In published comments on her study’s results, Dr. Raven went on to note: “If a triage nurse were to redirect patients away from the ER based on non-emergency complaints, 93 percent of the redirected ER visits would not have had primary-care treatable diagnoses. The results call into question reimbursement policies that deny or limit payments based on discharge diagnosis. The majority of Medicaid patients, who stand to be disproportionately affected by such policies, visit the emergency department with urgent or more serious problems.”

Finally, the National Hospital Ambulatory Medical Care Survey data from the Center for Disease Control indicate that for all ED visits, only 8 percent were characterized as “nonurgent.” This report will be further cited in the section below covering the response to questions relating to triage.

Emergency physicians are subject to two important statutes that circumscribe their scope of action: EMTALA and prudent layperson standards. EMTALA, the Emergency Medicine Treatment and Active Labor Act, is a provision of the Consolidated Budget Reconciliation Act (COBRA) which mandates that any patient presenting to an ED be subjected to a medical screening examination to determine the presence of a medical emergency. The scope of this screening examination is variable in function of the presenting complaint, but must extend to the utilization of all usual resources, including subspecialty consultation that might customarily be brought to bear on a similar complaint. Thus, all patients presenting to the ED must be seen by a healthcare provider and “screened” to determine whether a medical emergency condition exists. Failure to do so carries stiff federal penalties for both hospitals and providers themselves that are not covered by medical malpractice insurance. At the completion of the screening examination, if no emergent condition is found, the patient may be discharged to another venue for treatment; however, in practical terms, once the screening has been completed it is unconscionable for a health care provider not to personally undertake whatever requisite treatment the minor condition requires, including provisions for follow up care. Thus, presentation to an ED generally mandates a “full” ED visit, limited only by the nature and medical necessity of the presenting problem. And a number of such visits may be viewed as “unnecessary” retrospectively, but only retrospectively.

Prudent layperson statutes require third party payers to reimburse emergency medicine encounters based on the nature of the presenting complaint, rather than on the final diagnosis established after the encounter. Thus, gastroesophageal reflux causing chest pain but requiring a work up to exclude coronary artery disease cannot be denied for payment. Recent attempts by the Washington state Medicaid program to limit reimbursement to a set of discharge diagnoses were found to be unenforceable and incompatible with the provisions of prudent layperson standards. Interpretation of the potential seriousness of their symptoms is obviously subject to significant interpersonal variability in any cohort of prudent laypeople, but case law has generally tended to show a liberal interpretation of patients’ abilities to identify potential emergent medical conditions and to cast a wide net over the concept of prudence. In the pediatric population served by CHIP there are further barriers to the determination of potential emergent medical conditions ranging from inexperience in childcare, to general lack of medical sophistication on the part of parents, to variable levels of parental anxiety, to lack of access to medical resources in cases where reassurance alone might be sufficient. In this context, a number of resultant ED visits may be viewed as “unnecessary” retrospectively, but only retrospectively.