Emergency Care Law Test Awaits in Delayed UnitedHealth Policy

UnitedHealthcare’s recent attempt to deny coverage of certain emergency room visits for “non-emergency” patient conditions may bring a new test to the limits of patient protection laws.

The insurance giant announced in June it would delay the policy through the end of the Covid-19 public health emergency. “We will use this time to continue to educate consumers, customers and providers on the new program and help ensure that people visit an appropriate site of service for non-emergency care needs,” it wrote in a statement.

Denying emergency room coverage may be a violation of federal patient protections, specifically the “prudent layperson” (PLP) standard, according to the American College of Emergency Physicians.

That standard allows people who reasonably think they’re having an emergency health issue to come into the emergency department without worrying about whether their insurance will cover the services they receive.

ACEP isn’t ruling out suing UHC if it goes through with its plan, according to a lawyer with the organization, who spoke on background.

Similar Suit

The group has a similar suit pending against Blue Cross & Blue Shield of Georgia, which released its own policy in July 2017 of retroactively denying payments for emergency encounters which it later deemed “non-emergent.”

ACEP alleged that BCBS violated the PLP standard as set out in the Affordable Care Act. It also alleged violations of the Emergency Medical Treatment & Labor Act (EMTALA)—a 1986 law that aims to ensure public access to emergency services regardless of ability to pay.

The group also claimed BCBS breached the Employment Retirement Income Security Act of 1974, a tax and labor law that establishes standards for employer-sponsored benefits, by denying the right to payment of patient benefits.

BCBS countered successfully that ACEP can only bring EMTALA claims against hospitals, not insurance companies. That portion of the suit was dropped.

BCBS’s retroactive denial policy applies to a limited number of customers—only those who bought health insurance in Georgia as individuals. Thus, it argued in a motion to dismiss that the ERISA claim must fail because the policy “has never been applied to claims from members with group health plans subject to ERISA.”

Individual plans generally fall under the umbrella of the ACA, which doesn’t allow for private causes of action.

The district court granted BCBS’s initial bid to dismiss the entire lawsuit, but the U.S. Court of Appeals for the Eleventh Circuit restored the ERISA and ACA-based claims.

The outcome of any litigation against UHC would depend on the scope of its coverage policy. It’s unclear whether UHC would apply its policy to group health plans governed by ERISA.

‘Deny First’

Health analysts argue that insurers creating a “deny first, attest later” policy can be confusing to customers. Under such a policy, a customer would initially be denied coverage of an emergency visit, but would later have the option to dispute the denial and the bill they received. Industry professionals say reimbursement is unlikely, however.

“It will have a chilling effect on patients’ decisions to seek care, whether that be for themselves or a loved one,” ACEP said in a letter to UHC.

“It will take hearing only a few stories of neighbors, friends, or co-workers who were unexpectedly left with paying an entire emergency department bill after coverage was denied by UHC to make policy holders think twice about seeking care in an emergency.” according to the letter, which was signed by several other provider groups.

“Such hesitation could be life-threatening or result in even greater costs to the healthcare system down the road,” the letter said.

Industry Leader

Other companies may follow UHC’s lead if it successfully manages to deny coverage of some emergency care, health professionals say. UHC is an industry leader with contracts in most hospitals around the country.

“It’ll become the industry standard,” Wendell Potter, former Cigna executive and president of Center for Health and Democracy said. “Even if you’re not a member of UnitedHealthcare, you should be concerned about this because your insurance company will be likely to follow this at some point.”

After UHC released the policy in early June, hospital groups and doctors argued that forces people with no medical training to determine if they should go to the hospital.

UHC encourages patients to reconsider if their situation is enough of an emergency to warrant a hospital visit. The company is taking steps to educate its customers on when to visit urgent care and when to visit the emergency room.

According to UHC, the company currently reports serving 26 million Americans.

Its data show that the average cost of treating non-life-threatening conditions in a hospital is $1,800 higher than in an urgent care center or physician’s office. The insurer calculated in a 2019 report that it receives 18 million avoidable emergency department visits per year and could save $32 billion annually if that care was redirected.

Delaying an unpopular policy because of public outcry is a common move for insurance companies, according to Potter. He said UHC might implement this policy after some of the outcry dies down.

“In the long run, this will cost people. It will kill people. As people become aware of this, they’ll second guess whether or not chest pains are a true heart attack or if an injury to their child is bad enough to take them to the hospital,” Potter said.

Big Medical Bills

Insurance companies struggle with how to keep costs down without affecting the health care their customers receive, Caitlin Donovan, a spokesperson for the Patient Advocate Foundation, said.

Throwing up additional barriers and making it harder for patients to receive care might cause bigger problems long-term, she added.

There’s going to be an increase of people avoiding the hospital for issues that they should be coming in to have treated, Rob Davidson, an emergency physician in West Michigan, said. He’s also board chairman of the Committee to Protect Health Care, an advocacy organization.

“I had a patient who came in five days after he initially felt chest pain because he had just had a $4,000 deductible in the beginning of the year and he didn’t want another medical bill,” Davidson said.

“He had a heart attack and was in heart failure. Had he come when he was initially feeling pain, we could’ve prevented him from having permanent damage to his heart. When you wait too long, a simple medical problem could become a much more complicated one,” he said.

Patients could delay lifesaving surgery and die unnecessarily because they’re afraid of the costs, Erin Fuse Brown, a health law professor at Georgia State University, said.

“Patients aren’t in a good position to be able to judge whether something’s a true emergency,” Fuse Brown said. “If you’ve ever called your primary care physician’s office and left a message, the first thing they would say is ‘Go to the emergency room. Don’t come here, go.’ Don’t second guess yourself. If you think you’re in an emergency, err on the side of caution.”