Update on the Access to Emergency Medical Services Act of 1997

Proposal will require Medicaid and Medicare plans to use"prudent layperson"

Long on the horizon, it appears that the long-awaited Access to Emergency Medical Services Act, which mandates the "prudent layperson" definition of an emergency, prohibits prior authorization, and requires health plans to pay for ED services delivered up until the point of stabilization, is nearing the home stretch. "It’s good news for emergency physicians, good news for patients, and it’s long overdue," says Larry Bedard, MD, FACEP, immediate past president of the American College of Emergency Physicians (ACEP).

Experts feel secure the bill will soon become law. "I am very confident the legislation is going to pass this year," Bedard emphasizes. "Since it’s going to be part of the budget, it should be enacted in the fall before Congress adjourns."

"This is the one topic I am feeling cautiously optimistic about," says Charlotte Yeh, MD, FACEP, chief of emergency medicine at New England Medical Center in Boston. "It’s one of the few managed care bills that has widespread bipartisan support and also tremendous consumer rapport and appeal." The issue has attracted the attention of a presidential commission, the media, the public, and health plans. At press time, the bill had 142 cosponsors in the House of Representatives, and 21 in the Senate.

Experts agree that the legislation will have a significant impact on EDs nationwide. "The expectation is that coverage for EDs should improve, with a reduction of inappropriate denials and an improvement in the appeals and grievance process, which would reduce expenses at that end," says Yeh.

Another recently introduced health care reform bill, the Patient Access to Responsible Care Act, also addresses access to emergency services. "My contention is patients need to be treated when they go to an emergency room, not have the physician spending time getting an OK from a clerk," says Rep. Charles Norwood (R-GA), the congressman who introduced the bill. "The whole preauthorization process is, in my view, full of holes because it takes away the ability of the practicing professional to make decisions."

Emergency personnel should get involved in this issue, he said. "If their [representatives] aren’t sponsoring this bill, they need to get on the phone and insist that they do," argues Norwood. "Their responsibility is to the patient, and in the close of the 20th century that includes politics. They have to get involved because they are the most knowledgeable people in the country on this issue."

Requiring MCOs to adhere to federal guidelines is long overdue, he says. "We have been allowing the cost of health care to dictate patient care," says Norwood. "This is an effort to provide standards that say saving money is not always the bottom line, the patient’s health is."

Reduced ‘hassle factor’

Although prior authorization and retrospective denial have long been headaches for emergency physicians, patient care is the primary concern. "The motivation is not to get better paid—it’s better for patients," says Yeh. "Patients try so hard to follow the rules; they’re afraid to access emergency services. They’re the ones getting hurt."

Once the Access to Emergency Medical Services bill is passed, ED patients will be the biggest winners. "It’s a real positive boost for the patients more than anything else," says Yeh. "They can now come unencumbered with no barriers to access, and we can care for them unencumbered. It will be a great relief for physicians to have the freedom of caring for patients they ought to be caring for."

Patients will now feel free to come to the ED if necessary. "We’ve got hundreds of cases where patients appropriately went to the ED and then were retrospectively denied," says Bedard. "This puts the patients in control of their own destiny in a sense, and it appropriately focuses the attention on the presenting complaint and not the discharge diagnosis."

It will also have a positive effect on the financial health of EDs. "We estimate 85-90% of the patients will meet the definition, and the legislation will also outlaw prior authorization, so it will decrease the hassle factor both for patients and emergency physicians," predicts Bedard. "We will also require them to pay up to the point of stabilization, which will be determined by the examining physician."

The law will also make it easier to fulfill COBRA/EMTALA requirements. "It reduces the tremendous conflict with existing federal law. Now, we will be reimbursed for at least an initial emergency department evaluation," says Yeh. Since patient reimbursements will improve, there will be fewer appeals, which will improve patient satisfaction with emergency care, she says.

Health plans will have to educate their members about emergency services. "Education is going to be borne in large part by the plans. They are going to have to ensure their marketing information adequately supports the prudent layperson access and the ability to call 911 when the person fears an emergency," says Yeh. "The media may also be helpful, because they’ve been following the issue so closely."

At first, only Medicare/Medicaid patients

As part of the budget reconciliation bill, the legislation would affect only Medicare and Medicaid patients initially. "This will pave the way, and it will later get reintroduced in some other legislation to cover all health plans," says Yeh.

The bill will speed progress toward other legislation. "I think there’s going to be a very strong ripple effect," says Bedard. "It’s going to be hard to provide patient protections to only those people, and not the commercially insured who pay their premiums. I’m optimistic we’ll pass legislation during this session of Congress which includes the commercially insured."

The legislation may spur on health plans to adopt the prudent layperson definition voluntarily. "Some of the better plans are already adopting the definition, and the not-so-good plans are going to need a federal mandate to get them to do the right thing," says Bedard. Currently, Kaiser Permanente is the only health plan that supports the Access to Emergency Medical Services Act.

The American Association of Health Plans has recommended that health plans voluntarily adopt the prudent layperson definition, but as of yet, Kaiser Permanente is the only major plan which has done so. (To find our more about the landmark agreement between ACEP and Kaiser, see the October 1996 issue of ED Management.) "It would be prudent for health plans to follow that example, and it will be good for managed care’s image as well, to show they really are consumer and patient oriented," says Yeh.

‘Severe pain’ controversy

Reforms are also taking place on a statewide basis. "That’s why I think this is a winner and we’re moving in the right direction," says Yeh. When state legislators met in Massachusetts to discuss managed care issues, access to emergency services came out No. 1 repeatedly. And after Washington’s state legislature passed an omnibus health care reform bill, the entire bill was line item vetoed by the governor—except for the section relating to the prudent layperson definition of an emergency.

Although both the House and Senate versions of the bill include the "prudent layperson" language, one eliminated the words "severe pain" from the definition of what constitutes an emergency. "The health plans are lobbying very hard to get rid of it, but it is in the official EMTALA definition," notes Yeh. During a presidential advisory commission panel discussion on the issue of access to emergency services, the "severe pain" issue invoked a heated debate.

The "severe pain" language is the only issue still in contention, says Bedard, who recently testified before the commission. "All the players and interested parties have conceded that prudent layperson is the way to go. The only thing we’re really discussing now is should severe pain be included in the definition, and I’m confident we’ll prevail on that issue."

Health plans are still fiercely lobbying against the "severe pain" language. "I think it’s a question of brute force and how they can use their money, market share, and lobbying power to convince Congress to eliminate it," argues Bedard. "Their concern is this would be a green light for anyone with any pain to go to the ED, and I don’t think they really understand the definition. It’s been part of a law under EMTALA since 1986, and I don’t think the President’s Commission on Consumer Rights is going to remove consumer rights that have been in existence for 10 years."

The bottom line is financial concern. "Their concern is money, as it typically is," says Bedard. "They’ll have to pay for more claims, and obviously the fewer claims they pay the more they’ll make."

It’s essential that severe pain be included in the definition of an emergency, says Bedard. "I think it’s inhumane to let somebody suffer for eight hours with headache, nausea, and vomiting, just waiting for their primary care physician to open his office in the morning," he explains. "Some of these HMOs won’t pay for visits for kidney stones, saying you’re not going to die of a kidney stone, you’ve had one before. I don’t save that many lives, but I sure do alleviate a whole lot of suffering, and I think people deserve more humane care."