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Resources to Combat Medicaid Efforts that Inappropriately Define and Limit Non-Emergency Use of the ED

In an effort to save money and curb "non-emergency" use of the emergency department, some cash-strapped state Medicaid programs have considered or enacted intiatives that could significantly impede patient access to emergency care, potentially put patients at higher risk, and eliminate or reduce payment for the provision of some EMTALA-mandated services. In some instances, these efforts have included the creation and use of pre-determined lists of hundreds of diagnoses deemed to be "non-emergencies." Use of such lists would appear to run afoul of the prudent layperson standard and its requirement that coverage decisions be based on presenting symptoms rather than final diagnoses. Forty-seven states and the federal government have adopted the prudent layperson standard to protect patients covered by private insurance, Medicare and, according to the Balanced Budget Act of 1997, Medicaid managed care programs.

Below are a few model approaches chapters may want to consider to avert implementation of state policies that would deny or reduce payment for care of Medicaid patients based on final diagnosis. Also below are additional resources that were deployed to support the Washington State initiative and could be modified and/or utilized to assist other chapters engaging in advocacy efforts on this issue.

 

The Washington State Model

In 2011-2012, Washington State was the most aggressive state Medicaid program in the nation to pursue such an initiative. The Washington ACEP chapter took a lead role in trying to combat this effort, working with national ACEP, the Washington State Medical Association, the Washington State Hospital Association and other organizations. Through direct interaction with Medicaid officials, legislative advocacy, legal activities, and media outreach, the chapter and its allies waged an intense campaign to halt this ill-conceived policy. In late March 2012, just two days before the new policy to deny payment was scheduled to be put into place, the governor blocked its implementation as the legislature prepared to pass a budget provision that supported an alternative plan, developed by WA-ACEP and its allies. The alternative plan calls for implementation of a series of best practices to help address ED utilization issues without denying coverage for visits and in compliance with the prudent layperson standard. Chapters may want to consider the alternative plan as a potential model in their states. Click here for a description of the alternative plan.

In January 2013, the Washington Health Care Authority released a preliminary report to the legislature showing the initial savings from the best practices plan.  A copy of the report is available here. In March 2014, the HCA along with the Washington chapter, the state hospital association and the state medical association announced results of the first full year of the alternative plan, showing millions of dollars in savings and a significant reduction in overutilization of the ED.  The press release for that report is available here.

 

Enacting Prudent Layperson Protection in State Medicaid Laws

Chapters may also want to consider pursing legislation that would require all state Medicaid programs to abide by the prudent layperson standard.  While the vast majority of states require private plans to base emergency care coverage decisions on the prudent layperson standard, few have the same requirement in their state Medicaid statutes.  And while federal law would seem to require the same standard in Medicaid managed care plans, that law does not apply to Medicaid fee-for-service programs.  Stronger state laws could help ensure that Medicaid programs are not allowed to limit payment based on a Medicaid patient's final diagnosis. Below is a 2012 list from the American Medical Association of the state Medicaid laws that define emergency services.  Some of those definitions reflect language consistent with the prudent layperson standard.  Also below is a link to a bill that the California chapter of ACEP successfully pursued in 2012 that extends the prudent layperson requirement to the state's Medicaid fee-for-service program. The bill passed the Assembly Committee on Appropriations in May 2012 and, importantly, was determined to impose no fiscal impact on the state if enacted because the bill is reflective of current practices in the state. The bill passed the Senate and was signed by the Governor in September 2012. The California initiative could serve as a model for other chapters wanting to pursue state laws mandating that their Medicaid programs abide by the prudent layperson standard.  

 

RESOURCES TO SUPPORT RELATED CHAPTER ADVOCACY EFFORTS

Federal Medicaid Managed Care Law on Prudent Layperson and Prohibition on Diagnosis Lists 

 

CMS/HHS Support of Prudent Layperson Requirement for Medicaid:

ACEP Letter to CMS Regarding Initial Washington State Proposal to Limit Emergency Department Visits (September 2011)

 

Press Releases: 

 

Additional WA-ACEP Resources:

Other Resources:

 

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