Starting July 1, some Medicaid enrollees could be fined for going to a hospital emergency room if they end up not actually having an emergency. The new policy is part of bigger changes to the Medicaid program led by Governor Matt Bevin.

The penalties apply to adults who gained coverage after Kentucky expanded Medicaid, such as adults without dependents, or some parents who are in families that make between 54 and 138 percent of the poverty line.

“The intent of the policy is to reduce inappropriate emergency department use and educate individuals about the most appropriate setting for their health care needs,” Doug Hogan, a spokesman for the Kentucky Cabinet for Health and Family Services, wrote in an email.

Medicaid, the state-federal health care program for low-income and disabled Americans, is paying for a bigger chunk of ER visits since the health insurance program expanded in 2014. In 2015, for instance, almost 47 percent of the ER visits in Kentucky were paid for by Medicaid, up from about 30 percent in 2012, according to a report by the Foundation for a Healthy Kentucky.

Here’s how it’ll work: Enrollees will be given a “My Rewards” account. If the state deems an ER visit as unnecessary, My Rewards dollars will be deducted from that account, ranging between $20 to $75. That account will also be used to earn “dollars” for dental and vision services, since these Medicaid enrollees are losing automatic coverage of those benefits.

Enrollees could also make a co-payment if they don’t have a My Rewards account.

If an enrollee calls their insurance company nurse hotline before going to the ER, that penalty will be waived, even if the ER visit isn’t for an emergency.

Here’s who could be affected: Parents earning between 54 percent and 138 percent of the poverty line;

Adults without dependents.

Pregnant women, former foster care youth and enrollees who obtain a “medically frail” exemption will have access to a My Rewards account, but won’t face these penalties.

Determining A ‘Non-Emergency’

There’s debate about what percentage of emergency room visits are unnecessary. The answer depends on where the information comes from.

Health care researcher Truven Health Analytics analyzed millions of ER claims from 2010 and found 71 percent of visits were avoidable or unnecessary. The American College of Emergency Physicians, meanwhile, says only about 3.3 percent of ER visits are “avoidable.”

There’s also a difference in how the state, an ER doctor and a patient define “non-emergency.”

“There are very few patients who come to the ER who truly know that they didn’t have an emergency right up front,” said Dr. Lisa Maurer, an emergency room doctor in Wisconsin.

Maurer understands that Kentucky’s new policy is supposed to discourage unnecessary ER visits but she worries it will deter patients who truly need to come.

“We want to make sure that our patients feel that if they’re having an emergency, they can come to the emergency department,” Maurer said, who is also on the state legislative-regulatory committee at the American College of Emergency Physicians.

Dr. Ryan Stanton works as a doctor in an emergency room in Lexington. He agrees with Maurer that people can’t always tell when something is an emergency. To regular people, conditions that a health insurer or an ER doctor might not see as an emergency, is to a patient, an emergency. Stanton used the example of patients with high blood pressure who fear they are on the verge of having a stroke.

“We’re hearing on the radio these ads about blood pressure causing stroke, and you need to go to the ER right away,” said Stanton. “But blood pressure is rarely an emergency. But to the lay public, blood pressure is a stroke waiting to happen.”

A visit because of high blood pressure and fear of a stroke could be classified as a non-emergency if Stanton finds the patient wasn’t actually unstable or about to have a stroke.

An Emergency In ‘Access to Care’

“How many people do we have that call the family doctor, and the receptionist says, ‘If you can’t wait three days to get an appointment with us, then just go to the ER?’” asked David Wesley Brewer, former president of the Kentucky chapter of the American College of Emergency Physicians.

Brewer said another reason people come to the ER, even if they know know it’s not an emergency, is because Medicaid enrollees have a hard time finding a primary care practice with immediate availability. The Truven Health analysis found that of the 71 percent of what it deemed “unnecessary” ER visits, more than 40 percent of those people could have been safely treated in a primary care setting.

