MAKING CONVENIENT CARE THE RIGHT CARE FOR ALL - Community Catalyst

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MAKING“CONVENIENT CARE”THE RIGHT CAREFOR ALL:Improving State Oversightof Urgent Care Centersand Retail Health ClinicsThis issue brief is a joint product of Community Catalyst and the National Health Law Program.It was prepared by Tess Solomon, MPH; Kelly Jo Popkin, MPH, JD; Amy Chen, JD;Lois Uttley, MPP; and Susannah Baruch, JD

I. INTRODUCTIONA growing number of health care consumersare turning to urgent care centers and retailhealth clinics, which have rapidly proliferatedacross the country in recent years and aresometimes referred to as “convenient care.”Urgent care centers have played a particularlycritical role in meeting the high demand forCOVID-19 testing and are likely to be activelyinvolved in providing COVID 19 vaccines.However, health care advocates andpolicymakers are only now beginning toscrutinize oversight of these clinics andconsider whether they are serving a fairshare of low-income or uninsured consumersand are providing an appropriate array ofservices, including urgent reproductive andsexual health care. This brief draws from asurvey of regulation of urgent care centersand retail health clinics in all 50 states toassess the current state of oversight for theseincreasingly key players in the health caredelivery system.Urgent care centers are walk-in clinicsfocused on minor illnesses or injuries; theytreat conditions similar to those treated inprimary care. Large-scale operators of urgentcare centers include CityMD and GoHealth,which often partner with hospital systems.Reports from across the country show thaturgent care clinics have been inundated bythe demand for coronavirus tests.1 By lateOctober 2020, urgent care centers wereproviding 725,000 tests per week, whichaccounted for 10 percent of total testing inthe U.S. at that time.2Retail health clinics are smaller-scale clinicsthat offer a more limited set of servicesin retail settings such as drug stores andsupermarkets. Major operators of retail clinicsinclude CVS, which operates more than 1,100clinics nationwide, and Walgreens, which1 Daysog, R. (2020, March 13). Walk-in healthcare clinics ‘overwhelmed’ by coronavirus testing requests. Hawaii News Now. ng-requests/; Fuller, C. (2020, November6). COVID-19 spike stretches Urgent Care centers. WLWT. hes-urgent-care-centers/34592215; CBS New York Staff, (2020, November 18).COVID Testing In NYC: New Yorkers Waiting In Long Lines At Urgent Care CentersAcross City. CBSLocal ing-nyc/; News 12 Staff. (2020, November 20). Demand in rapidCOVID-19 testing leads to long lines at urgent care centers. Bronx News ting-leads-tolong-lines-at-urgent-care-centers2 Molla, R. (2020, November 19). Covid-19 is turning urgent care centers into America’s favorite clinics. Vox. nter-covid-19-testing-vaccine-health-careMaking “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics2

