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July 19, 2018

Physician groups sue Anthem, alleging ED coverage policy violates federal law

Daily Briefing

    Physician groups on Tuesday sued Anthem Blue Cross and Blue Shield (BCBS) of Georgia over the insurer's policy of not covering ED visits it considers unnecessary.

    Here are the 15 tactics to reduce avoidable ED utilization


    Anthem in May 2017 began notifying hospitals, members, and state officials in Georgia and Missouri that as of July 1, 2017, it would no longer cover ED visits for most instances of minor conditions that could "safely [be] treated in less acute facilities." The policy had previously been in place in Kentucky and has since been expanded to Indiana, New Hampshire, and Ohio. Anthem had planned to bring the policy to plans throughout the country this year, but according to Modern Healthcare, it's unclear whether Anthem still plans to do so.

    When Anthem announced the policy, it urged members who have non-emergency conditions to seek out medical help at urgent care facilities or retail clinics, or to contact Anthem's telehealth services and 24/7 nurse hotline.

    After criticism of the policy, Anthem created an expanded set of exemptions, saying the ED policy would not apply if the member:

    • Is directed by a health care provider to visit the ED;
    • Is traveling out of state;
    • Is younger than 15; and/or
    • Received surgery, IV fluids, IV medications, an MRI, or a CT scan during their ED visit.

    Other exemptions to the denial policy include cases when:

    • An urgent care center is not within 15 miles of the member; and/or
    • The visit occurs over the weekend or on a major holiday.

    Providers and patient advocates pushed back against the policy, saying it could discourage members from getting needed care.

    Jay Moore, CMO for Anthem Blue Cross Blue Shield Missouri, said Anthem's policy has long been part of coverage contracts, although it has not always been enforced. The insurer decided to begin enforcing the policy, Moore said, to stem increasing costs related to inappropriate ED use.

    Lawsuit details

    The American College of Emergency Physicians (ACEP) and the Medical Association of Georgia in a federal lawsuit filed Tuesday claim Anthem's ED coverage policy harms health care providers and patients and violates several federal health care laws.

    Specifically, ACEP and the Medical Association of Georgia in the lawsuit say Anthem's ED coverage policy has resulted in providers being denied reimbursements they say they are owed for ED services. The lawsuit states that ED providers are now spending time and effort to respond to "inappropriate denials."

    Further, ACEP and the Medical Association of Georgia contend Anthem's ED coverage policy violates the Emergency Medical Treatment and Labor Act (EMTALA), which requires ED physicians to see any patient who visits a hospital's ED. According to Axios' "Vitals," EMTALA states that an "emergency medical condition" is one that "prudent layperson" would think requires immediate attention.

    The lawsuit also claims Anthem's ED coverage policy violates the Employee Retirement Income Security Act of 1974 (ERISA) and Title VI of the Civil Rights Act of 1964 because it disproportionately affects "members of protected classes."

    Moreover, the lawsuit alleges, Anthem's ED policy "forces providers to question the ultimate diagnosis prescribed to a patient, in spite of their presenting symptoms, as the ultimate indicator of whether payment will be made" and discourages patients from seeking ED care.

    In addition, the lawsuit argues Anthem does not request medical records when determining whether to cover ED visits and instead relies on a list of diagnostic codes, which Anthem has not publicly released, to decide whether to pay reimbursements for ED care.

    According to the lawsuit, Moore of BCBS Missouri in a meeting with ACEP officials said 30 to 40% of ED visits are avoidable, but Modern Healthcare reports that CDC estimated only 4.3% of ED visits in 2014 were for non-urgent symptoms.


    Laura Wooster, associate executive director for public affairs in ACEP's Washington office, said, "This is a first step in the process and depending on how things play out, we would entertain filing in other states where Anthem is (implementing) the policy." Wooster said ACEP decided to file a lawsuit in Georgia first because the Medical Association of Georgia came forward as a possible partner for a lawsuit. According to Wooster, Anthem's policy could have "a chilling effect [on] patients and their decision to seek care for what could potentially be an emergency" and "could result in them being left with their entire bill uncovered."

    Anthem did not respond to a request for comment, Modern Healthcare reports.

    Previously, Debbie Diamond, a spokesperson for Anthem BCBS of Georgia, had said that while the insurer is trying to cut back on inappropriate ED usage, the decision to enforce the policy is not designed "to discourage somebody with an emergency condition who needs to go to an [ED] to go there." Rather, "it's a way to make sure that people are getting quality and affordable care," she said.

    Report: Initial denials usually overturned

    In related news, Anthem has overturned a growing number of initial coverage denials since it rolled out the non-emergent care denial policy, according to a report released Thursday by Sen. Claire McCaskill (D-Mo.).

    The report looked at claims denials and the outcomes of appeals in some of the states where the non-emergent care denial policy is in effect.

    The report found Anthem denied about 12,000 claims in Georgia, Kentucky, and Missouri between July 2017 and December 2017. According to the report, the denials made up 5.8% of the ED claims submitted from those states.

    However, the report also found Anthem overturned most claims Missouri members appealed each month between July 2017 and November 2017. Further, the rate of overturned denials increased monthly, reaching a high of 73% in November 2017, according to the report. The report said, "Data show similar results ... [for] Kentucky and Georgia." The report also notes ED claims denials fell "sharply" following Anthem's move in 2018 to expand exemptions to the denial policy. Data from sample claims from ACEP suggests denials fell nearly to zero this year.

    According to the New York Times' "The Upshot," the report findings "indicat[e] Anthem has largely abandoned the avoidable visits policy."

    Jonathan Kolstad, an associate professor at the Haas School of Business at the University of California, Berkeley, said Anthem's announcement of the policy might save money, even if the policy is not enforced. "You may get as much or more bang for your buck frankly by just telling people you're not going to pay."

    Separately, Jill Becher, an Anthem spokesperson, said, "Anthem is committed to our avoidable [ED] program because the costs of treating nonemergency ailments in the [ED] has an impact on the cost of health care for consumers, employers, and the health care system as a whole." She added, "Anthem has made, and will continue to make, enhancements to ensure consumers are receiving the right care at the right place and time" (Livingston, Modern Healthcare, 7/17; Baker, "Vitals," Axios, 7/18; Sanger-Katz/Abelson, "The Upshot," New York Times, 7/19; McCaskill report, 7/19; McCaskill release, 7/19).

    Here are the 15 tactics to reduce avoidable ED utilization

    Non-emergent and primary care-treatable ED visits make up a significant portion of avoidable ED volumes. Many of these patients lack access to alternative care or assume the ED is the only place that can effectively meet their care needs.

    This research report compiles 15 tactics to meet these objectives and reduce avoidable ED utilization.

    Download Now

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