.
• No “appointment,” “reserved time” or “held spot” wording for emergency check-in.
• No wait display or banner suggests people leave or go elsewhere.
• Wait numbers stay off search ad headlines and static ads unless the label and period travel with them.
• Translated pages carry the same labels and emergency line.
• Counsel and emergency department leaders sign off before launch and after any change.

How we help

We build websites, local search, Google Ads and AI front desk tools for independent practices and health businesses. For an emergency department, that means a website whose wait and check-in pages carry clear labels and the emergency line, local search that keeps listings accurate, and intake flows that ask only what registration needs and never put payment questions in front of care. Our tools are built with HIPAA in mind. We confirm in writing what a BAA covers before any patient information flows through a tool, and if it is not covered, we do not route patient information through it. We are not a healthcare provider and we do not give legal or medical advice. We do not sell lead lists and we do not pay for referrals. For the wider rules, see our healthcare marketing rules hub.

Sources

• 42 U.S.C. 1395dd: Examination and treatment for emergency medical conditions and women in labor
• 42 CFR 489.24: Special responsibilities of Medicare hospitals in emergency cases
• 42 CFR 489.20: Basic commitments, paragraph (q)
• CMS State Operations Manual, Appendix V: Interpretive Guidelines, Responsibilities of Medicare Participating Hospitals in Emergency Cases (PDF, Rev. 191, July 19, 2019)
• 15 U.S.C. 45: Unfair methods of competition and unfair or deceptive acts or practices
• 15 U.S.C. 52: Dissemination of false advertisements
• FTC Policy Statement on Deception
• FTC Policy Statement Regarding Advertising Substantiation
• Google Ads policy: Misrepresentation

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