Medicaid and the prudent layperson standard are under unprecedented attacks in states across the country, and ACEP is working hard to combat this threat to our specialty and our patients.

As you know, Medicaid is a federal/state program that has seen expenditures at the federal and state level grow considerably in recent years. Many health policy experts say that the current trajectory of Medicaid spending is unsustainable into the future, and yet significant growth of Medicaid is intended as one means of expanding coverage as part of the implementation of the Affordable Care Act (ACA). Studies show that Medicaid recipients, some of the most vulnerable people in our society, are disproportionate users of health care in the emergency department. Notwithstanding the intended expansion of Medicaid under the ACA, most states in the country are looking at ways to reduce coverage or expenditures, or both, in their Medicaid programs.

Some states are targeting the number of visits to emergency departments by Medicaid recipients or planning to reimburse only visits deemed to be “emergencies” (defined by the state)

after the fact based on a final diagnosis. These restrictions not only violate the prudent layperson standard, but also represent serious threats to the health care of these patients and the health of emergency departments needed to serve all patients.

ACEP’s Board of Directors is pursuing a comprehensive, multipronged approach to try to prevent the Medicaid program from being further negatively impacted and ensure that the prudent layperson standard is upheld. This will involve federal regulatory efforts, lobbying on Capitol Hill, state efforts, working with potential allies, pursuing a media strategy, research, and possible legal action.

Federal Regulation

A core objective is to get CMS to issue a pronouncement that requires states to adhere to the prudent layperson standard. It is clear that the prudent layperson standard applies to Medicaid managed care plans, which seem to be the predominant type of Medicaid in various states, but the standard may not apply to Medicaid fee-for-service. We will work to get CMS and the Obama Administration to stand firm on prudent layperson as an essential element for the provision and reimbursement of emergency medical care.

In September, ACEP sent a letter to Dr. Donald Berwick, who was the Acting Administrator of CMS, conveying “our serious concerns with the State of Washington Health Care Authority’s policy that cuts off payment.” In November, we worked with Sen. Ben Cardin (D-Md.), a champion of the prudent layperson standard, and Rep. Pete Stark (D-Calif.), author of EMTALA, on a joint letter to Dr. Berwick. They expressed their “strong opposition to Washington State’s Medicaid Plan.” Then in December, senior staff of ACEP and leaders of the Emergency Medicine Action Fund Board of Governors met with the new CMS Acting Administrator Marilyn Tavenner to express our concerns regarding the Medicaid crisis in Washington State and the need to adhere to the prudent layperson standard.

We will be having further conversations with Ms. Tavenner, with whom we have been impressed, about Medicaid and prudent layperson. We also plan for ACEP leadership to meet soon with Cindy Mann, who is the Deputy Administrator of CMS. We have invited Ms. Tavenner to speak at ACEP’s Leadership & Advocacy Conference and she is considering our invitation. We are encouraged by CMS’s recent action in blocking California from charging Medicaid patients for emergency department visits with a stated rationale that “it is inconsistent with the statute.” We are hopeful of persuading CMS leadership to use a similar rationale in enforcing prudent layperson in responding to certain states’ actions. However, in light of the severe budget challenges of numerous states, and the significant political pressure to cut Medicaid, it may be necessary for us to have conversations with more senior officials at the Department of Health and Human Services and make an appeal to health policy advisers in the White House to support a strong CMS position.

Outreach to Capitol Hill

We are following up with Sen. Cardin and Rep. Stark to urge them to seek a satisfactory response to their inquiry from November. We also intend to facilitate meetings with other key members of Congress who we believe have special interest or influence on Medicaid from an emergency medicine perspective, some of whom are from the states of Washington and Tennessee.

We are hopeful these members of Congress will support our requests to the Obama Administration and CMS to be more helpful on Medicaid. Depending on our discussions, we may request a Congressional hearing or GAO report focusing on the effects on patient access to care and effects on health for Medicaid recipients due to cuts and restrictions implemented by states. We will also emphasize the effect of state Medicaid reductions on “dual eligibles,” since 21% of all Medicare beneficiaries have dual eligibility for Medicaid.

