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Insurers Test the Limits of Prudent Layperson Standard

Shaw, Gina

doi: 10.1097/01.EEM.0000526855.08010.b2
    prudent layperson, insurance
    prudent layperson, insurance:
    prudent layperson, insurance

    'Save the ER for emergencies—or cover the cost.”

    That was the warning in a letter Blue Cross and Blue Shield sent to its members in Georgia earlier this year.

    “Going to the emergency room (ER) or calling 9-1-1 is always the way to go when it's an emergency. And we've got you covered for those situations,” the letter went on. “But starting July 1, 2017, you'll be responsible for ER costs when it's NOT an emergency. That way, we can all help make sure the ER's available for people who really are having emergencies.”

    Georgia isn't the only state where such policies are being pushed. News reports have described similar announcements being sent out to Anthem Blue Cross and Blue Shield members in Missouri and Kentucky within the past few months, and the American College of Emergency Physicians (ACEP) predicted that it may be rolled out in Indiana and Ohio next.

    This is worrying emergency physicians, who fear that it may cause people covered by these policies to delay care for true emergencies out of fear that they will receive an astronomical bill after the fact. ACEP and its Missouri chapter noted in a joint press release that Anthem had created a list of more than 2,000 symptoms that the insurer considers nonurgent and that will no longer be covered. ( Some of these symptoms, they said, could well be emergencies, including chest pain on breathing, which could suggest a life-threatening pulmonary embolism; acute conjunctivitis, which, if caused by gonorrhea, can cause blindness; and influenza, which can be life-threatening and kills thousands of people annually.

    Representatives of these insurance companies have told the press that their policies are designed to comply with the prudent layperson standard, but Renee Hsia, MD, MSc, a professor of emergency medicine at the University of California, San Francisco, is skeptical. “There is a lot of debate over whether policies like these violate prudent layperson,” she said. The standard, codified in federal law through the Affordable Care Act and in state law in more than 30 states, requires insurance coverage for emergency care to be based on a patient's symptoms, not the final diagnosis.

    Dr. Hsia said insurers may deter people from seeking emergency care with this new policy, contrary to the objective of the layperson standard. “The whole point of the standard is that we are trying to make sure that people aren't afraid of seeking care if they think there's an emergency,” she said. “If you have chest pain, is that a heart attack or just reflux? There's no way for an average person to know if they don't seek medical care. It's a huge burden to place on patients, to diagnose themselves.”

    A Dangerous Policy

    Even well-trained emergency physicians can disagree on a diagnosis, said Jesse Pines, MD, a professor of emergency medicine and health policy and management and the director of the Center for Health Care Innovation and Policy Research at George Washington University.

    “We published a study last year assessing interrater reliability in assessment of ED visit attributes, including severity, immediacy, and ideal setting,” he said. “We had our emergency physician raters look at 300 charts, and they only agreed on the ideal setting about half the time. So if experienced professionals have trouble agreeing based on detailed chart data whether a patient should be treated in the emergency room or not, how do you expect a patient to decide? And if you put up barriers to reimbursement, there may be patients who really need the ED who elect to delay care or not seek care at all.” (Am J Emerg Med 2016;34[7]:1276.)

    New data from Dr. Hsia and her colleague confirmed what most emergency physicians already know: Few emergency department visits are truly avoidable. In an analysis published in the International Journal for Quality in Health Care, Dr. Hsia and Matthew Niedzwiecki, PhD, looked over 110,000 records from the National Hospital Ambulatory Medical Care Survey from 2005 to 2011. They found that only 3.3 percent of ED visits were avoidable, in that they did not require any diagnostic or screening services, procedures, or medications, and the patient was discharged home. (2017 Aug 31

    “From a policy perspective, you can understand the insurance companies' desire to contain costs in ways that don't waste unnecessary societal resources,” Dr. Hsia said. “But even if the intentions are well-meaning, the consequences of a policy like this are potentially dangerous.”

    ACEP has taken a strong public stance against such policies at the state and national levels. “This policy threatens the citizens of Missouri,” said Jonathan Heidt, MD, MHA, the president of ACEP's Missouri chapter, in a statement regarding the Anthem rollout. “If this practice of denying emergency care can happen in our state, it can happen in any state, and we must work both locally and nationally to fight for our patients' rights to have access to emergency care as protected by the prudent layperson standard.”

    But there is little that individual emergency physicians can do to combat such policies. “I think they will ultimately fail. I don't think that ACEP and other physician groups, as well as patient advocacy groups, will stand for it,” Dr. Pines said. “But it will most likely be handled in the court system. This is just the latest incarnation of efforts to limit emergency care. This is a fundamental problem with how our health care system is set up: Payment and delivery in medicine are ultimately at odds with one another. If a patient walks in the door, we have to see them regardless of ability to pay. So if the insurer refuses to pay, the big loser is the patient, who's stuck with a huge bill. A better way would be to align the interests of providers and insurers such that incentives are aligned toward population health. It's difficult to implement population health strategies in the acute, unscheduled care setting in general, outside of systems like Kaiser, but ultimately the only solution is to figure out a system in which the goals of both insurer and provider are population health and prevention.”

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