A recent Miami Herald article, as reprinted by InsuranceNewsNet, opened with a starkly written story about a South Florida mother driving nearly an hour to find in-network emergency care for her daughter after visiting an urgent care. The providers at the urgent care had warned her that the child’s appendix could rupture at any time. Unfortunately, the mother had to drive past two existing emergency rooms — both of which were close by — to find an in-network facility.
Members of Florida Blue and its affiliates can still seek emergency care at hospitals run by Broward Health and Memorial. Health insurers are required to cover emergency services at any hospital in the country as if it’s in-network, even if it’s out-of-network. But, “I don’t know what that means in real-life terms,” [the parent] said.
Questions and scenarios swirled in her head that January night: If [the child] was admitted into an out-of-network ER, would she have to fight with every doctor to get insurance coverage? Would she be forced to transfer hospitals? Would just the ER visit be covered — but the rest not?
This situation was used to highlight the choices patients faced in the wake of a provider network contract negotiation that failed — in this case, between Florida Blue and Broward Healthcare. But it’s not the best example, and for the reason that was stated in the article: health insurers are required to cover emergency services at any hospital in the country as if it’s in-network, even if it’s out of network.
That’s true; it’s based on a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA). Further, based solely on the information in this article, it appears that the mother could probably have gone to Broward Health Medical Center. Let’s take a deeper dive into why that is, and what likely would have happened had she done so.
EMTALA was designed for exactly this sort of situation.
EMTALA was passed in 1986 to prevent “patient dumping,” that is, hospitals turning away uninsured or underinsured patients in the midst of a genuine medical crisis. It applies to all hospitals that participate in Medicare, which describes 99% of the hospitals in this country. They are required to:
- Provide a medical screening exam to anyone who comes into the emergency department;
- Stabilize the patient if an emergency exists; and
- Not delay treatment while asking about insurance status or payment delivery.
The threshold for invoking EMTALA is often described as “anyone experiencing a life-threatening medical emergency.” But the law actually goes further than that. Case law has been established that recognizes that the average competent adult sometimes can’t determine whether a situation is a life-threatening medical emergency. Because of that, it has historically used a standard called the “prudent layperson.”
In a nutshell, the “prudent layperson” standard states that the level of decision making only rises to that of the average competent adult in this country. If that average competent adult has bona fide reasons to believe that any of the following are true, EMTALA will apply:
- The prudent adult has reason to suspect that failure to receive immediate treatment could potentially place someone’s health in serious jeopardy;
- The prudent adult has reason to suspect that failure to receive immediate treatment will cause serious or permanent impairment to a bodily function; or
- The prudent adult has reason to suspect that failure to receive immediate treatment will cause serious or permanent dysfunction of any bodily organ or part.
Acute appendicitis, if left untreated, can result in serious complications up to and including death from sepsis — and it can happen scarily fast. I can’t imagine any court in this country would say it doesn’t qualify for EMTALA coverage, particularly since the mother in the Herald article had already been to an urgent care, which had confirmed the diagnosis.
In many situations, if an urgent care suspects a life-threatening acute situation, they’ll call an ambulance themselves. But since I don’t know all the details, I can’t guess why they didn’t here — and I won’t try.
What happens if the emergency room is out-of-network?
The standard of care required from an emergency room is limited, but clear: the hospital must evaluate the patient and stabilize the emergency medical situation. Note that “stabilize” does not mean “cure.” It means that the patient is no longer in immediate danger.
In the case of acute appendicitis, “stabilization” often does require surgical removal of the appendix. The “watch and wait” approach is medically inappropriate and a medical professional who took this approach could be sanctioned for professional negligence.
But EMTALA only covers the hospital’s clinical actions. It doesn’t govern payment for their services. That’s where the ACA and the No Surprises Act (NSA) come in to play. These require that emergency services must be covered:
- Without prior authorization;
- At in-network cost-sharing levels; and
- Without balance billing the patient for any outstanding costs after insurance pays.
(The NSA specifically strengthened that last bullet.)
There are cases where “stabilization” does allow for transfer to an in-network hospital once the stable state is reached. Thus, a hospital transfer might be required. But if such a transfer is possible, it’s only done when the patient is stable, and it’s done under medical supervision. The patient’s health comes first.
While there’s no guarantee the child with appendicitis wouldn’t have been transferred, it wouldn’t have happened at the risk of her life. That sort of decision is situation-specific and would have been made based on a qualified medical opinion. (As it happens, the child was transferred, but not because of network considerations; the first in-network facility didn’t have a surgeon immediately available.)
Where does the confusion creep in?
The parent was legitimately confused, and not without good reason. After all, there had been a highly publicized dispute between her insurance carrier and Broward Health Medical Center. In a non-emergency situation, rules would have been considerably stricter: the fact that the hospital was out-of-network could reasonably lead to the conclusion that there was enormous financial risk. Her fear was justified. Before the NSA went into effect, balance billing from emergency physicians and providers wasn’t unheard-of at all. And medical billing is complex enough to intimidate all except the experts.
The difference in this case is that it was an emergency. The rules are different. To be fair, there are some exceptions and loopholes in the current legal framework. (The most significant one concerns ground ambulance transportation.) That’s why I’ve been modifying my statements above with words like “probably” and “likely.” There actually isn’t enough information here to determine if there would have been a problem.
Going forward, what is the best way to handle this?
The mother showed prudence by attempting to contact Florida Blue first. That alone shows she was trying to comply with network rules, not avoid or ignore them.
When a provider tells a parent their child’s appendix could rupture “at any time,” that’s terrifying. And a prudent parent would make decisions based on the medical information, not based on the status of any contract negotiations. Federal law, in the form of EMTALA, the ACA, and the NSA, supports them in doing so.
Had I gotten that call after hours, I would have told the mother: go to Broward. Go now, and have them call me in the morning to work through the paperwork.1 In essence, that summarizes the sequence of steps to be taken in a medical emergency:
- Go to the nearest emergency department. Let them evaluate and stabilize the patient.
- Provide your insurance information and address billing questions after the patient is stable.
Could I have guaranteed there would be no billing complications at all? No. As discussed above, limited exceptions still exist in the current legal framework.
But acute appendicitis is so squarely within the boundaries of EMTALA, the ACA, and the NSA, that the financial risk of seeking immediate emergency care would likely have been far lower than the medical risk of delaying it. If a billing issue had later come up, it almost certainly could have been addressed through normal insurance processes, particularly given that the insurer would have been required to pay as though the care had been in-network — and carriers are well aware of their statutory obligations.
That’s why I would have felt confident giving the parent that advice. And it’s also why consumers can feel confident that, in a true emergency, they have legal protections. When that’s the situation, the correct first decision is almost always the medical one.
- I actually have had this happen, though with a suspected heart attack. And that was the advice I gave. The health plan covered it without any problems at all.