In the history of the specialty of emergency medicine, there have been landmark pieces of legislation that have significantly changed the paradigm of how we practice. Perhaps the two most important have been EMTALA and the prudent layperson standard. EMTALA mandates the evaluation and stabilization of all patients who present to the emergency department, and the prudent layperson standard gives patients the protection to seek emergency care and provides hospitals and emergency physicians the assurance of payment for those services. While our obligation under EMTALA hasn’t lessened, the protection for patients and providers under the prudent layperson standard has come under increasing attack by government and private payers. Just like the fight to enact it 25 years ago, the need to protect the prudent layperson standard today is now a rallying point for the specialty of emergency medicine and the larger house of medicine.

History of Prudent Layperson

In 1986, EMTALA created a mandate that all patients be seen in the emergency department regardless of insurance status or ability to pay. Under EMTALA, hospitals could no longer deny people at least an initial evaluation and stabilizing treatment when they presented for care. Today, we understand why it was important to have EMTALA: to ensure that patients got treated fairly.

Although well-intentioned, EMTALA had a secondary and much more negative effect. Once health insurance companies realized that hospitals and emergency physicians were required by law to see all patients, the insurance companies, especially in the heyday of HMOs, began implementing policies that were harmful to patients and providers. Patients were required to get prior authorization approval before going to the emergency department. If, after an appropriate evaluation in the emergency department, the patient’s final diagnosis was felt to be “nonemergent” by the insurer, payments to the hospital and providers were retrospectively denied.

For several years, things were bad for patients and providers. Then, in 1992—according to Cal Chaney, former ACEP Director of State and Chapter Relations—Maryland emergency physician David S. Davis, MD, while pursuing his law degree, learned about the concept of “the prudent layperson” as it related to a consumer protection case. Under that precedent, if consumers used a product in a manner consistent with a prudent layperson, then they would be afforded protections if injured, even if they used it in a way that was not its original purpose. Dr. Davis contacted ACEP, and the movement to get the prudent layperson standard extended to ED patients was born. At the “twelfth hour” of the 1993 session, the Maryland General Assembly became the first state legislature to pass the prudent layperson standard for emergency department visits.

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.”

This practice of denying coverage based upon anything other than the patient’s perception of a medical emergency would be dangerous for patients and devastating to the practice of emergency medicine. ACEP is working with a number of external stakeholder groups, including Consumers for Quality Care, the Emergency Department Practice Management Association, and the AMA to mount a response to this latest threat. After 25 years of tireless work to protect our patients and our practice, we cannot allow insurers or regulators to undo the critical protections granted by the prudent layperson standard. These latest attacks should once again serve as a rallying point for the entire house of medicine to fight to make sure that the federal and state laws are enforced to keep our patients and the specialty of emergency medicine safe.