BCBS Emergency Room Rule Fast Approaching Despite Controversy

The controversial reimbursement policy advanced by Blue Cross of Georgia (BCBSGA) last month is hurtling toward an implementation date of July 1, with big implications for emergency rooms in Georgia. The goal of the policy is to reduce costly visits to emergency rooms by tightening coverage rules for non-emergent conditions. 

BCBSGA, a subsidiary of Anthem, sent out letters to members in May stating, “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 … 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.” This policy change will impact large swaths of Georgia, especially rural Georgia, with BCBS being the only insurer providing individual insurance plans in 96 of Georgia’s 159 counties.

The new policy defines inappropriate visits to the ER as any visit except emergency visits, defined as:

“Emergency” or “Emergency Medical Condition” means a medical or behavioral health condition of recent onset and sufficient severity, including but not limited to, severe pain, that would lead a prudent layperson, possessing an average knowledge of medicine and health, to believe that his or her condition, sickness, or injury is of such a nature that not getting immediate medical care could result in: (a) placing the patient’s health or the health of another person in serious danger or, for a pregnant woman, placing the woman’s health or the health of her unborn child in serious danger; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part. Such conditions include but are not limited to, chest pain, stroke, poisoning, serious breathing problems, unconsciousness, severe burns or cuts, uncontrolled bleeding, or seizures and such other acute conditions as may be determined to be Emergencies by us.

The new policy does not apply to (1) children younger than fourteen, (2) members directed to the ER by another medical provider, (3) instances where an urgent care clinic is more than fifteen miles away from the member’s primary address, or (4) when emergency care is delivered on Sundays or major holidays.

Similar letters were sent to Anthem customers in Missouri and Kentucky.

The “Prudent Layperson” Standard

But is BCBSGA’s new policy legal? The American College of Emergency Physicians (ACEP) has criticized the rule, arguing it violates the “prudent layperson” standard. The prudent layperson, as codified in federal regulations (see 45 C.F.R. § 147.138) and Georgia law (see O.C.G.A. §§ 33-20A-3, 9) requires certain insurers to cover services where a prudent layperson, possessing an average knowledge of medicine and health, would believe the condition to be one of a specified number of emergent situations.

For example, if a member arrives at the ER for symptoms reasonably believed to be related to a heart attack, and it turns out that the member was not experiencing a heath attack, the insurer is required by law to cover the member’s ER visit under the prudent layperson standard.

A spokesperson from Anthem has countered that the policy actually tracks the language of the “prudent layperson” standard and simply enforces rules that have long existed in provider contracts and policies.

But, BCBSGA’s notice to providers states the claims review “will take into consideration the symptoms that brought the member to the emergency room as well as the final diagnosis.” This is likely the point on which any legal debate over the new policy would turn, with challengers arguing the “prudent layperson” standard does not allow for review of final diagnoses.   

EMTALA Conundrum

Another legal issue the policy raises is a hospital’s obligation under the Emergency Medical Treatment and Active Labor Act (EMTALA). Under EMTALA, hospitals are federally mandated to treat any person presenting to the emergency room with an emergency medical condition regardless of that patient’s ability to pay.

The definition of “emergency medical condition” under EMTALA (42 C.F.R. § 489.24) is very similar to that of the “prudent layperson” standard — and therefore similar to the new BCBSGA policy — albeit with subtle differences. Regardless of the similarities, a hospital may be subject to two differing interpretations, feeling pressure to treat a patient under EMTALA but then denied payment according to the BCBSGA medical director’s review. This may lead to more uncompensated care among a hospital’s insured population, on top of the uncompensated care regularly incurred treating uninsured patients.

Telehealth’s Role

BCBSGA is recommending telehealth as one alternative to non-emergent ER visits, according to one report. Specifically, the May letter to customers suggested use of BCBSGA’s preferred telehealth vendor, LiveHealth Online: “[I]f a member can’t get an appointment with their primary care doctor, most non-emergency medical conditions can be easily treated at retail clinics, urgent care clinics, or 24/7 telehealth services such as LiveHealth Online.”

The utilization of telehealth for low-acuity conditions and triage is becoming increasingly popular with health plans. Payers welcome telehealth as an alternative to costly, non-emergent ER visits, and coverage policies like that of BCBSGA will likely continue to drive consumers to lower-cost telehealth options.

