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January 2018 President's Message - Anthem's Attacks on the Prudent Layperso
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4/19/2018 at 9:28:34 PM GMT
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January 2018 President's Message - Anthem's Attacks on the Prudent Layperso

Anthem's Attacks on the Prudent Layperson Standard

By Aimee Moulin, MD, FACEP

It has been 31 years since Congress passed the Emergency Medicine Treatment and Active Labor Act (EMTALA), which forever changed our specialty and our healthcare system. EMTALA codified the right to access emergency care and stabilizing treatment long before the Affordable Care Act (ACA). Prior to the 1986 law, patients could be turned away or unceremoniously dumped on public hospitals because of their inability to pay or insufficient insurance. The law applies when an individual has a medical emergency and they arrive at a hospital who has a contract with Medicare. At the same time the law created an unfunded mandate to provide emergency care.


Who pays for the unfunded mandate created by EMTALA has been an ongoing challenge. According to a 2003 report from the Center for Health Policy Research, the average emergency physician provides more than ten times the average of all other specialties in uncompensated, EMTALA-mandated care.1 In addition to subsidizing the care of indigent patients, emergency physicians also provide uncompensated care to insured patients due to the varied practices of private insurance companies to deny payment for or to underpay for emergency care.

The principle of the “prudent layperson” standard for defining insurance coverage for emergencies is one of the most important principles in supporting our emergency care system. It is the statutory protection against one of those insurance company methods for payment denial. It defines an emergency medical condition as "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in — (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment of bodily functions, or (iii) serious dysfunction of any bodily organ or part."2 For example, an insurance company can’t refuse to cover an emergency department (ED) visit for a patient whose chest pain turns out to be indigestion. The prudent layperson standard means insurance companies cannot deny coverage to patients on the basis of their final diagnosis. This protection was included in the ACA and has been California law long before the ACA.

Identifying patients who don’t need emergency treatment is complex, and can take multiple diagnostic tests and the expertise of an emergency physician. It is not possible to accurately correlate a patient's chief complaint with his or her discharge diagnosis and any attempt to do so results in undertriage that could result in hospital admission and/or surgical procedures in the future.3

However, this past year Anthem released a list of ED discharge diagnoses they deemed unnecessary. In a handful of states Anthem plans to or already is in the process of denying their customers coverage and leaving insured patients without any coverage for emergency care. It undermines the value and expertise of ED care from triage nurses, pharmacists, emergency physicians, and social workers. All the while, Anthem has had a banner year with share prices up 50% over last year. California is not one of the states where Anthem has announced this policy. In 1994 California ACEP sponsored legislation ensuring a patient’s right to emergency care by establishing the prudent layperson standard in our state.

However, Anthem is threatening to undermine this patient-centered guarantee by announcing a plan to reimburse paramedics to not transport patients to the ED. This represents a new paradigm for emergency medical services (EMS) in California. This is functionally different than the practice of a patient-initiated non-transport where a patient declines transport and signs a refusal of transport (a field AMA). Instead, Anthem’s decision would incentivize EMS-initiated refusal of transport. Without proper protections, incentivizing paramedics to not transport patients to EDs is potentially dangerous to patients and the EMS system. Approximately 90% of EMS related litigation involves non-transport. EMS-initiated refusal involves considerable risk for the patient and EMS providers.

Data on triage agreement between paramedic and emergency department staff is generally poor. Current medical literature does not support the safety of paramedic determination of medical necessity.4-8

Determining medical necessity is a complex decision that is difficult to make in the field environment.9 Paramedics are not trained to make diagnoses in the field and patients with serious conditions may present with seemingly minor complaints or with symptoms that are difficult to elicit and identify. The inherent challenges of a pre-hospital environment does not allow for the privacy needed for a medical screening history and examination.

EMS-initiated refusal of transport for 911 patients is unlikely to reduce ED crowding. Hospitals are full due to boarding and limited inpatient capacity. Anthem’s new policy to reimburse for EMS-initiated refusal of transport for 911 patients creates a new reimbursable service that patients may be required to pay for. Ultimately it threatens the public trust that exists: that upon accessing the 911 system, they will be evaluated and treated in the pre-hospital setting and transported to the appropriate hospital. EMTALA protections for patients apply to hospitals. The general public believes they have accessed the hospital emergency system, and those protections, when calling 911 for a medical emergency. This is a surreptitious attack on the prudent layperson standard and decades of patient protections over the right to emergency care.

Our healthcare system is undergoing transformational forces; EDs are neither the source of all problems, nor the answer to all challenges in the healthcare system. We will need to embrace change and innovation. But, this must not come at the expense of the basic right to life saving emergency care.




  1. Kane C. Physician Marketplace Report: The Impact of EMTALA on Physician Practices. . American Medical Association;2003.
  2. Li J, Galvin HK, Johnson SC. The "prudent layperson" definition of an emergency medical condition. The American journal of emergency medicine. 2002;20(1):10-13.
  3. Raven MC, Lowe RA, Maselli J, Hsia RY. Comparison of presenting complaint vs discharge diagnosis for identifying " nonemergency" emergency department visits. Jama. 2013;309(11):1145-1153.
  4. Brown LH, Hubble MW, Cone DC, et al. Paramedic determinations of medical necessity: a meta-analysis. Prehospital emergency care : official journal of the National Association of EMS Physicians and the National Association of State EMS Directors. 2009;13(4):516-527.
  5. Fraess-Phillips AJ. Can Paramedics Safely Refuse Transport of Non-Urgent Patients? Prehospital and disaster medicine. 2016;31(6):667-674.
  6. Neeki MM, Dong F, Avera L, et al. Alternative Destination Transport? The Role of Paramedics in Optimal Use of the Emergency Department. The western journal of emergency medicine. 2016;17(6):690-697.
  7. Pointer JE, Levitt MA, Young JC, Promes SB, Messana BJ, Ader ME. Can paramedics using guidelines accurately triage patients? Annals of emergency medicine. 2001;38(3):268-277.
  8. Silvestri S, Rothrock SG, Kennedy D, Ladde J, Bryant M, Pagane J. Can paramedics accurately identify patients who do not require emergency department care? Prehospital emergency care : official journal of the National Association of EMS Physicians and the National Association of State EMS Directors. 2002;6(4):387-390.
  9. Millin MG, Brown LH, Schwartz B. EMS provider determinations of necessity for transport and reimbursement for EMS response, medical care, and transport: combined resource document for the National Association of EMS Physicians position statements. Prehospital emergency care : official journal of the National Association of EMS Physicians and the National Association of State EMS Directors. 2011;15(4):562-569.

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