September 23, 2019

Protecting Patients and the Prudent Layperson Standard

For over twenty years the Prudent Layperson standard has protected patients from being subjected to Monday morning quarterbacking by insurers.

Consider some common complaints that patients have:

  • Chest pain after a heavy meal is just indigestion, except when it is a heart attack.
  • A headache with neck pain is just a strained muscle, except when it is a ruptured brain aneurysm.
  • Leg pain is a strained hamstring except when it is a ruptured disk with foot drop.
  • Pelvic pain is just an ovarian cyst, except when it is an ectopic pregnancy.

These are real-life examples of when friends and family reached out to me to ask if they should seek care for their symptoms or just stay at home.  As a board-certified emergency physician, I struggled to help them decide what to do.  I knew that their symptoms were most likely due to common non-emergent diagnoses like indigestion, colds, tension headaches, strained hamstrings, and ovarian cysts – unless they weren’t.  Luckily, I didn’t second guess myself.  I told all of them to go to the ER.

Only after a thorough evaluation by a healthcare professional did my good friend find out he was having a heart attack, my sister in law had a leaking cerebral aneurysm and I had a ruptured disk.

The final diagnosis for all these complaints could have been non-emergent, except they weren’t.  If I, a board-certified emergency physician couldn’t be certain about the implications of the presenting symptoms, how can we expect the public to self-diagnose?  Would my friends and family have followed my advice to go to the ER if they were afraid they would incur a large hospital bill if they turned out not to have an emergency?

Faced with the imprudent practices of managed care in the 1990s, my home state of Maine was one of the first states to pass legislation protecting the rights of patients from anti-consumer practices of health insurance carriers. 32 states would also pass similar Prudent Lay Person (PLP) legislation before it became federal law in the Affordable Care Act of 2010.  At this writing, 48 states have passed similar protections.  Despite this, the PLP standard is under attack.

The Prudent Layperson standard means that a health insurance carrier must provide coverage for emergency services “if a prudent layperson acting reasonably would have believed that an emergency medical condition existed.”  Unfortunately, health insurance carriers are not abiding by the prudent layperson standard, thereby compelling emergency physicians across the country to act through the courts and legislation to enforce the standard. 

About a year ago, Anthem publicly announced that in Georgia, Indiana, Kentucky, Missouri, Georgia, New Hampshire and Ohio they would start using final diagnoses to deny claims for visits they felt were non-emergent.  In Maine, like many states, the PLP statutes were broadly worded, giving insurers room to define for themselves how to determine if a medical condition met the standard.

This spring Maine ACEP and the Maine Medical Association sought to clarify Maine’s articulation of the prudent layperson standard through L.D. 1155, An Act to Protect Patients and the Prudent Layperson Standard.  The bill passed through committee with unanimous support and was enacted into law in June of 2019.

The new law requires that before denying or reducing coverage for a claim for emergency care, commercial and governmental insurers must utilize a board-certified emergency physician licensed in the state of Maine to review the entire pertinent medical record.  It further clarified that insurers cannot require prior authorization for an emergency medical condition regardless of the final diagnosis.

Currently, the ACEP Reimbursement and State Legislative Committees have teamed up with the Emergency Department Practice Management Association to spread the Maine bill as a model for other state legislatures.  Our patients deserve to have the coverage they believe they have when they might need it most.

Jay Mullen MD MBA FACEP
Chair-Elect, Democratic Group Practice Section