Over the last few months, Anthem, the nation’s biggest health insurer, has informed customers in several states that if they show up at the emergency room with a problem that later is deemed to have not been an emergency, their ER claim won’t be paid.

The policy has generated protests from numerous physician groups, including ER doctors, as well as pointed questions on Capitol Hill and among state regulators. So Anthem has taken the obvious next step: This year, it’s rolling out the policy in three additional states. Prior to Jan. 1, the policy was in effect in Georgia, Missouri and Kentucky. This year, it’s adding New Hampshire, Indiana and Ohio. More states may follow.

Medical experts say the policy places an insupportable responsibility on ordinary customers to diagnose themselves before turning to the ER for treatment.

Patients are not physicians. Sen. Claire McCaskill (D-Mo.)


Some are also concerned that patients who have experienced claim rejections in the past might be discouraged from returning to the ER for a recurrent condition or a new one, a decision that could have life-threatening implications.

“Patients are not physicians,” Sen. Claire McCaskill (D-Mo.) lectured Anthem CEO Joseph R. Swedish in a Dec. 20 letter seeking documentation of how the company arrived at its policy and how it is being applied. “Anthem’s policies are discouraging individuals from receiving needed care and treatment out of fear they may personally be fully financially responsible,” McCaskill wrote, “even though they have insurance.” McCaskill asked for the material to be submitted by Jan. 19.

Anthem refused to say how it has responded to the letter, and McCaskill’s office didn’t respond to a question about whether the company met the deadline.

Anthem says its policy is designed to save money by reducing unnecessary ER care. The goal, it says, is “to reduce the trend in recent years of inappropriate use of ERs for non-emergencies.”


A spokeswoman for Anthem’s Georgia program told me last year that the policy wouldn’t apply when the patient is 14 or younger, an urgent care clinic isn’t located within 15 miles, or the visit occurs on a Sunday or holiday. She said it’s aimed at manifestly minor ailments — “If you had cold symptoms; if you have a sore throat,” she said. “Symptoms of potentially more serious conditions, such as chest pains, could be seen at the ER even if they turn out to be indigestion.”

But that doesn’t fit well with a policy that threatens patients with a big bill if they guess wrong. And many patients may not be aware of the exemptions for weekend visits, for younger patients, or for those not located near an urgent care clinic. They could be discouraged from visiting the ER, too.

What’s especially unclear is how Anthem’s policy is supposed to correspond to two important legal safeguards for patients. One is the Emergency Medical Treatment and Labor Act of 1986. EMTALA, as the act is known, requires emergency departments to screen, stabilize or treat anyone showing up at the ER, regardless of their ability to pay.

EMTALA was designed as an anti-dumping law to prevent for-profit hospitals from fobbing off indigent patients to public hospitals without treating them first. The rule imposes costs for care on hospitals that treat uninsured patients; hospitals justifiably are concerned that Anthem’s policy could impose costs for insured patients, too.


“Anthem expects us to screen their patients in the ER,” says Jonathan W. Heidt, an emergency physician in Columbia, Mo., and president of the state chapter of the American College of Emergency Physicians, “but won’t guarantee they’ll pay for the treatment.”

The second safeguard is the “prudent layperson” rule, which requires insurers to cover ER visits made by a member who resorts to the ER for a condition that the average person would consider a possible emergency.

Anthem told me in an emailed statement that a company medical director will review suspect ER claims by applying the prudent layperson standard to “claim information and medical records” submitted by the hospital, but that leaves a lot of room for dickering, in a process in which the patient, facing an unpaid charge that could be thousands of dollars, is almost certain to be at a disadvantage.

In Missouri, according to Heidt, judgments on ER claims appear to be made by Anthem nurses or other medical professionals based on the diagnostic codes entered on claims documents. But that’s insufficient to show whether an ER visit was appropriate. In one case Heidt reviewed for his medical group, a patient was hit by a car, transported by paramedics to the ER on a backboard and with a neck brace, given a CAT scan and X-rays, and eventually found not to have suffered a serious injury. The patient was discharged with a diagnosis of bruises and abrasions. Anthem denied the claim.


A list of conditions that Anthem warned Indiana hospitals might warrant claims rejections numbered more than 120, including bronchitis, contusions, sprains and low back pain, any of which might herald more serious conditions; a more detailed list reportedly obtained for Missouri by physicians in that state ran to more than 1,900 conditions, including sprains and injuries of limbs, bone and muscles.

Medical experts have found that ER discharge diagnoses can be virtually useless in determining whether an ER visit was made for a “non-emergency” reason. A 2013 study of nearly 35,000 ER visits found that the vast majority of patients appeared with complaints that could have warranted an ER examination.

“Patients present to the [emergency department] with … complaints, symptoms and signs,” observed the authors, “but usually not with diagnoses.” They found that those relying on final diagnoses are “unable to accurately identify ‘non-emergency’ ED visits.”

That doesn’t surprise Heidt. He says that in studying claims denied by Anthem for his ER medical group, he concluded that more than half of the visits were reasonable, about 45% “were in the gray zone,” and fewer than 5% could have been treated outside the ER. “I’m a board-certified trained doctor of emergency medicine,” he told me, “and I have trouble looking at the ER note and knowing what the patient was thinking at 3 o’clock in the morning, let alone trying to figure it out from a claim form.”


None of these concerns has yet stayed Anthem from expanding a manifestly anti-consumer policy. Only state regulators can do that, and it’s time they stepped in.

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