Citing Medicaid Limits, ED Docs Sue WA State

Emergency physicians in the state of Washington have filed a lawsuit against a state plan to classify more than 700 diagnoses as non-emergent, and limit Medicaid reimbursements to no more than three non-emergent visits to the emergency department each year.

"The state has been mandated to try to save $72 million over the next two years, and this will clearly impact emergency care," Stephen Anderson, MD, president of the Washington Chapter of the American College of Emergency Physicians, told HealthLeaders Media.

"The list at the moment includes chest pain, hemorrhage during miscarriage, infections of the leg that can result in amputation, passing out for no reason, heart arrhythmia. It's frightening."

Anderson says the new restrictions could impact healthcare access for the poor and those most in need of care in at least 19 other states that have worked with Washington State to develop the policy, which went into effect on Oct. 1. "If this plan goes into effect, other states will certainly follow suit," he said.

The emergency physicians have asked a judge in the Superior Court of Washington for Thurston County to slap an immediate injunction on the new restrictions. In a media release, ACEP spelled out its concerns about the suit, alleging that the state: 

• Has not implemented a rulemaking process that included stakeholder comments; yet the plan is being forced on hospitals and providers with no warning.
• Violated the requirements that this be a collaborative process as outlined by the legislature.
• Violated the requirements that this be a list of non-emergent diagnoses as outlined by the state legislature.
• Misconstrued the ability to bill patients for services. Federal law prevents physicians from meeting Medicaid requirements for billing patients through the Emergency Medical Treatment and Active Labor Act (EMTALA), and state law blocks hospitals from billing under charity requirements.
• Is violating the federal Prudent Layperson standard by applying it to managed care patients.

Because EMTALA requires emergency departments to examine patients seeking care, "we still have to see them and we have to make sure they don't have an emergency," Anderson says. "The problem is that sometimes it takes a full evaluation to figure out that this burning crushing chest pain is heartburn and not a heart attack. What the state is saying is yes by federal law you have to see them and do the work up, but when you're done with the work up, if it turns out it wasn't a heart attack then you aren't going to get paid for any of that."

Jim Stevenson, chief communications officer for the Washington State Healthcare Authority, says ACEP has "misrepresented a little bit" the new restrictions. "The code doesn't refer to all chest pains. It only refers to non-cardiac, non-specific, generalized chest pains," Stevenson says. "This is not someone who is coming to the hospital in the belief that there is an emergency. It would probably be someone who has been at the emergency several times before with the same complaint. Many of these un-generalized complaints do end up looking for narcotics as a treatment."

The Washington State Health Care Authority issued a statement explaining the new restrictions and noted that the three-visit limit would not apply to:

• Children placed by the department in out-of-home care with foster parents, relatives, or other caregivers
• Clients delivered to the ED by ambulance, police or EMTs.
• Visits for mental health diagnoses or for clients seeking detoxification services
• Visits that result in an inpatient admission, emergency surgery, or admission for observation. 

The authority said the program also created an "exception to rule" process by which hospitals can appeal non-emergency billings on the grounds of special circumstances.

"In point of fact, 97% of our clients can live very comfortably with this three-visit limit," Jeffery Thompson, MD, the authority's Medicaid's CMO, said in a media release. "The small number who exceed that limit are responsible for scores of visits – and most of them are for chronic conditions and complaints of pain – visits that usually end with a narcotics script."

Anderson says the new restrictions have the potential to "punish" that same 97% of Medicaid patients for the sake of clamping down on the 3% who allegedly abuse the system. "My bigger concern from a provider standpoint is that somebody is going to sit at home with their sick kid who has already had to go in three times, and now they're at home having trouble breathing," Anderson says.

"Or somebody is going to sit home with chest pains, or they are going to sit at home with a stroke. Some of these diagnoses are absolutely against the mission statement of the American Heart Association and the American Stroke Association about seeking care promptly."

Anderson says ACEP has alternative ideas for saving money that will not drastically impact care, including:

• implementing a stricter prescription narcotics policy for EDs that could save $30 million by reducing the number of people who come to the ED for pain relievers;
• increasing the use of psychiatric generic medicines, which could save the state about $130 million a year;
• increasing the use of generics in the emergency department;
• creating hotlines staffed by RNs who would steer patients to primary care alternatives.

"We want to save the state money because we shouldn't be at the table complaining unless we have alternatives," he said.