Boling & Company will continue to follow the implementation of this new policy to better inform individuals and healthcare providers in Georgia about how they will be impacted.

Disclaimer: The foregoing materials are provided for informational purposes only, and are not to be construed as legal advice. Please consult an attorney before applying this guidance to any particular facts or circumstances. 

Task Force Unveils Proposals for Georgia’s Uninsured

The Georgia Chamber of Commerce’s Healthcare Access Task Force released a proposal Wednesday to combat Georgia’s high uninsured population. 

The plan provides three different tracks for Georgia legislators to consider, none of which expand Medicaid to the full extent provided by the Affordable Care Act. However, each proposal would substantially reduce Georgia’s uninsured rate, which hovers around 6 percentage points higher than the national average — 48th-ranked in the U.S. 

The three proposed plans are as follows:

1) Close the Coverage Gap. One of the great absurdities of the mangled ACA is that states declining to expand Medicaid cannot even promise low-income citizens subsidies in the private insurance market because some are too poor to qualify. The subsidies originally were intended for non-Medicaid recipients, so they the federal government cuts them off at 100 percent of the poverty line. This leaves a “coverage gap” in non-expansion states, where a person’s income could be too high for Medicaid but too low for subsidies. The task force’s first proposal would close this gap by expanding Medicaid to childless adults up to 100 percent of the federal poverty level (“FPL”) ($11,880 for an individual in 2016). 

2) Medicaid Expansion Reworked. The task force’s second option uses Georgia’s Medicaid CMOs to expand eligibility up to 138 percent of the FPL — the income threshold called for under the ACA. However, because this model would contain elements unlike the traditional Medicaid expansion, such as cost-sharing by beneficiaries, Georgia would still have to petition the federal government for approval of the model as a “waiver.” 

3) Public/Private Hybrid. The third option would use Medicaid CMOs to insure those up to 100 percent of the FPL, but would use private qualified health plans, paid for by Medicaid with some cost-sharing, to cover the population between 100 and 138 percent of the FPL. 

Georgia Health News reports that the task force will release enrollment estimates or savings projections tied to each plan later this year. 

What does King v. Burwell mean for Georgia?

This week, the U.S. Supreme Court will hear oral arguments in King v. Burwell, the case that threatens to undo a critical element of the Affordable Care Act. The Court will consider whether the subsidies that have allowed many to purchase health insurance were legally awarded to consumers using the ACA's federally run exchanges, and whether those subsidies should now be taken away. 

The ACA called for federal health insurance exchanges to fill the void left by states choosing not establish their own exchanges. This void was larger than expected, as only 14 states opted to operate their own insurance exchanges. Consequently, 8.84 million Americans have signed up for insurance via the federally run exchange, HealthCare.gov. 

However, the provision calling for subsidies that would help make insurance affordable on the exchanges — the provision at issue in King — perhaps mistakenly limited those subsidies to “exchange[s] established by the state.” While other portions of the law suggest subsidies were intended to be available through state and federal exchanges, the challengers in King contend the law means what it says: subsidies are limited to state-run exchanges.

Georgia is one of the states that declined to establish an insurance exchange. Approximately 425,000 Georgians have purchased insurance through the federal exchange, 90 percent of whom receive subsidies. 

If the Supreme Court rules against the government in King, these half-million Georgians will lose their subsidies and face significantly heightened premiums. The effects of this change will likely be felt by anyone who holds private insurance in Georgia: unaffordable insurance means fewer insured, and fewer insured means higher premiums across the board. 

Such a ruling would reduce the financial support available to Georgians under the ACA to roughly zero, as the state has already rejected the law’s Medicaid expansion. From a practical standpoint, dismantling the law in such piecemeal fashion would continue to be highly problematic, given that much of the ACA would still impact Georgia. (For example, certain individuals and employers will still be mandated to purchase insurance.) 

The worst victim of this selective undoing of the ACA might be providers, as the law's reimbursement and disproportionate share cuts will remain in effect, but would not be offset by increased privately insured or Medicaid patients. Providers would also continue to bear the same amount of uncompensated care they did before the ACA. 

The Department of Health and Human Services has announced it is not pursuing a contingency plan in the event of an adverse ruling, though some Republican legislators have proposed alternatives to the law they have long maligned. The Court’s decision is expected in late June.