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.