The Attempted Mass-Murder of ER Insurance Coverage

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According to the Affordable Care Act, anyone needing emergency care is entitled to treatment. In 1985, the Emergency Medical Treatment and Labor Act (EMTALA) was enacted to provide federal protection. Even so, insurers have tried to get around covering emergency services. The federal government has now muscled up, suing insurers for denying emergency coverage.

Early this month, the Department of Labor sued UMR INC, a subsidiary of the United Health Group of Wisconsin, which administers thousands of employer self-insured plans. The suit alleged illegal violation of established standards of care in determining when emergency coverage is warranted. [1]

According to the complaint, UMR’s practice of denying all emergency claims and urinary drug screening claims continued from 2015 to at least 2018. (After 2018, some were covered). Allegedly, the company breached its own policies

  • Regarding assessing coverage eligibility
  • Failing to evaluate claims based on recognized standards,
  • Breaching their statutory responsibilities as fiduciaries. Fiduciaries are required to manage the property and monies of others solely for the benefit of their clients or beneficiaries – a higher level of responsibility.

A similar lawsuit was lodged against Cigna last month. In their case, the pinnacle of the offense occurred in 2002, when they allegedly denied 300,000 claims in two months. That lawsuit alleges that the average time to deny each claim was 1.2 seconds.

According to one commentator:

“Denials can be lucrative for payers by reducing the amount of claims that need to be paid, given only a fraction of denials are generally appealed.”

Supposedly, per a ProPublica investigation, Cigna physicians used an algorithm, PxDx, to instantly reject claims analyzing them in bulk instead of individually per statutorily mandated practice, leaving patients on the hook for medical bills that, in many cases, should have been covered. Cigna’s defense: “Everyone does it.”

Many insurers have integrated this program or other AI vehicles into claim assessment, using algorithms to predict the services to be allocated and facilitate denials – with decisions supposed to be made individually, made instead of en masse. “One of the biggest and most controversial companies behind these models, NaviHealth, is now owned by UnitedHealth Group” (the parent of UMR).

This latest suit against UMR rests on a more insidious practice employed in rejecting Emergency Room claims and urinary drug screening.  While the health plans retaining UMR require them to use fair and impartial review of claims, allegedly, a more robotic system was used – violating the agreement between UMR and its customers and violating federal regulations.

Rather than conforming to federal standards and regulations, over 370 of the administered plans, UMR used the “True Emergency” system and based its decisions on the existence of one of two diagnoses, “True ER,” diagnostic code T10, or “Sudden and Severe,” diagnostic code T11. Allegedly, any claim which did not include at least one diagnosis applicable to T10 or T11 codes was automatically denied – at least through 2018, when the system was supposedly modified.

The denial afforded minimal information to the participant, essentially foreclosing or impeding effective appeal. The denials did not indicate if the claim was rejected for lack of proper documentation or provide a description of additional information necessary to perfect a claim, as was required by law and contract. In addition to requiring disclosure of the specific reasons for any adverse determination, the claims are to be assessed according to the “reasonable layperson” standard, which signifies the input of human evaluation and consideration in decision-making.

The Prudent Layperson

“The Prudent Layperson Standard requires insurance companies to provide coverage for emergency care based on symptoms, not the final diagnosis. This distinction is important because 90 percent of urgent and nonurgent symptoms overlap. Doctors often don’t know if your symptoms require emergency treatment without medical examination and testing.”

As medically defined, symptoms are subjective, including complaints like pain or itch. Signs are objective medical findings, test results, or physical manifestations like swelling or rash

As set out in the  ACA [Affordable Care Act], a “prudent layperson” standard applies to all federal health-care plans, all insurance plans governed by ERISA, and qualified health insurance plans in state-operated health insurance exchanges. This standard requires health plans to cover health services provided by an emergency department whenever a patient has … “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 serious negative health outcomes.

The “prudent layperson” standard arose from negligence law, where the prudent individual refers to actions or inactions of a reasonable person acting under similar circumstances and governs decisions of liability. Here, we are talking about a reasonable person without medical training.

While a prudent layperson might consider chest pain, for example, to be a situation requiring an emergency visit, nearly half the American public does not realize that their health insurer must cover the cost of going to the emergency department if they reasonably believe they have a medical emergency. Such belief, of course, dissuades emergency visits. Public and individual health suffers when such beliefs are compounded by actual practice.

Unfettered access to emergency care, including testing, is critical in warding off severe conditions and death. Such testing as can only be provided in a critical care facility is necessary before reaching the diagnosis, which UMR had set up as the basic rubric for allowing coverage. In other words, by warding off or dissuading early testing, reaching the diagnosis level needed to sustain coverage was essentially precluded.

“[M]ost clinicians cannot make a diagnosis with confidence without the support of a wide range of tools and tests. A 2013 JAMA study found that patients who receive a diagnosis of a low-acuity condition often present with initial complaints similar to patients with more serious conditions.”

American College of Emergency Physicians

A case in Georgia

Emergency services are especially significant for the most vulnerable segments of society, along with those needing mental health intervention- but before the Department of Labor’s recent intervention, protection for anyone seeking emergency care was left to ad hoc activities of physician groups. One of the earliest lawsuits, in 2020, was brought by the American College of Emergency Physicians and the Medical Association of Georgia, suing Anthem’s Blue Cross Blue Shield. In that case, the suit was for retroactively denying emergency care claims. The Eleventh Circuit ruled their policy was improper. In 2021, United Health Care planned to also retroactively deny emergency health care claims. The Georgia decision swiftly impacted United Health Care’s new plan- they quickly abandoned it.

The Eleventh Circuit also held that:

  • Providers who receive a patient’s assignment of benefits have the right to seek equitable relief under ERISA.
  • Anthem/Blue Cross Blue Shield’s emergency room claims review process is being conducted on a systemic versus individual basis – noting the company uses a pre-determined list of undisclosed diagnoses to make its decisions.   

The Anthem/Blue Cross Blue Shield policy could subject ACEP and MAG physicians to past and ongoing harm

The opinion, which governed the Georgia case, is not binding in the Department of Labor matter against UMR but should have some persuasive value on the Western District Court of Wisconsin, which will be deciding the current case.

Now that the US government is involved, perhaps insurance companies will think better of actions that deepen their pockets but accrue to the detriment of their beneficiaries and wreak havoc on the public purse. As algorithms and AI quickly assumes prominence in decision-making, the horrors of vesting such decisions en masse to an algorithm cannot be ignored.

[1] The standards for making these determinations are enumerated under the Employee Retirement Income Security Act or ERISA and hold the administrator of the plans to the level of responsibility required of a fiduciary – managing, in this instance, their money for their benefit.