Patients Shouldn’t Practice Medicine Without a License: Anthem and the Prudent Layperson Standard

Hospitals must perform medical screening evaluations to patients presenting at emergency departments.

Anthem Blue Cross Blue Shield, the nation’s largest health insurer, instituted a policy last year of not paying for emergency department care if they retrospectively determined the visit was non-emergent.

It started in Georgia, Missouri, and Kentucky, and has spread to New Hampshire, Indiana, and my state of residence, Ohio. One can imagine they will roll this out to the rest of the country if they can get away with it.

In order to understand the implication of Anthem’s new policy, you need to understand the history.

The Emergency Medical Treatment and Labor Act (EMTALA) was enacted in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, known as COBRA. EMTALA essentially mandates that anyone coming to an emergency department must have an assessment performed and needs to be stabilized, regardless of ability to pay. It is also known as the “anti-dumping law” and is intended to prevent charity cases from being sent away from hospitals.

Again, if a patient presents to an emergency department, the hospital must perform a medical screening evaluation to determine if an emergency medical condition exists. If so, the patient must be treated, or ideally, stabilized, prior to transfer to an appropriate facility. Hospitals with specialized capabilities are obligated to receive transfers from facilities unequipped to handle unstable emergency medical conditions. Hospitals are also subject to mandatory reporting for recognized violations.

Insurers, especially capitated HMO-types, began requiring patients to get pre-authorization, and were retroactively denying payment if the final diagnosis turned out to be non-emergent, according to the payer. The patients and the hospitals were getting shafted.

As a result, the “prudent layperson” definition was added in 1994 as a revision to EMTALA, and it became standard for Medicaid in 1997, for Medicare in 1998, and for the Veterans Affairs (VA) system in 1999. The prudent layperson standard is also codified in the Patient Protection and Affordable Care Act of 2010.

The “prudent layperson” definition of an emergency medical condition is any medical or behavioral condition of recent onset and severity, not limited to severe pain, that would lead a typical person possessing an average knowledge of medicine and health to believe that his or her condition, sickness, or injury is of such a nature that failure to obtain immediate medical care could jeopardize life, limb, or mental health. The presenting sign or symptom is paramount, not the final diagnosis, when determining whether to pay emergency medical claims.

Apparently, we’ve traveled back in time, because last year Anthem rolled back the standard for its non-Medicaid/Medicare policyholders, allowing the insurer to decline emergency department visit claims they deem non-emergent. If they feel the patient could have been served in an urgent care setting instead, they deny the bill. There are exemptions, including healthcare provider referral to ED, inability to access urgent care due to geography or time, receipt of IV fluids or IV medications, or undergoing a MRI or CT scan.

Online, I have read accounts of vehicle-pedestrian strikes and severe abdominal pain with fever that turned out to be ovarian cysts that were denied. We’ve had articles in our local newspaper about patients who have gotten retroactive denials from Anthem and are now reluctant to seek medical attention in the future. U.S. Sen. Claire McCaskill (D-Mo.) has become involved in trying to advocate for her constituents.

I remember years ago, there was a big push for emergency departments to open fast-track or urgent care areas for lower-acuity patients to try to reduce length of stay in the ED and improve patient and staff satisfaction. In accordance with EMTALA, there is a quick screening exam to ensure that the patient is safe to go to the fast-track area. I support control of medical expenditures, and if it can be determined that a patient does not need the highest level of care, I support his or her going to an urgent care center.

However, this new (old) policy is just plain wrong. We talked about pro basketball star Kevin Love and his panic attacks last week on Talk Ten Tuesdays. If you have chest pain and shortness of breath, it is imperative to seek medical attention. The final diagnosis should not be the determinant of coverage. It is not reasonable to expect a layperson to know.

In the ED, our philosophy is to rule out life threats. If a patient has signs and symptoms that could be indicative of serious pathology, we need to make sure that isn’t the case before we anchor on a non-life-threatening diagnosis. You don’t want to send some woman home with an erroneous diagnosis of indigestion to have her die of an acute myocardial infarction (MI) because you were banking on her having the most pedestrian “horse” of a condition (“If you hear hoofbeats, think horses, not zebras”). Patients may have a bias towards downgrading their symptoms; a patient might dismiss her symptoms and die of her MI at home if she is afraid of the insurer not covering her ED visit. It is not in a patient’s best interests to practice medicine by Google.

Is this going to backfire on Anthem? Are folks going to get sicker or die because they are hesitant to seek medical attention? Might be a pretty big lawsuit. Are providers going to start initiating IV fluids or giving parenteral meds, or order CT scans more liberally, to justify payment? This would be a disservice, too, because all treatments and studies have side effects, and could be problematic if not medically necessary.

It is not acceptable to shift costs or responsibility for making medical diagnoses to the patient. Patients should be allowed to be patients, emergency providers should provide excellent medical care to everyone regardless of ability to pay, and insurers should reimburse healthcare providers and facilities for taking care of patients.


Erica E. Remer, MD, CCDS

Erica Remer, MD, FACEP, CCDS, has a unique perspective as a practicing emergency physician for 25 years, with extensive coding, CDI, and ICD-10 expertise. As physician advisor for University Hospitals Health System in Cleveland, Ohio for four years, she trained 2,700 providers in ICD-10, closed hundreds of queries, fought numerous DRG clinical determination and medical necessity denials, and educated CDI specialists and healthcare providers with engaging, case-based presentations. She transitioned to independent consulting in July 2016. Dr. Remer is a member of the ICD10monitor editorial board and is the co-host on the popular Talk Ten Tuesdays weekly, live Internet radio broadcasts.

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