Even before increased demanddue to COVID, this segment ofthe health care industry had beengrowing rapidly. However, stateoversight has lagged behind,raising challenges for consumersand advocates.operates more than 400. Their delivery ofCOVID-related care has also been significantand has contributed to the growing reachand popularity of retail health. CVS Healthalone administered 6 million COVID-19 testsbetween March and September 2020. Ofthose seeking tests, 70% were not previouslyCVS Health customers.3Even before increased demand due to COVID,this segment of the health care industry hadbeen growing rapidly. The number of urgentcare centers increased from just under 7,000in 2015 to over 10,000 in 2020.4 The retailhealth clinic sector has grown at an evenfaster rate, from 700 in 2013 to more than2,700 in 2019.5However, state oversight of this segment ofthe health care system has lagged behind,raising challenges for consumers andadvocates. Some patients who visit urgentcare centers or retail health clinics maydiscover too late that their Medicaid coverageor private health insurance is not accepted,and that there is no charity care policy, leavingthem with unexpected medical bills. Othersmay encounter restrictions on reproductiveand sexual health care services at urgent carecenters or retail clinics operated by religiouslyaffiliated health systems. Equitable accessis also a concern, as urgent care centersand retail health clinics may be absent fromlow-income neighborhoods that are alreadymedically underserved, and instead proliferatein middle-class neighborhoods that tend tohave more consumers with private healthinsurance coverage.As visits to primary care providers decreaseand visits to urgent care providers grow,there are increasing concerns about qualityand continuity of care, as well as adequatecoordination between an individual’s primarycare provider and any urgent care centersthat have provided episodic care.6 Improvedgovernment oversight is needed to ensurethat this burgeoning health care sectorprovides care that meets the needs of allhealth consumers, without discrimination orreligious interference.This issue brief provides an overview ofexisting and proposed state regulation of3 Minemyer, P. (2020, November 06). Merlo COVID-19 testing, return to work platform have ‘expanded the universe’ of CVS customers. FierceHealthcare. universe-cvs-customers4 Thakar, S. (2019, February 22). US urgent care centers experience 8% growth. Health Exec: For Leaders of Provider Institutions. -urgent-care-centers-experience-8-growth; Finnegan, J. (2020, February 26). Now more than 9,000urgent care centers in the U.S., industry report says. FierceHealthcare. rt-says5 Gaur, K., Sobhani, M., & Saxon, L. (2019, September 30). Retail Healthcare Update: Disrupting Traditional Care by Focusing on Patient Needs.Journal of MHealth. patient-needs/6 Ganguli, I., Shi, Z., Orav, E. J., Rao, A., Ray, K. N., & Mehrotra, A. (2020). Declining use of primary care among commercially insured adultsin the United States, 2008–2016. Annals of internal medicine, 172(4), 240-247.; Neighmond, P. (2016, March 07). Can’t Get In To See YourDoctor? Many Patients Turn To Urgent Care. NPR. tients-turn-to-urgent-careMaking “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics3

urgent care centers and retail health clinics,with particular attention to the impact of thisgrowing and largely unregulated health caresector on access to basic health care servicesfor vulnerable communities. The brief providesrecommendations for potential developmentof strengthened oversight, as well as specificpolicy options and models. The issue briefis based on the results of a 50-statesurvey conducted for the National HealthLaw Program (included in the Appendix).Summary of Major FindingsMost states do not issue facility licenses forurgent care centers or retail health clinics.Rather, these entities are generally operatedunder either an individual physician’s licenseor, in the case of those affiliated with ahospital, under that hospital’s license, therebyavoiding targeted oversight from statedepartments of health. A few states (Arizona, Illinois, Indiana,Maryland, New Hampshire, South Dakotaand Vermont) have pursued regulationto tackle the central issues of coverage,transparency and the types of servicesoffered at urgent care centers and retailhealth clinics. These regulations couldserve as models for other states. Without state regulation requiring themto serve low-income communities orstate Certificate of Need oversight tohelp ensure equitable distribution of suchfacilities, individuals and families whoare uninsured or who rely on Medicaidcoverage could be unable to access careat urgent care centers and retail clinics. Atotal of 36 states and D.C. have Certificateof Need systems that oversee andapprove many institutional health providertransactions and could potentially be usedto oversee convenient care providers. In the absence of licensing andother regulatory oversight, access toreproductive and sexual health care atthese facilities could be at risk. LargeCatholic health systems are alreadyentering the market and operating bothurgent care centers and retail clinicsthat do not provide basic reproductiveand sexual health care services thatmeet medical standard of care. FacilitiesRobust state oversight is needed toensure that community health needsare met, including meaningful effortsto reduce racial and ethnic healthdisparities and provide convenientaccess to reproductive health servicesthat meet the standard of care.affiliated with Catholic systems wouldalso likely refer patients to their affiliateCatholic hospitals for acute care, whichhave the same deficiencies in access tocomprehensive reproductive and sexualhealth care services.Key Recommendations State licensing requirements andCertificate of Need programs should beupdated to apply to this growing market.Robust state oversight is needed to ensurethat community health needs are met,including meaningful efforts to reduce racialand ethnic health disparities and provideconvenient access to reproductive healthservices that meet the standard of care.Making “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics4

