A program announced by United Healthcare in early June to deny or limit coverage to emergency department claims retroactively deemed non-emergent may never get off the ground thanks to a provision in the Biden administration’s first regulation implementing the No Surprises Act.
The UHC program, which would retroactively assess ER claims to determine “medically necessity” and then deny or limit coverage based on those findings, was supposed to take effect on July 1. Industry backlash led the payer to postpone implementation until at least the end of the COVID-19 public health emergency (PHE), saying it would use the additional time to “educate consumers, customers and providers on the new program and help ensure that people visit an appropriate site of service for non-emergency care needs.”
According to Healthcare Dive, the delayed UHC policy will assess claims “based on a patient’s presenting problem, the acuity of services performed and other complicating factors.” They would also allow providers to refute denials by attesting that visits met the prudent layperson standard, a federal policy requiring payers to cover ER care based on presenting symptoms and not the final diagnosis.
“If the attestation is submitted within the required time frame, the claim will typically be processed according to the plan’s emergency benefits,” claims UHC in the policy announcement that has since been removed from their website.
But that doesn’t satisfy provider groups, who have fought other payers over similar practices because they believe they actually violate the prudent layperson standard. The American College of Emergency Physicians (ACEP) is one such group.
“Although the new policy claims to take into account the PLP standard, it does so by including an attestation process after an initial claim is denied. A policy of ‘deny first,’ ‘attest later’ is in itself a clear violation of the PLP standard and will undoubtedly harm patients,” writes ACEP, along with several other provider groups, in a letter to Brian Thompson, UHC Chief Executive Officer. “It will have a chilling effect on patients’ decisions to seek care, whether for themselves or for a loved one. It will take hearing only a few stories of neighbors, friends, or co-workers who were unexpectedly left with paying an entire ED bill after coverage was denied by UHC to make policyholders think twice about seeking care in an emergency. Such hesitation could be life-threatening or result in even greater costs to the healthcare system down the road.”
No Surprises Act Regulations
The No Surprises Act Interim Final Rule (IFR) seems to agree with the provider groups. According to Jeffrey Davis, Director of Regulatory Affairs at ACEP, the IFR “strongly re-enforces the prudent layperson standard” and mentions these “bad payer practices directly and explicitly,” maintaining that the practice of denying claims based on a final diagnosis is “inconsistent with the emergency services requirements of the No Surprises Act and the Affordable Care Act.” As well, the IFR affirms that a prudent layperson determination should be made before an emergency services claim is initially paid or denied, not retroactively.
Another “bad payer practice” that isn’t addressed directly in the IFR is downcoding. Downcoding occurs when payers pay a claim at a level below what is submitted on the claim. According to Davis, ACEP and EDPMA (Emergency Department Practice Management Association) “have strongly pushed back against downcoding policies, arguing that there are clear documentation standards and guidelines that dictate what level of service should be included on the claim.”
Downcoding may come into play under the No Surprises Act because the so-called quality payment amount (QPA) that is used to determine cost-sharing requirements for patients and the total out-of-network amount in the resolution process is calculated from a number of factors, including the service provided. Unless the Center for Consumer Information and Insurance Oversight (CCIIO) and other federal agencies require health care plans to base the QPA on the CPT codes that are included on the initial claim, payers may try to use a downcoded CPT code that would allow them to pay less, even in the resolution process, says Davis.
As of now, UHC is still planning to go ahead with its emergency department program sometime after the end of the COVID-19 PHE. Whether or not that actually happens may depend on final rulemaking of the No Surprises Act or possibly legal action, which is how ACEP addressed a similar program by Anthem back in 2018.
For more information, review the following resources:
- UHC’s edited announcement about their planned program
- “UnitedHealthcare may retroactively reject ‘non-emergent’ ER claims under new coverage policy” by Paige Minemyer for Fierce Healthcare
- Industry group letter to Brian Thompson, UHC Chief Executive Officer
- “UnitedHealthcare delays controversial ER policy following backlash” by Rebecca Pifer for Healthcare Dive
- “Health Leaders to Nation’s Largest Private Insurer: Abandon Dangerous Policy to Deny Coverage for Emergency Care” from ACEP
- “The Biden Administration Issues First Regulation Implementing the No Surprises Act: Highlights and Some Perspective” by Jeffrey Davis, Director of Regulatory Affairs at ACEP
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