WA attempt to limit non-urgent ER visits is being challenged

Budget reductions for the 2011-2013 biennium in Washington state include a legislatively mandated limit on non-emergency visits to hospital ERs, reports Jeffery Thompson, MD, MPH, chief medical officer of Washington's Medicaid program.

As of Oct. 1, 2011, Medicaid will pay for only three non-emergency visits to the ER per client per year, says Dr. Thompson, with the fourth and subsequent non-emergency visits not covered by Medicaid.

"This new rule was added to the Health Care Authority's budget by the legislature earlier this year," says Dr. Thompson. "It was intended to save about $72 million in state and federal funds for the biennium, by rebalancing our efforts to improve access, quality and cost."

Medicaid clients who are approaching the third-visit limit will be notified by letter, says Dr. Thompson, and warned that they may be billed for additional non-emergency visits. He adds that the Health Care Authority is working with communities to reduce non-emergent ER use, and improve the use of the medical home in a variety of other ways.

Hospitals and communities are working on plans to reduce non-emergent ER use as part of a statewide quality strategy, he notes, such as having frequent ER users utilize a single pharmacy, primary care provider, and hospital.

Case managers assist clients with more than three non-emergent ER visits in finding a primary care provider, says Dr. Thompson, and standard guidelines for narcotic use in the ER guidelines are being distributed.

Almost $98 million was spent on 327,965 fee-for-service Medicaid ER visits in 2010, adds Dr. Thompson, and 11,140 clients out of a total 1.2 million used the ER for reasons on the non-emergent code list, of which only 1,000 were children.

The legislature originally calculated the savings in state funds at about $32 million, but legislators also wanted the rule to be implemented July 1, he adds. "That did not allow enough time for preparation, legal requirements or proper notifications of providers and clients," says Dr. Thompson.

The expectation is that care will be improved, says Dr. Thompson, because Medicaid clients with chronic care and associated illnesses will go to primary care providers instead of ERs. "This care will be more comprehensive, more affordable and treat more than just symptoms," he says. "It will foster better care in a medical home."

Efforts to stop plan

The day before the new rule was implemented, the state chapter of the American College of Emergency Physicians (ACEP) filed a lawsuit asking that the court issue an order blocking the rule. At press time, the case was still pending.

"Obviously, this comes from the fact that the state budget that has to be trimmed," says Stephen Anderson, MD, FACEP, president of ACEP's Washington chapter. "The Health Care Authority was told to cut $72 million over two years. They chose to go about doing that by coming up with this plan."

The state ACEP chapter was joined in its lawsuit by the Washington State Medical Association and the Washington State Hospital Association. More than 700 diagnoses are classified as "non-emergent," including chest pain, abdominal pain, miscarriage and breathing problems, says Dr. Anderson.

"Their message is 'Don't go to the ER with any of these diagnoses.' It's ridiculous, and clearly puts their population at risk," he says. "And the Medicaid population is one of the most vulnerable populations we have."

In addition, says Dr. Anderson, the state is violating the federal "prudent layperson" standard, a nationally recognized guideline for determining the need to visit an ER based on an average person's knowledge of health and medicine.

"The prudent layperson law has been in place for decades, and is there to protect everybody in this country," says Dr. Anderson. "It basically says that if you have an insurer, they can't retroactively deny your visit to the ER. We don't want to see this precedent start."

Washington ACEP presented an alternative to the state of assigning case managers to a much smaller population of about 1200 clients with more than eight ED visits a year, according to Dr. Anderson. He acknowledges that this approach would require an investment upfront to implement.

"But if our state budget continues to a be a problem, our approach has the ability to expand," says Dr. Anderson. "With the present proposal, the only way to get more savings is to add more diagnoses to the list. It's a cheap way to do it. You just don't pay for the visit."

Dr. Anderson notes that other state Medicaid programs have made changes to reduce ER utilization, such as Medi-Cal, California's Medicaid program, but its list of 200 diagnoses was approved as non-emergent by ACEP.

"Other states have lists, but they have never tried to block the prudent layperson standard," he says. "The 700 diagnoses were put on the list only because of the economic price tag they carried with them."

Contact Dr. Anderson at (800) 552-0612 or skkanderson@comcast.net and Dr. Thompson at (360) 725-1893 or ThompJ@dshs.wa.gov.