Is it legal for Medicaid to limit non-urgent ER visits?

As a general rule, courts have upheld limitations on Medicaid reimbursements for services, as long as the services are "sufficient in amount, duration, and scope to reasonably achieve their purpose," according to Laura Hermer, JD, LLM, an assistant professor of health policy and bioethics at the University of Texas Medical Branch in Galveston.

"A state Medicaid agency can put reasonable limits on a service based on utilization control, as it would appear Washington has attempted to do," says Ms. Hermer, noting that courts have upheld state limitations on coverage of monthly physician visits and annual hospital inpatient and outpatient days.

The Washington chapter of the American College of Emergency Physicians (ACEP)'s lawsuit against Washington's Health Care Authority claims that emergency care is treated differently under the law from other Medicaid services in several crucial respects, says Ms. Hermer, and thus may not be able to be limited, at least for certain Medicaid populations, in the way the state seeks.

"The lawsuit includes a mix of state and federal law arguments," says Erin C. Fuse Brown, JD, a visiting assistant professor and visiting fellow in ethics and health policy at Arizona State University's Sandra Day O'Connor College of Law in Tempe.

The broader legal issue is whether these types of ER visit limitations or reductions in payments for non-emergency ER visits violate federal Medicaid requirements, says Ms. Fuse Brown, and whether lawsuits by providers or patients can seek to enforce these Medicaid requirements.

As state Medicaid agencies struggle to reduce unnecessary ER use through coverage limitations and co-payments, the boundaries of permissibility will likely be challenged in the courts, according to John D. Blum, JD, MHS, a John J. Waldon research professor of law at Loyola University Chicago School of Law. "But, reduction in inappropriate ER utilization is essential to programmatic reform," he adds.

Reasons for ER use

The lawsuit's contentions that the state can't restrict ED coverage for children and people covered by a Medicaid managed care organization, at least not without a waiver, may be correct, says Ms. Hermer.

"But whether or not the suit is ultimately successful, Washington's policy is a poor one," she says, acknowledging that Medicaid populations generally obtain care in ERs for non-emergent conditions more often than patients with other forms of coverage.

Medicaid beneficiaries often have a more difficult time finding providers than people with other forms of coverage, Ms. Hermer explains, and are more likely to have low-wage, low-skill jobs that they risk losing if they take time off to see a doctor.

"The ED, however, has to take them, and is open both nights and weekends," she says. "EDs also provide 'one-stop shopping,' so patients don't have to take further precious time off from work or caregiver activities to obtain tests and studies, or see specialists."

It's not surprising that Medicaid patients use EDs as a regular source of care, says Ms. Hermer, but Washington's policy doesn't make it simpler for beneficiaries to obtain non-emergent health care from regular providers. "Rather, it merely squeezes both Medicaid patients and emergency providers further than is already the case," she says.

"Prudent layperson" is key

The challenge to the Washington state ER policy centers around whether the three-visit restriction violates the federal "prudent layperson" standard that defines an emergency, according to Mr. Blum. "Bona fide emergencies, under federal and state law, must be covered by fee-for-service and managed care Medicaid," he says.

One of the lawsuit's claims is that the new policy conflicts with federal rules that require Medicaid managed care plans to pay for all emergency services needed to evaluate and stabilize emergency conditions, says Ms. Fuse Brown.

These are defined from the point of view of what a prudent layperson would think is an emergency condition needing immediate medical attention, she adds.

"The rules go on to say that Medicaid managed care entities may not limit what constitutes an emergency medical condition on the basis of lists of diagnoses or symptoms," says Ms. Fuse Brown.

While federal law requires Medicaid managed care plans to provide reimbursement for emergency services using the "prudent layperson" standard, Washington's new rules would mean that reimbursement would be barred for some conditions based on discharge diagnoses, notes Ms. Hermer. "As such, Washington's rule is at odds with federal requirements for Medicaid managed care plans," she says.

Most of Washington's Medicaid population is covered by managed care organizations, yet Washington's Health Care Authority doesn't except these beneficiaries from the rule, adds Ms. Hermer.

Additionally, she says, care for children under Early and Periodic Screening, Diagnosis, and Treatment programs can't be subject to limitations such as the one Washington is imposing on emergency services, yet children aren't excluded from the rule.

While issues about compliance with state administrative procedures are raised, and a federal supremacy clause challenge is made, Mr. Blum says "the heart of the case is more akin to [Emergency Medical Treatment and Labor Act] litigation that raises questions about whether a given scenario constitutes an emergency requiring appropriate action."

Underlying tension

"The legal issue underlines a tension in competing policy concerns," says Ms. Fuse Brown. On the one hand, she says, state and federal laws tend to define emergency conditions from the perspective of a prudent layperson, based on the belief that a person who reasonably believes he or she has a medical condition should not be discouraged from going to the ER out of fear that the visit won't be covered.

On the other hand, states like Washington are struggling to deter people from going to the ER for conditions that are clearly non-urgent, or for chronic conditions that are better treated by primary care physicians or walk-in clinics, says Ms. Fuse Brown.

"In theory, the prudent layperson definition of covered emergency conditions already addresses those cases, because a prudent layperson should be able to tell that a sprained ankle is not an emergency," she says.

Washington's list of 700 non-emergency diagnoses appears to include conditions that a prudent layperson may reasonably believe to be an emergency, however, says Ms. Fuse Brown.

"If a person fears they broke their ankle, but in fact only suffered a serious sprain, should they be denied coverage for their ER visit to get an X-ray and rule out the broken bone?" she asks. "Or should they wait until they can be seen by their regular physician, even if means delaying treatment for what turns out to be a fracture?"

Ms. Fuse Brown says that "the looming and unanswered legal issue" is whether providers or beneficiaries have the ability to sue the state for policies that violate Medicaid rules.

She notes that the U.S. Supreme Court recently heard arguments in the case of Douglas v. Independent Living Center of Southern California, and is considering whether providers and patients have the right to sue states for Medicaid cuts that violate federal laws, when there is no such explicit right of action.

The state of California and the federal government argued that providers and patients have no implied right to sue to enforce the Medicaid laws, which is left to federal agency oversight, Ms. Fuse Brown explains.

"The providers and patients argue that they have the right under the Supremacy clause of the Constitution," she says. "This provides that federal laws, like Medicaid, trump conflicting state laws."

The outcome of the Douglas case will certainly affect Washington ACEP's arguments against the Medicaid ER visit policy, says Ms. Fuse Brown, "which, echoing the providers in Douglas, ACEP argues is unconstitutional under the Supremacy clause of the Constitution."

Contact Mr. Blum at (312) 915-7175 or jblum@luc.edu, Ms. Fuse Brown at (480) 727-2091 or Erin.FuseBrown@asu.edu, and Ms. Hermer at (409) 772-9379 or ldhermer@utmb.edu.