Urgent care centers and retail clinicsshould be required to contract withMedicaid, and given targets forpercentage of service to Medicaid-insuredand uninsured consumers as a conditionof state Certificate of Need approval. States should set up accreditationprocesses to enforce standardizationacross sites, mandate the provision ofbasic health care services and enforcenondiscrimination provisions. States should require care coordinationamong urgent care centers, retail clinics,primary care services and hospitals topromote a strong continuum of care andensure the highest quality of care. Health care and consumer advocatesshould advocate for more equitabledistribution of these facilities in low-incomeneighborhoods, not just middle and upperclass neighborhoods.Making “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics5

II. THE EXISTING STATEREGULATORY LANDSCAPELicensing of Urgent Care Centers andRetail Health ClinicsURGENT CARE CENTERSThe vast majority of states do not issue facilitylicenses for urgent care centers. In the 40states that have chosen not to issue suchfacility-specific licenses, most urgent carecenters are operated under either an individualphysician’s license or a hospital license.Without specific licensing requirements, thesecenters are largely able to evade the scrutinyof state departments of health. Facilitiesoperating under a physician’s license haveoversight by a state medical board onlyinsofar as disciplining any criminal convictions,medical negligence or misbehavior of theindividual physician.7In certain states, urgent care centers thatoperate under a hospital license would besubject to a state department of health’sregulatory purview only as an extension ofthat hospital, and therefore are only subject tolimited review or diminished direct oversight.Without specific licensing requirements forboth hospital-owned and physician-ownedurgent care centers, urgent care centers oftenavoid the targeted scrutiny in the Certificateof Need process that oversees hospitalThe vast majority of states do notissue facility licenses for urgentcare centers. Without specificlicensing requirements, thesecenters are largely able to evadethe scrutiny of state departmentsof health.transactions and the regulatory “check” aCertificate of Need system sets in place.Of the states that do license urgent carecenters, a few have determined that thesefacilities fall within pre-existing licensingcategories, such as under the broad definitionof “clinic” in Florida or the “organizedambulatory-care facility” in Rhode Island.Massachusetts considers providers of urgentcare to be ambulatory care providers whomust be licensed as either a clinic or hospitalsatellite. Other states have establishedlicensing requirements specific to urgent carecenters. For example, Connecticut requiresstate inspection every three years. NewMexico and New York issue different licensesfor urgent care centers depending on certaincharacteristics. For example, in New Mexico,7 Bovbjerg, R., Aliagathe, P & Gittler, J. (2006, February). State Discipline of Physicians: Assessing State Medical Boards through Case Studies(U.S. Department of Health and Human Services Report). Office of Disability, Aging and Long-Term Care Policy, Office of the Assistant Secretaryfor Planning and Evaluation, U.S. Department of Health and Human Services. -case-studiesMaking “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics6

Only a Few States Issue Facility Licenses to Urgent Care Centers 8the Department of Health Program OperationsBureau requires aspiring urgent care centersto submit letters of intent describing thefacility and services to be offered. TheDepartment considers licensing requestson a case-by-case basis for each individualfacility, which might fall under the categoryof “diagnostic and treatment center” or “newor innovative clinic”.9 In New York, largerurgent care centers offering a greater numberof services are considered Diagnostic andTreatment Centers subject to state Certificateof Need and licensing laws.10 Smaller urgentcare centers offering fewer services are morelikely to be considered physician practices,thereby evading licensing requirements.8 This map is based on information from the 50-state survey that appears in the Appendix. The 50-state survey was updated as of February17, 2019. It was prepared by Hooper, Lundy & Bookman, P.C. for the National Health Law Program. It is not intended to serve as legal advicerelated to any individual situation. This material is made available for educational and informational purposes only. Readers in need of legal assistance should retain the services of competent counsel.9 Requirements for Facilities Providing Outpatient Medical Services and Infirmaries, Title 7, Chapter 2 N.M. Admin Code § 1.0002.html10 Public Health and Health Planning Council. (2013). Urgent Care Policy Options – PHHPC Meeting July, 17th 2013. https://www.health.ny.gov/facilities/public health and health planning council/meetings/2013-07-17/docs/2013-07-03 urgent care policy options final.pdfMaking “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics7

