Public Policy Alert: Starting tomorrow, “unnecessary” ER visits won’t be covered by Blue Cross Georgia

Health insurance ≠ health care

Just in case anyone still believed that healthcare and health insurance are remotely synonymous, Blue Cross Blue Shield of Georgia is working to clarify that distinction. Beginning on July 1, 2017, those covered by Blue Cross Georgia’s individual policies will fall subject to a new rule. Under this rule, patients who visit the emergency room without a “legitimate fear of an emergency” will receive zero coverage for that emergency room visit. Blue Cross asserted that the rising costs of healthcare necessitated the rule.

‘Prudent Layperson’ standard

Emergency room visits will be covered if the reason for the visit was such that “a prudent layperson, possessing an average knowledge of medicine and health,” would believe it was an emergency.  Under the Affordable Care Act, insurers were required to base their claims decisions upon what a “prudent layperson” would consider to be an emergency, rather than the ultimate diagnosis after they were evaluated and triaged by an ER physician.  But Blue Cross is using the ACA’s patient-protective concept of the “prudent layperson” to effectively discourage those ER visits altogether.  Under the new rule, the patient’s prudence will be evaluated after the claim is submitted for payment — and thus after the ER visit has already been concluded.

As the LA Times reported: “[b]y requiring patients to self-diagnose at the risk of being stuck with a big bill, it may discourage even those with genuine emergencies from seeking necessary care. And it’s asking them to take on a task that often confounds even experienced doctors and nurses.”

One study revealed that 6 of the 10 top reasons for unnecessary ER visits are also in the list of the top 10 symptoms of real emergencies. This included symptoms like back, abdominal, or chest pain, and sore throats or headaches. Researched by Renee Hsia of the Institute for Health Policy Studies at UC San Francisco, the study was published in 2016 in the Journal of the American Medical Association, and it concluded that ER doctors are frequently unable to distinguish emergent and non-urgent medical conditions without examining the patient.  As such, a rule premised upon the patient’s ability to self-diagnose prior to visiting the ER is a highly implausible and cruelly transparent cost-saving measure that will be paid with human lives.

“The problem is that the decision to go to the emergency room is fraught with uncertainty. Most people know that something is wrong and they don’t know if it is really, really wrong or mildly wrong. … Retrospective claims review with denials is too blunt of a tool to deal with a scenario with explicit uncertainty and information gaps.”

— David Anderson, Duke University

Blue Cross is the only ACA exchange insurer in nearly two-thirds of the Georgia’s counties. Dr. Matt Lyon, the president of Georgia’s American College of Emergency Physicians, fears that “[t]his policy threatens the safety of all Georgians.” His statement read: “We treat patients every day with identical symptoms – some get to go home and some go to surgery. There is no way for patients to know which symptoms are life-threatening and which ones are not. Only a full medical work-up can determine that.”

Blue Cross insists that their rule is reasonable and merely seeks to direct patients toward non-ER facilities when possible. The rule does carve out exceptions for children, for patients in areas that lack urgent care clinics, and for visits that occur on Sundays or holidays.  However, in the letter which Blue Cross sent to patients advising them of this new rule, they omitted any mention of these exceptions.

A prudent person’s emergency assessment

I surveyed my friends about the reasons for their visits to the emergency room in recent years, and I received the following feedback:

One friend got hit in the head with a tennis ball during a match with friends. She felt fine but became dizzy that evening and began vomiting… a lot. After an hour of vomiting, she asked her husband to bring her to the ER, where she was scanned and tested in every way conceivable. Her ultimate diagnosis? Benign vertigo.

Another friend visited the ER for excruciating right-sided abdominal pain. She feared appendicitis, having seen identical symptoms present in her mother just months earlier, and drove herself to the ER. After the ER ran bloodwork and did some scans, they detected a large cyst on her right ovary. They provided her with some NSAIDs, and the symptoms abated within a day. Her regular gynecologist conducted monthly ultrasounds for a few months and, based upon her recurrent cysts, switched her birth control method.

Still another friend who gets frequent migraines visited the ER when his regular medication wasn’t working. Light, sound, smell, and movement was making him vomit, and his antiemetics were ineffective. The ER did not conduct any scans and instead administered, via an IV, stronger pain medication, an anti-nausea medication, and fluids. His symptoms were dramatically improved after a 7-hour nap in an ER bed.

None of these visits ended up being life-threatening. And, some of the friends with whom I spoke believed that the ER may have been overkill for their symptoms, but they didn’t know what else to do. All occurred in the evening or early-morning hours, and when they called their physicians’ offices, they received an automated message encouraging them to “call 911 or visit your nearest emergency room” if they were experiencing a life-threatening emergency.  Being medically untrained but otherwise highly-educated laypersons, they each chose to visit the emergency room. What would Blue Cross have done with their claims?

While a Blue Cross spokeswoman, Debbie Diamond, says that “[t]his is not to discourage somebody with an emergency condition who needs to go to an ER to go there,” none of my friends were sure whether their situations constituted “emergency conditions” – even after-the-fact.

