The Prudent Layperson Standard OR How I Learned to Keep Worrying About Anthem Breaking the Law

UPDATE 3/1/18: this post is now expanded into an article at EPMonthly:  Prudent Layperson, Meet Imprudent Payer

This is taken from my twitter thread on the prudent layperson standard which was in response to this article by Sarah Kliff in Vox on Anthem denying claims for ER visits based on final diagnoses.

The ACA made the prudent layperson standard federal law (ACEP piece). The prudent layperson standard is exactly what it sounds like: the definition of a medical emergency is that a normal person with an average knowledge of medicine thinks is an emergency -– the patient’s symptoms make it an emergency, not the final diagnosis. So severe abdominal pain that turns out to be “just” an ovarian cyst is, by definition, an emergency.

This is both obvious and good: the patient can’t tell if their severe abdominal pain is something terrible and dangerous like appendicitis or something that’s painful but not dangerous.

Notably: *severe pain alone* is by law a medical emergency.
[That's the case in the Vox article]. Here’s the rule if you’re interested:
Oh and it’s written into the legislation, too:
In fact, most states (32+DC) had state prudent layperson standards well before the ACA made it federal, including Indiana [where the case in the Vox article took place] [UPDATE 2/13/18: according to this article, 47 states + DC currently have prudent layperson laws.]

And once again, this is very important because we shouldn’t expect people to sit at home and worry about whether their severe pain is “just a cyst” or a ruptured appendix or an ovarian cyst causing an ovarian torsion or massive internal bleeding.

If the patient is acting like a “prudent layperson” and thinks they are having an emergency, then it is an emergency and the insurer has to cover the ER visit. Full stop.

This is really important because there is a huge overlap in symptoms between simple benign problems (ovarian cyst) and serious life threatening problems (appendicitis) -- see this fantastic paper by Maria Raven et al.

Anthem is breaking the law by denying claims based on final diagnoses in cases like this and it is terrible and people will get seriously hurt.

Tons of patients end up with final diagnoses like “acute viral bronchitis” which sound simple. Except when the patient is 80 and has CHF and COPD and it could easily be flu or pneumonia or a serious COPD or CHF exacerbation any or all of which could kill them.

See my previous post with a bunch more resources on how worthless and dangerous it is to try to decrease “unnecessary” ER visits.

UPDATE 2/17/18: Consumer Reports just published a piece on a patient getting denied ED coverage for severe headache that turned out to be "just" mastoiditis. 

On "unnecessary" ED visits: background reading

Here are a bunch of very informative pieces on why trying to blame excessive costs or busy-ness on low acuity patients in the ED is, at best, a misguided effort:

1) Great overview of many systemic issues which funnel patients to emergency departments, by Annals of Emergency Medicine Editor in Chief Mike Callaham*:
The Prudent Layperson’s Complicated and Uncertain Road to Urgent Care

2) We can't discern low acuity diagnoses from chief complaints, by Maria Raven, Robert Lowe, Judith Maselli, and Renee Hsia in JAMA:
Comparison of Presenting Complaint vs Discharge Diagnosis for Identifying “ Nonemergency” Emergency Department Visits and accompanying editorial by my (now) chair:
some intuitive, oversimplified, yet enduring beliefs about nonurgent patients in the ED should be abandoned. Trying to discern low-acuity conditions and putting up barriers to receiving care or denying payment after receiving care will work no better in future generations than in the past. Attention should be redirected away from penalizing patients, physicians, or hospitals when a condition turns out to be minor. Instead, the emphasis should be on integration across sites of care, especially for the most complex and most expensive patients.
and from his response to a Letter:
The reasons people visit the ED for care are often rational and understandable, driven by a perceived need for immediacy of treatment and lack of an accessible alternative. Many conditions treatable in primary care that are cared for inside EDs in the United States may reflect problems with alternative access to rather than inappropriate actions by the patient.
3) Low acuity ED visits is just not where the money is, by Peter Smulowitz, Leah Honigman and Bruce Landon, in Annals of EM:
A novel approach to identifying targets for cost reduction in the emergency department.

4) EDs aren't overcrowded because of low acuity patients; we are busy because of boarding -- patients we have seen & admitted in the ED and are waiting for their inpatient beds. (tons on this, here's one on how boarding-> crowding in Annals by Brent Asplin et al A conceptual model of emergency department crowding, and 2 of my blog posts 4A) here and 4B) here and 14 below)

5) And for those who suggest higher patient copays for low acuity ED visits, the famous RAND HIE, which shows that patients who have to spend more out of pocket decrease *all* care, both appropriate & inappropriate care (which isn't surprising, given Raven's study, above):

Here are a few studies that show that retail clinics tend to *increase* rather than decrease overall utilization (suggesting something like supply induced demand) and fail to lower (and probably increase!) ED use:
6) Why Retail Clinics Do Not Substitute for Emergency Department Visits and What This Means for Value-Based Care by Jesse Pines in Annals
7) Retail Clinic Visits For Low-Acuity Conditions Increase Utilization And Spending by J Scott Ashwood, Martin Gaynor, Claude Setodji, Rachel Reid, Ellerie Weber, and Ateev Mehrotra in Health Affairs. From what I hear from people who run EDs which opened urgent cares etc, the same holds true, but I don't have great data on that.

UPDATE 12/5/2017
8) Surprise! Uninsured people don't use the ED any more than those with insurance; rather, they use it the same. But, they use other health care less. By Ruohua Annetta Zhou, Katherine Baicker, Sarah Taubman, and Amy Finkelstein in Health Affairs:
The Uninsured Do Not Use The Emergency Department More—They Use Other Care Less

UPDATE 12/18/2017 & 12/25/2017
9) Another great new paper from Maria Raven and Faye Steiner: 1 in 4 patients in the ED were referred from an outpatient provider (and they're more likely to be admitted than other ED patients):
A National Study of Outpatient Health Care Providers' Effect on Emergency Department Visit Acuity and Likelihood of Hospitalization

10) and while finding (9) I found this great review by Raven et al in Annals showing ED visit reduction programs generally don't work:
The Effectiveness of Emergency Department Visit Reduction Programs: A Systematic Review

11) another British review showing putting "unscheduled care centres (UCC)" in the ED doesn't solve much, by Shammi Ramlakhan, Suzanne Mason, Colin O'Keeffe, Alicia Ramtahal, Suzanne Ablard in EMJ
Primary care services located with EDs: a review of effectiveness

12) This great episode of EM Over Easy on fundamental attribution error
13) David Foster Wallace's This Is Water.
The basic idea: when I cut someone off in traffic, I make excuses for myself (I'm late to work, the light is changing, etc etc) but when someone cuts me off, of course I think they're just a jerk. The less I judge patients for being in the ED, the less stress I have.

14) And here are my 2 blog posts on crowding:
A Spoon in the Bucket?
Empty the Dishwasher

UPDATE 1/29/2018
See my twitter thread on the prudent layperson standard [now here in blog form] which was in response to this article by Sarah Kliff in Vox

15) friendly reminder that the legal definition of a medical emergency is
"a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) so 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... placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; ...serious impairment to bodily functions; ...[or] serious dysfunction of any bodily organ or part.)"

If a regular person with no medical training thinks their symptoms are an emergency, it's an emergency and the insurer has to cover it.

16) it's legislated federal law in the ACA (text)

17) and here is the regulatory version (text)

(for both of these, ctrl+F prudent layperson) to find it

18) and before it was federal law for private insurers, it was state law in 32 states + DC (pdf from ACEP)

*COI: I am Social Media Editor for Annals which makes Mike my boss.