Even among states that do require licensingfor urgent care centers, there are exemptionsfrom those requirements that may letphysicians and hospitals circumvent laborintensive state licensing processes. In RhodeIsland, for example, urgent care centersowned and operated by individual physicians,physician groups or hospitals may be carvedout of the “organized ambulatory-care facility”licensing requirement. Massachusetts alsoprovides exemptions for urgent care centersoperated by solo and group practices.Some states allow for large-scale hospitalsand health systems to avoid urgent carecenter licensing requirements and theregulatory safeguards that they impose onphysicians for the protection of consumers.For example, Florida exempts from licensingthose entities that are owned by corporationswith at least 250 million in annual sales andoperated by a Florida-licensed health carepractitioner, as well as those entities thatemploy 50 or more MDs or DOs who billunder a single tax ID number. Similarly, inspite of its case-by-case licensing processfor urgent care centers, New Mexico hasallowed many of these facilities to operate asextensions of hospital licenses.RETAIL HEALTH CLINICSRetail health clinics are similarly underregulated, with 45 states not issuing any formof licensing for these facilities. In Arizona,Florida, New Hampshire and Rhode Island,retail clinics are licensed under the samecategory as urgent care centers.In some cases, retail health clinics are notlicensed but are bound by state regulations.Massachusetts has created a unique set ofregulations for retail clinics, known as “limitedservice clinics,” but does not apply theseregulations to urgent care centers, whichare licensed as clinics or hospital satellites.The “limited service clinic” regulationsexpressly limit retail clinics from referringpatients to non-primary care providers or fromserving as a patient’s primary care provider.They also limit the clinics to providing aspecific set of services.A few states with stringent “corporate practiceof medicine” laws also place some regulatoryrequirements on urgent care centers andretail clinics even though state departmentsof health have chosen not to explicitlylicense or regulate them. In Tennessee, retailclinics must be established as a medicalcorporation owned by a specific physician.In West Virginia, a certificate of authorizationfrom the Board of Medicine is required topractice medicine through a corporation,professional corporation or professionallimited liability company. If a corporation runsan urgent care center or retail health clinic, itwould be required to obtain this certificate toensure that the medical practice is separatefrom the non-medical ownership.Making “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics8

III. IMPACT ON PATIENTS OF LACKOF REGULATIONService to Uninsured and Medicaidinsured PatientsUrgent care centers and retail clinics offerhealth care without an appointment, and oftenprovide extended hours to accommodatebusy schedules. This convenience factor canbe particularly helpful for hourly shift workersand employees without paid time off, whomay be better able to access care in thePhysician-owned urgent carecenters or retail health clinicsoperating within pharmaciesare allowed to turn away sickpatients solely on the basis of theirinsurance status.evenings or on weekends. Such facilitiescould be tremendously helpful for uninsuredindividuals and Medicaid enrollees, who couldaccess basic primary care services at timesthat fit into busy work schedules.11However, without regulatory pressure, urgentcare clinics are less likely to accept Medicaidpatients, whose care is typically reimbursedat lower rates than that provided by privateinsurers.12 In 2019, a national urgent carelobbying group estimated that 30-40 percentof urgent care centers refuse to treat Medicaidpatients.13 Furthermore, the treatmentobligations of the Emergency MedicalTreatment And Labor Act—which requiresanyone coming to an emergency departmentto be stabilized and treated, regardless oftheir insurance status or ability to pay—do notapply unless an urgent care center is ownedby a hospital. As a result, physician-ownedurgent care centers or retail health clinicsoperating within pharmacies are allowed toturn away sick patients solely on the basis oftheir insurance status.In 2013, a study conducted by the NewYork State Commissioner of Health on theprovision of services at urgent care centersand retail clinics operating within pharmaciesfound that “urgent care providers are notsubject to the Emergency Medical Treatmentand Labor Act (EMTALA). Consequently,urgent care providers are not required toaccept patients without regard for the abilityto pay, and it is unclear how many urgentcare providers accept Medicaid. This barriercould limit could the potential for use of urgent11 Godman, H. (2016, January 15). Retail health clinics: The pros and cons. Harvard Health Blog. linics-the-pros-and-cons-20160115897912 Takach, M., & Witgert, K. (2009). Analysis of State Regulations and Policies Governing the Operation and Licensure of Retail Clinics. NationalAcademy for State Health Policy, 29.13 Kowalczyk, L., McCluskey, P. D., (2019, January 12). Urgent care centers proliferate in Mass., but fewer low-income patients have access—TheBoston Globe. BostonGlobe.Com. ry.htmlMaking “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics9

