New BCBSTX ER Patient Penalty Policy Goes Into Effect Today

Statement from Rhonda Sandel, RN, CEO of Texas Emergency Care Centers, and Board Member of the Texas Association of Freestanding Emergency Centers (TAFEC):

Houston, Texas (August 6, 2018)—On April 18, 2018, Blue Cross Blue Shield of Texas (BCBSTX) announced a new “HMO Emergency Benefit Management Process.” Citing that their members were using the ER “for things like head lice or sprained ankles, for convenience rather than for serious or life-threatening issues,” the company announced the creation of a new policy that greatly restricts Texas patient access to the Emergency Room (ER).

Initially issuing an edict that their “fully insured group and retail HMO members may be required to pay for the entire emergency room (ER) bill if they go to an out-of-network ER as a convenience,” they ultimately decided to alert their more than five million policyholders in Texas of ways they could avoid using the emergency room.

While the reasons for issuing this intimidating, anti-patient, anti-ER policy were presented as positive (saying that non-essential ER use by members “drives up cost for our members” and taxes “limited ER resources”), in reality, what they were doing then and now served to accomplish just two things—and neither are to the benefit of Texans: drive down the use of ER care (regardless of need) and increase the profits of Texas’ largest insurance provider at the expense of everyday Texans and their medical providers.

An attack on state and federal law, this policy—which was originally scheduled to go into effect on June 4, 2018, created so many questions and concerns for the Texas Department of Insurance (TDI), that the Department decided this patient penalty policy could not go into effect at the time.

As a result, the Department delayed its implementation sixty days so that a full review could be conducted and proven assurances could be made that patients would not have their rights violated with this new policy, but the reality is, this harmful policy that violates existing law was allowed to go through because TDI failed in its responsibility to protect Texas insurance consumers.

TDI is charged with protecting Texas consumers and this decision is an abdication of responsibility to adhere to the law and ensure the safety of Texas patients.

So as a result, today—August 6^th—is a day that will live in infamy for Texas consumers, and specifically, Texans seeking emergency care in communities throughout our state.

This BCBSTX policy—approved by TDI—is a clear violation of the Prudent Layperson Standard, which states that emergency care is to be covered for any patient (i.e. a prudent layperson) who thinks his or her health is in, or could be in, serious jeopardy, whether or not that care is provided at an in-network or out-of-network emergency facility.

And those emergent conditions are not defined by insurance companies that “Monday Morning Quarterback” and possibly alter the validity of an attending ER physician’s diagnosis of his or her patient’s condition.

More to the point, the law is written clearly and unequivocally to state that if the average person thinks they are having a medical emergency—based solely on their symptoms—then it shall be treated that way by their insurance company, and thus, appropriately covered and paid.

The mission of the Texas Department of Insurance is to “protect insurance consumers by: Regulating the insurance industry fairly and diligently. Promoting a stable and competitive market. [And] Providing information that makes a difference.”

By permitting this harmful policy to go through—TDI is allowing for insurance consumers’ rights to be violated, and potentially putting everyday Texans in clinical and financial distress. This BCBSTX ER patient penalty policy breaks the law and TDI is now complicit in that. It interferes with the physician-patient relationship, and clearly violates the Corporate Practice of Medicine.

An insurance company cannot deny Texas patients their legally given rights. Fully funded HMO policies in Texas are not exempt from the Prudent Layperson Standard. This new policy is also discriminatory in nature and extremely harmful to patients from a health, safety, and financial standpoint.

As cited by the Houston Chronicle earlier this year, Dr. Robert Morrow, president of BCBSTX’s Houston and Southeast Texas office, previously said its patient penalty policy program grew “out of a need for increased review of emergency room claims to help weed out people using expensive emergency room care as a ‘convenience’ for non-emergency treatments rather than going to an urgent care clinic or waiting to see their primary care physician during office hours.”

Morrow then went on to explain “that under the program, all out-of-network emergency room claims for HMO members will be subject to a post-treatment review by an in-house doctor employed by the insurance company to determine why they chose an emergency room for treatment, especially if other less expensive options were available.”

Yet, he “added that a claim will not be denied based on final diagnosis—a stomach bug rather than appendicitis, for instance, but rather patient intent. He also said that if a patient feels wronged by a denial they can appeal the decision to the insurance company.”

But as the Chronicle noted, “HMO plans are not eligible for the state's mediation process.”

Days after these comments were made, TDI announced the sixty-day implementation delay of this anti-ER policy. As reported by The Dallas Morning News at the time a TDI spokeswoman had this to say of the decision:

“When you’re facing an unknown situation at 2 o’clock in the morning, you need to be able to act quickly. And that’s our interest...." she said, “making sure that someone isn’t later caught by a surprise bill for something they legitimately believed was an emergency.”

The question is now—what has changed?

As Dr. Douglas Curran, president of the Texas Medical Association, remarked at the time of the announced implementation delay: “We expect to see changes that explicitly acknowledge Texas' legal protections for patients seeking emergency care. We do not believe patients should be expected to self-diagnose to determine whether their symptoms are serious enough to warrant an emergency department visit.”

That is exactly right. And yet, TDI did nothing to uphold patient protections under the Prudent Layperson Standard since they first announced that there were too many questions about this patient penalty policy for it to go into effect as laid out in early June.

In a paid op-ed in Texas Tribune’s TribTalk on June 28, Dr. Esteban López,

Chief Medical Officer of Blue Cross and Blue Shield of Texas, wrote this: “Let me be clear: If you think you have a medical emergency, please seek immediate medical attention by calling 911, or by going to the nearest emergency center.”

If that was actually true, this policy would not have been produced in the first place. What is clear is this—patients will not be well served by this harmful policy. They are more likely than ever to second-guess their treatment options and there is an increased likelihood that some Texans will delay the need for critical care or won’t pursue emergency treatment when they most need it.

And if they do, there’s a greater chance that the costs associated with their legitimate ER care could be denied. Even if the claim is eventually paid, the delays and anxiety patients are more likely to endure will create an unnecessary burden on the men and women of Texas and potentially harm their wellbeing.

This violation of the Prudent Layperson Standard is egregious and it must be stopped. If the Texas Department of Insurance has decided that its mission of protecting Texas insurance consumers no longer applies, we are hopeful that the Texas Legislature will see the need to protect their constituents—and will move to put a stop to this catastrophic, anti-patient, anti-ER policy. The eyes of 28 million-plus Texans are upon you.