In its escalating fight against Anthem BlueCross BlueShield’s dangerous policy of retroactive denials of ED visits the insurer deems as “non-emergent,” ACEP has taken legal action. Joined by the Medical Association of Georgia, ACEP filed a lawsuit against Anthem’s BlueCross BlueShield of Georgia in July 2018 in federal court.

This action follows a yearlong effort by ACEP to protect the prudent layperson standard on behalf of its members and fight back against the policy that Anthem currently is enforcing in six states. These efforts have yielded significant progress: Anthem announced in February that it was expanding the “always pay exceptions” on the denials policy and would request a medical record for every potential denial; The New York Times ran a story on reactions to Anthem’s policy that featured data contributed by ACEP on denials in each state the policy was implemented in; and most recently, Sen. Claire McCaskill (D-MO) published a report on the Anthem issue for which ACEP also contributed information.

But even with Anthem’s changes to the policy, lives are still being endangered merely by its continued existence. Anthem policyholders are still being told by the insurer to “save the ER for emergencies, or you’ll be responsible for the cost.” Yet, as we all know, it is often impossible for emergency physicians, much less patients, to know based on a patient’s initial symptoms whether their condition will ultimately end up being emergent. Therefore, since Anthem continues to force patients to second-guess the decision to seek emergency care, ACEP and its leadership determined that further action was needed.

ACEP’s lawsuit asserts that Anthem’s policy violates the prudent layperson standard, which requires insurance companies to cover the costs of emergency department visits based on a patient’s symptoms and not the final diagnosis. Further, because the policy discriminates against those in protected classes, who utilize emergency departments more frequently and are disproportionally impacted by the financial stress created by having their claims denied, Anthem is also being sued for a violation of the 1964 Civil Rights Act. The lawsuit requests the court grant an injunction preventing Anthem from enforcing its destructive denial policy or retroactively denying benefits.

Stopping Anthem’s retroactive ED denials policy with this lawsuit is critical to protecting the prudent layperson standard and working to ensure other payers do not follow with their own similar dangerous policies. ACEP is currently also fighting back against BlueCross BlueShield of Texas’ new policy to deny coverage for its HMO patients who seek care for what it deems as non-emergent conditions at an out-of-network facility, as well as Medicaid managed care plans and state waiver applications that also erode the prudent layperson standard. ACEP continues to engage in efforts with federal policymakers to strengthen that standard and ensure it is appropriately enforced, as required under federal law.

Ms. Wooster is ACEP’s associate executive director of public affairs. Ms. Moore is ACEP’s general counsel.