At our Leadership & Advocacy Conference in May, one of the principal “asks” and matters of discussion in visits on Capitol Hill between our members and Congress will be support for Medicaid and the prudent layperson standard. Please try to attend the Leadership & Advocacy Conference, May 20-23, in Washington, DC. Registration is available now at www.acep.org/LAC. We need a strong turnout this year to be most successful in combatting this threat. We also need every member of ACEP to donate generously to NEMPAC, now more than ever, during this election year.

State Efforts

At the point of the spear in this crisis is the State of Washington, although Tennessee and some others are close behind. ACEP and the EM Action Fund have provided funding to the Washington chapter of ACEP for legal action against the Washington Health Care Authority. Our Washington chapter has engaged its state medical society and other allies in the effort to stave off caps on the number of Medicaid visits and reimbursement for emergency care. ACEP has provided this chapter and other chapters significant amounts of information about Medicaid and approaches to address this issue. There is also significant information posted on ACEP’s website. We will continue to be a resource to our chapters and to others who are fighting these battles in their own states, developing and providing them with talking points, potential strategies, and other resources.

Enlisting Allies

There are various organizations we plan to engage to try to develop a collaborative approach that would give us a better chance at success. We intend to have further discussions with the AMA and reach out to the National Medical Association. The American Academy of Pediatrics and possibly some other specialty societies may also prove to be good allies. We are encouraging our chapters to work with their state medical societies and state hospital associations. We will be having discussions at the highest level with the American Hospital Association and the Federation of American Hospitals. We will try to enlist support from organizations that are advocates for consumers, such as Families USA and AARP. In addition, there may be some religious organizations such as Catholic Charities USA that may be helpful allies since they provide services to the Medicaid population.

Media Campaign

Much of the media coverage these days is negative concerning Medicaid. It is our goal to try to gain support for the prudent layperson standard, as well as to educate reporters about the needs of the Medicaid population for access to care and the effects of bad policies on emergency medical care. Some of these media efforts include contacting influential health reporters at major media entities like The New York Times and USA Today; conducting a public opinion poll on Medicaid; doing focus group testing to guide a national media campaign; launching a letters-to-the-editor campaign through ACEP networks and allies; buying radio advertising around the Leadership & Advocacy Conference; obtaining media interviews for ACEP leaders; and coordinating with ACEP chapters to support media activities in states where Medicaid is under attack.

Research

We want to encourage data collection and research to support our advocacy on Medicaid. We will proactively encourage research and publication of papers by the Urban Institute, the Commonwealth Fund, RAND, Kaiser, and others. If Medicaid cuts are allowed to stand, it will be important to measure how they affect patients’ access to care, ramifications on overall health of the Medicaid population, and any negative effects on the emergency medical system.

Legal Challenges

We will continue to support, to the extent practicable, legal challenges mounted by our chapters, our members, and others in health care in the various states. We will get involved as an amicus party in federal and state courts where appropriate Medicaid cases are on appeal. It may also be necessary or appropriate at some point for ACEP to work with our members to bring a class action lawsuit or more targeted legal action against the federal government. The legal issues will vary from state to state depending on how state laws, regulations, requirements for public hearings, and other factors come into play.

As emergency physicians, we have some of the most difficult jobs in all of medicine. We want to provide the very best care possible for all of our patients. We take the federal EMTALA mandate seriously. We provide care 24 hours a day and see more than 130 million patient visits per year while consuming only 2% of all health care spending. Emergency medicine is a great value for our society. Consequently, it is particularly discouraging when the government targets emergency medicine and vulnerable Medicaid patients with ill-advised restrictions.

Thank you for all you do on the front lines of health care. Please know your College’s leadership is working diligently to support you in this Medicaid crisis. And please get involved with ACEP and your chapter to help our specialty and our patients address this crisis.

Dr. Seaberg is President of the American College of Emergency Physicians.