care centers to reducie avoidable emergencydepartment visits and health care spendingin the Medicaid population.”14 Uninsuredor Medicaid patients might seek care at anurgent care center instead of an emergencyroom, not knowing that the facility has nolegal obligation to stabilize any patient whowalks through the door. A patient in anemergency situation could be turned away.In addition to quality-related clinical decisions,business interests also shape where urgentcare centers and retail clinics are locatedrather than community need. These facilitiestend not to be located in low-incomecommunities, but rather are concentrated incommunities of privately insured patients.15In New York for example, only 33 of the 366urgent care centers operating in the state in2015 were located in medically underservedareas.16 Similarly, in Massachusetts,an analysis by the state’s Health PolicyCommission in 2019 found that 58 percentof urgent care centers and 72 percent ofretail clinics were located in ZIP codes whereresidents earn above the median income.17This uneven distribution is likely to exacerbatehealth inequities and further compoundbarriers to access.[Urgent care centers and retailclinics] tend not to be locatedin low-income communities,but rather are concentrated incommunities of privately insuredpatients.Provision of Sexual, Reproductiveand LGBTQ-inclusive CareWithout the regulatory check of licensing inplace, hospital and health systems operatingurgent care centers or retail clinics couldchoose not to provide reproductive andsexual health care services that meet thestandard of care, or could have policies thatserve discriminate against LGBTQ patientsand families. Religiously-based servicerestrictions could result in people beingunable to obtain birth control, emergencycontraception, STD testing, PrEP or otherbasic reproductive and sexual health servicesin their local urgent care center or retail clinic.Facilities operated by Catholic health systemsmay also follow policies that that prohibitdelivery of LGBTQ -affirming care.14 New York State Department of Health. (2017). Health Care Delivery Models in New York State: A Study of Retail Clinics, Urgent Care Providersand Major Physician Practices. h care delivery studies.pdf15 Le, S. T., & Hsia, R. Y. (2016). Community characteristics associated with where urgent care centers are located:a cross-sectional analysis. BMJ open, 6(4), e010663. https://pubmed.ncbi.nlm.nih.gov/27056591/16 Ji Eun Chang, MS, Suzanne C. Brundage, SM, Gregory C. Burke, MPA, & Dave A. Chokshi, MD, MSc. (2015). Convenient Care: Retail Clinicsand Urgent Care Centers in New York State. United Hospital Fund. rt.pdf17 Massachusetts Health Policy Commission. (2018). HPC DataPoints, Issue 8: Urgent Care Centers and Retail Clinics Mass.gov. g “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics10

