Retrospective Refusal Of Payment Based Upon Final Diagnosis Compromises Patients’ Welfare

My patient was very upset. The 34-year-old mother of two young children had come to the emergency department (ED) with abdominal pain despite her COVID-19 concerns. I had just told her that she had a benign ovarian cyst rather than the life-threatening condition that she had imagined. She was happy with the diagnosis, but she feared that her employer-supplied health insurance would not cover this “non-emergent” diagnosis. How could it be, I thought, that this intelligent woman should be penalized by her insurance company for not diagnosing her own painful condition—a task that I could not accomplish without diagnostic tests?

In 1997, Congress first defined the Prudent Layperson Standard (PLS), requiring health maintenance organizations (HMOs) to cover emergency services for enrolled Medicare and Medicaid patients. They specified that covered services would include evaluation and/or treatment of any medical condition that a prudent layperson, possessing an average knowledge of medicine and health, believes would result in significant harm if he or she failed to seek care. Such conditions include serious pain, conditions that might place the health of the individual (or, concerning a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, or cause serious impairment to bodily functions or serious dysfunction of any bodily organ or part. This legal standard was reaffirmed in the 2010 Patient Protection and Affordable Care Act.

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Who is the “prudent layperson” that this law was designed to protect? It is generally recognized as a sensible and careful person without professional or specialized medical knowledge who acts wisely and judiciously when seeking care. Congress subsequently expanded the protections afforded by the PLS to patients covered by commercial insurance. In doing so, they meant to shield people from profit-oriented insurance companies, ensuring their coverage for emergency medical conditions.

Recently, some insurers, including Anthem Insurance in several states and Blue Cross and Blue Shield of Mississippi, have challenged these protections. With counterintuitive logic seemingly designed to increase profits at their clients’ expense, they agreed to pay only for ED visits when patients’ final diagnosis—not their presenting complaints—met the law’s criteria. This premise is counter to the practice of medicine – in which a history and physical examination suggest a differential diagnosis, and diagnostic tests rule in or out specific conditions. Not only does this harm patients whose bills are retrospectively denied, but also—and perhaps more tragically—may dissuade those with symptoms of severe illness or injury from accessing emergency care in a timely manner.

Laypersons and physicians identify medical emergencies differently. Even health care professionals may be challenged to determine whether an emergent medical condition exists, and the definition of an emergency varies among specialties. The prudent layperson standard is designed to protect patients in this realm of uncertainty.

To be clear, the American College of Emergency Physicians asserts that refusing to honor commitments to provide health care coverage under the prudent layperson standard is not only bad policy and illegal, but it is clearly unethical. Besides being potentially harmful, it penalizes patients who, in good faith, go to EDs expecting to use their health insurance for what they believe is a threat to their health and well-being. While some may counter that using the discharge diagnosis rather than the presenting complaint does not explicitly limit care, stop patients from going to the ED, or tell doctors what tests or treatments they can order, it implicitly does all these things. Allowing patients to believe that their insurance will not cover some or all necessary interventions undermines respect for patient judgment to achieve a corporate benefit. This is nothing short of fear-mongering; using such an arbitrary post-hoc analysis disrespects patients’ autonomy and deviates wildly from established professional, ethical, and societal values.

ACEP is working to protect patients and uphold the prudent layperson standard. And there is some good news. Along with the Medical Association of Georgia, ACEP filed suit in federal court in 2018 to halt Anthem’s new policy in Georgia. The District Court initially dismissed it for the Northern District of Georgia. However, recently, the U.S. Appeals Court for the 11th Circuit overturned the lower court’s dismissal, allowing the suit to proceed. They specifically note that using a trained physician’s assessment to retrospectively determine if a visit is an emergency is irrelevant. “The prudent layperson standards ask what someone with ‘average knowledge of health and medicine’ would think is an emergency based on the severity of ‘acute symptoms.’”

The practice of retrospective refusal of payment based upon final diagnosis compromises patients’ welfare and their fair access to care and denies emergency physicians the opportunity to provide professionally to their patients. It behooves patient-care advocates, clinicians, health care and insurance oversight bodies, and the political system to eliminate this tragic and unnecessary roadblock to seeking health care in an already complicated, expensive, and stressful medical system that is now in a pandemic crisis.

David Hoke is an emergency physician.

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