What does this mean for providers?

Facilities with emergency rooms are caught between EMTALA, which requires them to treat and stabilize patients experiencing emergencies, and this new Blue Cross rule, which could leave them unpaid if the patient’s insurer deems it to have been a non-emergent issue. The patients themselves will very often be unable to pay the hospital’s bill with no help from their insurer.

Providers may see an uptick in after-hours calls routed through their on-call physician. Patients experiencing uncomfortable or frightening symptoms may seek the provider’s reassurance prior to visiting the ER, fearful that the visit will result in an unpaid bill. This puts providers in a terrible position, given the options of (a) “Go to the ER immediately. I don’t know what is wrong, but it sounds serious.”; (b) “Don’t go to the ER. It just sounds like the stomach flu.”; or (c) “Go to the ER just to be sure everything’s OK, although I think it’s just the stomach flu.” Requiring providers to consider the costs of care when making emergency clinical judgments via phone is an impossible demand.

Patients may become higher consumers of providers’ services during regular office hours, just in case something’s wrong. For example, a patient who experienced nausea throughout the week may visit your office on Friday afternoon “just to be sure” that nothing serious plagues them, and to offset any potentially pricey and “imprudent” visits to the ER that weekend if their symptoms worsen.

Further, this injects significant instability into a patient’s healthcare costs. Where a patient previously knew that an ER visit would cost them, for example, a $500 co-pay, they now risk thousands if they judge a medical emergency wrong. Patients who get stuck with their ER bill will have no money left for preventive care costs, medications, injury treatments, dental care, physical therapy, or similar services. This will, overall, diminish the patient’s health while making them even more unlikely to visit the ER for future concerns.

What next?

Georgia’s state insurance department has promised to monitor Blue Cross’s new ER policy “to make sure that it is not abused to the disadvantage of Georgia policyholders.” Jay Florence, Georgia’s deputy state insurance commissioner, released a statement: “You buy health insurance to make sure you are protected when something bad happens. We are tracking our phone calls and have created a specific code for complaints related to Blue Cross Blue Shield’s new policy.”

This rule also creates significant inequity among Blue Cross’s Georgia customers. Because the rule only applies to those who purchased individual plans from the ACA exchange, patients who are covered by Blue Cross’s group plans will continue to enjoy coverage for all ER visits, regardless of the prudence of their self-diagnosis. A Kaiser Family Foundation report found that about 50% of individuals enrolled in exchange plans were uninsured prior to purchasing their exchange plan, and another 10% were covered by Medicaid or another public benefits program. Another 2011 Kaiser Family Foundation report found that while the median household income of exchange enrollees was 235% of the Federal Poverty Level (FPL), the median income of those covered by employer plans was 423% of the FPL.  Individuals covered by exchange plans also tend to be less educated (77% achieved a high school diploma or less) than those covered by an employer group plan (55% achieved a high school diploma or less); are more racially and ethnically diverse; and more likely to speak a non-English language at home (23%).

Thus, as a whole, those being denied “unnecessary” ER care are poorer than those being approved for care. Further, they are also newer to the healthcare system overall after being unable to afford or receive health insurance prior to the ACA – making them perhaps less qualified than those in group plans to self-diagnose prior to visiting the ER. Indeed, the Kaiser Family Foundation found in 2011 that among new enrollees in exchange plans, 37% hadn’t received a check-up in more than two years, 39% didn’t have a usual source of care, and 29% reported having no interaction with the healthcare system at all.

These inequities are certain to lead to lawsuits. And deaths.

Read more:

Ariel Hart, Blue Cross in Georgia to limit emergency room coverage, The Atlanta Journal-Constitution (May 31, 2017).

Kaiser Family Foundation, A Profile of Health Insurance Exchange Enrollees (March 2011).

Michael Hiltzik, A big health insurer is planning to punish patients for ‘unnecessary’ ER visits, Los Angeles Times (June 2, 2017).

David Anderson, There will be lawyers: Georgia Edition, Balloon Juice (June 1, 2017).

Ariel Hart, Blue Cross customers, it could cost you a fortune for your ER visit starting Saturday, The Atlanta Journal-Constitution (June 29, 2019).

Andy Miller, State agency to monitor Blue Cross rule on ER use, Georgia Health News (June 15, 2017).

Liz Hamel et al, Survey of Non-Group Health Insurance Enrollees, Kaiser Family Foundation (June 19, 2014).

Zaid Jilani, Blue Cross Blue Shield Wants People in Georgia to Self-Diagnose Before Heading to the Emergency Room, The Intercept (June 1, 2017).

Morgan Haefner, BCBS of Georgia to stop covering ED visits it deems unnecessary, Becker’s Hospital Review (May 31, 2017).

About the author

Erin K. Jackson is Jackson LLP’s Managing Partner. She is responsible for all aspects of firm management, is a sought-after speaker for healthcare conferences, and is a published author. She is specifically focused upon the intersection of the patient experience in healthcare with the legal and ethical responsibilities of providers.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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