The passage of the prudent layperson standard in Maryland became a rallying point for other ACEP chapters. The push for passage of the standard in other states served as the impetus for many ACEP chapters to hire professional lobbyists, create chapter health policy committees, and sponsor emergency medicine “Days on the Hill” to advocate for the standard.

Mr. Chaney also tells a story of his presenting this issue at a meeting of the National Council of State Legislators in 1994. At that time, no other medical specialty or group representing the larger house of medicine, including the American Medical Association (AMA) or the American Hospital Association (AHA), had any policy or official position on the issue. Understanding that building a coalition behind an issue is critical to successful advocacy, ACEP began working through ACEP’s delegates in the AMA Young Physicians Section and AMA Council on Medical Service, resulting in the passage of an AMA resolution in support of the prudent layperson standard. Both the AHA and AARP subsequently developed similar policies in support of the standard.

As other ACEP chapters were having success at the state level, success at the federal level came in 1997 with the passage of the federal Balanced Budget Act (BBA) of 1997. With then-Rep. Ben Cardin of Maryland as the primary sponsor, the BBA extended the standard to all Medicare plans and Medicaid managed care plans (but not Medicaid fee-for-service). The BBA included the language that we all recognize today:

The term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such 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:

1. 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,
2. serious impairment to bodily functions, or
3. serious dysfunction of any bodily organ or part.

The standard was extended to all federal health plans in 1998 by executive order of President Bill Clinton. With the passage of the Affordable Care Act in 2010, the standard was extended to all insurance plans regulated under the Employee Retirement Income Security Act (ERISA) and qualified health plans in the state Exchanges. To date, 47 states (all except Mississippi, New Hampshire, and Wyoming) have passed laws making some kind of prudent layperson standard mandatory in their state. Together, these laws protect almost all patients. The only patients who are not covered by the combination of law, regulation, and executive order are those patients in Medicaid fee-for-service.

Latest Attacks on Prudent Layperson

Despite the multiple layers of federal and state protection, patients and providers have been under increasing attack by government and private health care insurers. In 2011–2012, the Washington State Medicaid agency attempted to limit access to emergency care for Medicaid beneficiaries by limiting the number of allowed ED visits and denying payments based upon a long list of “nonemergent” diagnoses. Most recently, Anthem BlueCross BlueShield has begun enforcing statewide policies in Georgia, Missouri, and Indiana that deny coverage for care provided in the emergency department based upon the “patient’s presenting symptoms and the final diagnosis.”