The legal concept of a “reasonable person” or “prudent person” stems back to the early 1800s in consumer contract law. It was used as a basis of fairness in decision-making since a person cannot be expected to be an expert in various matters and often has to act upon the information provided to them. The concept was used to ask, “What decision would a reasonable or prudent person make given the information at hand or provided to them?”
In the 1990s, there was rapid growth of managed care organizations (MCOs), such as health maintenance organizations (HMOs). The stated goal of these organizations was to decrease costs by preventing overtreatment and managing care, but in truth, many of these organizations began to limit access to care in order to save costs. In fact, primary care providers of patients were considered “gatekeepers” and their notification was required in order to authorize a patient’s visit to the emergency department, regardless of the patient’s complaint or acuity. It was not unusual to spend 45 minutes to an hour to obtain authorization or to have treatment denied after the fact.
As an emergency physician practicing during that era, I received a patient who had been in a major car crash that involved the death of another occupant in the vehicle. She had severe neck pain, along with tingling in her arms and legs. Her primary care provider, an internist and long-time colleague, wanted us to put her in a cervical collar and send her over to his office for evaluation. The patient, overhearing this on the speaker phone in the trauma bay, tried to get up and leave since her gatekeeper physician was refusing to authorize care. Of course, like any of you would, I refused the recommendation and cared for the patient. As terrible as this story sounds, it was all too common.
ACEP Takes Action
These abuses drove the need for change. According to ACEP history, in 1992, David Davis, MD, an emergency physician studying law in Maryland, learned about the concept of the reasonable or prudent layperson and felt that these same consumer protections could be extended to health care. The public, policymakers, and providers united in their disdain for the behavior of some MCOs, and the Maryland General Assembly passed the first Prudent Layperson Standard in 1993; it was first state to do so.
In truth, the standard is relatively simple. It is not based upon a final diagnosis, but rather the patient’s perceived medical condition. The standard states 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 placing the health of the individual or unborn child in serious jeopardy, serious impairment of bodily functions, or serious dysfunction to any bodily organ or part.
Armed with this success, ACEP state chapters began to push similar legislation in their states. ACEP went to the National Council of State Legislatures in 1994 to provide information, background, and model legislation to other states. All together, 47 states eventually passed prudent layperson standard legislation.
In 1997, the federal Balanced Budget Act extended the prudent layperson standard to Medicare and Medicaid managed care plans. In 1998, President Bill Clinton extended the standard to all federal health plans.
In 2010, the Affordable Care Act further extended and codified the prudent layperson standard to group and individual market health insurance plans. It is essentially the law of the land and the protection for our patients from unlawful and unethical practices by insurers who want to save money at the patient’s expense.
The Battle Goes On
Recently, emergency physicians have watched as Anthem BlueCross BlueShield has moved forward with policies that ignore the law. Despite multiple discussions with Anthem by ACEP leadership, legislators, and others, Anthem has made only small tweaks to its policy to deny payments retroactively, despite the fact that the patient has a policy providing coverage.
In July 2018, ACEP and the Medical Association of Georgia sued Anthem for its violation of this federally mandated patient protection.
Once again, ACEP is putting our patients’ health first and ensuring that this patient protection is upheld for those seeking emergency care.