The failure of Hy-vee grocery stores in Iowaand Nebraska to provide reproductivehealth care provides a key example of howa robust licensing process is critical. BothIowa and Nebraska have critical coveragegaps in contraceptive services as a resultof anti-choice legislation that excludedPlanned Parenthood and other entities thatalso provide abortion, from receiving TitleX funding. As a result, over 170,000 lowincome individuals in Iowa and over 108,000low-income individuals in Nebraska live incounties where there is not reasonable accessto a health center offering the full range ofcontraceptive methods.18The retail clinics located within Hy-veegrocery stores in these states have a uniqueopportunity to fill this gap in the market byproviding direct pay, low-cost birth controlpills and other forms of contraception,without the need for appointments, and ina convenient location. However, becauseof the religious affiliation of Catholic HealthInitiatives, the large-scale Catholic hospitalsystem that owns and operates the Hy-veeclinics, reproductive and sexual health care isnot offered at these retail clinics.19 20 Hy-veestores in Nebraska also house clinics ownedand operated by Catholic Health Initiatives(which is now part of CommonSpirit Health,the nation’s largest Catholic health system).21In Utah, urgent care centers arespecifically exempt from having toprovide emergency contraceptionto survivors of sexual assault.Without clear standards for services thatshould be provided at urgent care centers orretail clinics, patients have no way of knowingwhich reproductive and sexual health servicesthese clinics will or will not provide, and atwhat cost. For the most part, states havenot pushed clinics towards providing greatertransparency for consumers. This has ledto some egregious outcomes. For example,in Utah, urgent care centers are specificallyexempt from having to provide emergencycontraception to survivors of sexual assault.This is permitted so long as the urgent carecenter provides the sexual assault survivorwith a nearby hospital address, along with oraland written information regarding emergencycontraception.22 Should states requirelicensed retail clinics to provide contraception,in addition to other limited health services,these clinics could become importantresources for people in urgent need of birthcontrol or emergency contraception.2318 Power to Decide (2019, April). Birth Control Access 2020. Power to Decide control-access19 Leys, T. (2017, July 10). Clinics that limit birth control are listed as providers in new state family planning plan. Des Moines 128001/20 MercyOne (n.d.). Urgent Care Services. Mercy One. or-specialty/urgent-care21 CHI Health (n.d.). Initiatives: Quick Care. CHI Health. tml22 Emergency contraception services for a victim of sexual assault. Utah Code Ann. § 26-21b-201 (2010) b-S201.html?v C26-21b-S201 180001011800010123 Emergency contraception services for a victim of sexual assault.Utah Code Ann. § 26-21b-201 (2010) b-S201.html?v C26-21b-S201 1800010118000101Making “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics11

Comparison of Catholic vs Non-Catholic Urgent Care centers in Provision of Reproductive Health ServicesEXISTING CONVENIENT CARE CLINICSIN CATHOLIC HEALTH SYSTEMSMost Catholic hospitals operate under theEthical and Religious Directives (ERDs), whichprohibit the provision of key reproductivehealth services, including contraception,sterilization, abortion, and infertility services.Catholic health systems have been known todeny some LGBTQ -inclusive care, such asgender-affirming surgeries.Four out of the 10 largest health systemscurrently in the United States are Catholicentities. These giant systems are activelyexpanding into this market. Already,CommonSpirit Health, the largest Catholicsystem, operates 115 urgent care clinics,Ascension operates 96, Trinity operates 59,and Providence St Joseph operates 72.Among these four Catholic health systemsalone, there are 342 urgent care centersthat are likely to be subject to the ERDsand therefore restricting access to basicreproductive and sexual health care. Majoroperators of retail clinics have also partneredwith large Catholic health systems to delivercare. Existing partnerships include KrogerHealth’s partnership with Ascension andWalgreens’ partnership with ProvidenceSt Joseph Health.In 2016, Community Catalyst and NHeLPconducted a secret shopper study toinvestigate how religious restrictionsimpact services at urgent care centersthat are owned or managed by Catholichealth systems. A total of 38 urgent carecenters were included across Californiaand New York: 18 Catholic-affiliated and20 non-Catholic, non-religious centers. Theinvestigation found that Catholic urgent carecenters were frequently unable to providebirth control refills, assist patients havingproblems with their IUDs, or help patients withwhat appeared to be early miscarriage signs.In contrast, non-Catholic affiliated urgent carecenters frequently provided these services.Making “Convenient Care” the Right Care for All: Improving State Oversight of Urgent Care Centers and Retail Health Clinics12 p

mproving State versight of Urgent Care Centers and Retail Health Clinics. 6. Licensing of Urgent Care Centers and Retail Health Clinics. URGENT CARE CENTERS. The vast majority of states do not issue facility licenses for urgent care centers. In the 40 states that have chosen not to issue such facility-specific licenses, most urgent care

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