Nathaniel Schlicher, MD, JD
Washington ACEP, Legislative Chair
Associate Medical Director, SJMC, Tacoma, WA
Emergency Medicine Physician, UWMC, Seattle, WA
Attorney, JGKMW, Seattle, WA
This month, I have invited EMRA's immediate past Legislative Advisor, Nathan Schlicher, to write a guest column about the Washington State Medicaid three visits rule. As a practicing physician in Washington State, this issue is especially critical to me, but has potential consequences nationwide. – Alison Haddock
Two years out of residency and I am in my first lawsuit as a litigant instead of as an attorney. As any physician who has stepped in the court can tell you, it is a strenuous and trying experience. Between legal briefings, media interviews, and strategy sessions with my co-litigants, it is a near full-time commitment.
So how did I land in court? Thankfully it was by choice. On September 30, 2011 the Washington Chapter of ACEP filed suit in Thurston County Superior Court to protect emergency department patients in Washington State and the national safety net. Who is the defendant trying to put our patients in harm’s way? The Health Care Authority (HCA) of Washington State, the department that oversees the state Medicaid program.
Politics and non-collaboration
The Washington State Legislature enacted a budget proviso that required the HCA to limit Medicaid enrollees to three “non-emergent” emergency department visits per year. They also required the HCA to work with the hospital and specialty associations to create a retrospective review process to identify these non-emergent visits in a “collaborative” fashion. The state legislature passed the legislation without a hearing, without considering an alternative, and without consulting experts in emergency medicine. In one month, it became law as part of the budget, fundamentally changing policy with a budget maneuver.
The HCA started with a list of 500 diagnoses from a New York study by Dr. Billings that evaluated ambulatory care alternatives. Unfortunately this list contains over 190 diagnoses that were deemed by the study authors to be emergent 100 percent of the time - including chest pain, asthma exacerbation, shortness of breath, and abdominal pain. Despite attempts by physicians to explain potential harms, the HCA refused to consider the physicians’ concerns. To add insult to injury, the state then unilaterally added 200 additional diagnoses to the list, including burns.
The list now contains over 700 of the most common diagnoses in the emergency department. Painful conditions such as kidney stones and gallstones are on the list. Sexually transmitted diseases are on the list. Injuries not resulting in a broken bone - such as an ankle sprain - is on the list. The message from the state is clear: If you come to the emergency department more than three times, you’d better break something or be near death to be considered emergent.
Destruction of the safety net
The potential cost to hospital and providers could be over $36 million per year from the loss of Medicaid funds; however the true costs could encompass 50 percent of all reimbursement if private insurers were to implement a similar program. Currently, there is a 20-year old “prudent layperson standard,” which has protected private citizens from private insurers performing similar retrospective reviews. This standard requires insurers to provide coverage if a prudent person with similar symptoms would believe that emergency care would be required to protect life, limb, or health; such a standard is in place in most states and included in the Accountable Care Act. The HCA in its decision essentially bypassed this important protection.
It is estimated that if private insurers picked up similar three-visit emergency department limitations, 10-15 percent of visits could be considered “non-emergent.” If this were to progress to none of these visits being covered, the effects could be devastating - few hospitals could survive that type of damage, especially since EMTALA dictates that EDs cannot refuse to treat patients. In turn, fewer hospitals would be able to attract highly qualified emergency medicine-trained physicians.
This situation is not just a local issue. Washington State has been working with 19 other state Medicaid directors about implementing emergency department limitations.
Time to fight
If you had asked me what I would be doing when I joined the Washington ACEP Board of Directors after leaving EMRA’s Board, suing the state was not on the list of things to do. Now as we begin to fight publicly and in the courts, the work has truly begun. Emergency physicians have always advocated for the patient’s best interest. The media has picked up on this story with lead stories on the nightly news, front-page articles, and national attention. I cannot tell you what the courts will decide, but ethics and morals are clearly on our side.
Emergency medicine is constantly cited as contributing to “excessive healthcare costs,” despite only representing two percent of all healthcare expenditures. Your future as an emergency physician is in the balance. I encourage you to get involved and advocate for your patients and your specialty. These issues will only be won by active involvement of emergency physicians at every level. Whether through your hospital, your legislator, ACEP, EMRA, or other organizations - make the time to get involved. Your patients need your help.
Washington ACEP has established an Emergency Medicine Action Fund to fund this endeavor. For more information about our issues, or to contribute to the action fund, visit our website at www.washingtonacep.org.