And locally, at the University of Louisville Hospital, two thirds of ER visits occur after hours, when cheaper alternatives like primary care offices or free clinics are closed. And the vast majority of visitors, the hospital said, have either been directed by their primary care office/insurance nurse line to go to the ER, or have a time sensitive medical need.

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Stanton, the ER doctor in Lexington, said most primary care practices accept private insurance and Medicare, but Medicaid is another story.

“Very few clinics accept Medicaid, or they’ll take a small amount [of patients],” said Stanton, adding that the Medicaid pay rate is the lowest for any type of insurer. “Most people don’t want to go to the ER, it’s not like it’s Disney World. It’s one of the only practical options for most people.”

But the cost of an ER visit is much higher than a primary care visit. The average cost of an ER visit was $1,316 in 2010, while the average office visit cost was $145, according to the Truven Health analysis. That cost savings is what Gov. Matt Bevin initially said was the objective behind changing the state’s Medicaid system, though he recently said saving money is no longer the goal.

Doug Hogan with the state said the policy is about educating people about the high cost of the emergency room.

“Please know that this policy is intended to educate members about the high cost of the hospital emergency department and direct them to the most appropriate care setting to meet their needs,” Hogan said.

Directing Patients To Cheaper Care

Among the changes in Kentucky’s Medicaid waiver, the state gave hospitals partial responsibility in directing patients to more appropriate care settings. What is known, however, is that hospitals won’t be allowed to turn away patients at the door if it seems like there’s no emergency. Only when a patient has been seen and evaluated will the state direct hospitals to educate the patient on alternative settings. But this is tricky.

The Emergency Medical Treatment and Labor Act (EMTALA) was passed in Congress in 1986, preventing hospitals from turning away patients because of their inability to pay.

“We’re instructed by federal law – EMTALA – to see everyone who comes in with the impression of an emergency,” said Maurer, the ER doctor from Ohio. “So any talk of going to other facilities for seeking their care, could potentially be a conflict with the federal regulation.”

The state said the new policy does not violate EMTALA because an ER is only instructed to educate patients after an evaluation is done and before any treatment takes place. But the evaluation can be where most of the ER work takes place: lab tests, blood work, a physical exam, stabilizing the patient.

“Someone comes in with shortness of breath, and perhaps 45 minutes into their stay we could be fairly certain that they don’t have a heart attack,” said Maurer. “But are we done evaluating them to see why they are short of breath? Certainly not.”

Using this example, Maurer said, final diagnosis could very well end up being a non-emergency. But to not treat the patient for whatever non-emergency condition that led to shortness of breath would be medically unethical, she said.

Brewer, with the Kentucky chapter of the American College of Emergency Physicians, said the possibility of an EMTALA infraction will likely take a front seat to the state’s requirements to educate patients about alternative settings.

“An EMTALA violation can be career-ending, versus arguing with the state Medicaid [program] is not good, but in the scheme of things, it’s less onerous,” he said.

Kentucky Hospital Association

More Information Needed

The state has not yet released many details on what the process will look like for hospitals. U of L Hospital also said it doesn’t have answers yet on this specific policy or the broader changes.

A spokeswoman for Baptist Health, a large hospital chain in Kentucky, said it was too early for them to comment on how their hospitals will adjust their medical practices.

“We are still in the process of going through all of this and haven’t reached any consensus on how best to comply with these types of changes with Medicaid,” said Baptist Health spokesperson Kit Fullenlove.

Brewer said he thinks the policy could work to direct patients with true non-emergencies out of the ER if there’s a massive education campaign for enrollees. Stanton said it’ll only work if there’s a primary care office they can send the patient to that has actual availability.

Maurer, meanwhile, said “it makes more sense for patient safety, legally and ethically that we should provide the appropriate care. And on the back end, make sure they understand how to navigate the health care system for non-scheduled care appropriately.”