Application of Prudent Layperson Standard to Patients’ Access
to Emergency Care Gains Acceptance But Still Faces Hurdles

By Elaine A. Lisko, Health Law & Policy Institute

Congress is currently considering at least seven bills that require private health insurance coverage for emergency services, without regard to prior authorization, based on a prudent layperson standard. Congress has already applied this standard to emergency care for Medicare and Medicaid patients. See 42 U.S.C. §§ 1395w-22(d)(3)(B) & 1396u-2(b)(2)(C). Among the issues that arise in enacting and enforcing emergency care legislation based on this standard are: (1) how is "prudent layperson" to be defined; and (2) how can compliance be ensured.

The pending bills take one of two forms. The first form mandates that a health insurance issuer shall not require "prior authorization for items and services furnished in a hospital emergency department to an enrollee … with symptoms that would reasonably suggest to a prudent layperson an emergency medical condition." The issuer is required to cover non-emergency services as well as emergency services where the prudent layperson standard is satisfied. In essence, the issuer is required to cover emergency care based on a patient’s presenting symptoms, not the final diagnosis.

The second form also mandates coverage of emergency services, but provides greater detail regarding the types of conditions that might cause a prudent layperson to seek emergency care. It defines a covered "emergency medical condition" as "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in—(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment of bodily functions, or (iii) serious dysfunction of any bodily organ or part." The Medicare and Medicaid emergency care provisions that Congress has already enacted fall within this second category.

The seven referenced, pending bills and their forms, status, and sponsors are:
 
Bill No. Bill Title Bill Form Bill Status Bill Sponsor
H.R. 1415 Patient Access to Responsible Care Act of 1997 (PARCA) Mandates coverage without defining "prudent layperson" or what constitutes an "emergency medical condition" Referred to Committees on Commerce and on Education and the Workforce on April 23, 1997; Referred to Subcommittee on Health and Environment on May 2, 1997; Referred to Subcommittee on Employer-Employee Relations on May 9, 1997; Subcommittee hearings held on October 23 & 28, 1997; No floor action taken Norwood

(with 234 cosponsors)

H.R. 3009 Health Care Consumer Protection Act of 1997 Mandates coverage without defining "prudent layperson" or what constitutes an "emergency medical condition" Referred to Committees on Commerce, on Ways and Means, and on Education and the Workforce on November 9, 1997; Referred to Subcommittee on Health and Environment on November 20, 1997; Referred to Subcommittee on Health on November 24, 1997; Referred to Subcommittee on Employer-Employee Relations on December 10, 1997; No floor action taken Pallone

(with 31 cosponsors)

S. 644 Patient Access to Responsible Care Act of 1997 (PARCA) Mandates coverage without defining "prudent layperson" or what constitutes an "emergency medical condition" Referred to Committee on Labor and Human Resources on April 24, 1997; Committee hearings held on May 20, 1997; No floor action taken D’Amato

(with 5 cosponsors)

H.R. 815 Access to Emergency Medical Services Act of 1997 Defines what constitutes an "emergency medical condition" in mandating coverage Referred to Committees on Ways and Means, on Commerce, and on Education and the Workforce on February 25, 1997; Referred to Subcommittee on Health on March 3, 1997; Referred to Subcommittee on Employer-Employee Relations on March 14, 1997; Referred to Subcommittee on Health and Environment on March 21, 1997; No floor action taken Cardin

(with 240 cosponsors)

H.R. 4202 Health Quality and Fairness Act of 1998 Defines what constitutes an "emergency medical condition" in mandating coverage Referred to Committee on Commerce on July 14, 1998; Referred to Subcommittee on Health and Environment on July 23, 1998; No floor action taken Ensign

(with no cosponsors)

S. 356 Access to Emergency Medical Services Act of 1997 Defines what constitutes an "emergency medical condition" in mandating coverage Referred to Committee on Finance on February 25, 1997; No floor action taken Graham

(with 27 cosponsors)

S. 1712 Health Care Quality, Education, Security, and Trust Act (Health Care QUEST Act) Defines what constitutes an "emergency medical condition" in mandating coverage Referred to Committee on Labor and Human Resources on March 5, 1998; Committee hearings held on March 24, 1998; No floor action taken Jeffords

(with 3 cosponsors)

Physicians groups, including the American Medical Association (AMA) and the American College of Emergency Physicians (ACEP), support prudent layperson legislation. They view a patient’s ability to seek and receive coverage for emergency medical services as an important right. They appear to favor the bills that attempt to define a prudent layperson in reference to what constitutes an emergency medical condition. See, e.g., February 25, 1997 AMA News Release, entitled "AMA Applauds Introduction of ‘Access to Emergency Services Act,’" found at http://www.ama-assn.org/ad-com/releases/1997/aesa0225.htm; and March 2, 1998 ACEP News Release, entitled "Emergency Physicians Call for Passage of the Health Care QUEST Act," found at http://www.acep.org/press/PI980302.htm.

A number of states have also embraced the need for greater access to emergency care. At least nineteen states have enacted some form of prudent layperson legislation. States that have considered but not enacted such legislation cite the arbitrariness and ambiguity of the prudent layperson standard as a principal roadblock. Consequently, effective state and federal legislation requires that the standard be adequately defined.

Among the states that have adopted the prudent layperson standard are:

In addition to an adequate definition of the standard to be applied, compliance is essential to making the legislation effective. Compliance can be achieved, in part, by educating consumers of their right to visit an emergency room if they believe that their health is in danger. This is especially important for the elderly who are more likely to suffer from conditions that require treatment within a few hours (e.g., anti-clotting agents for strokes). Some states require health insurance issuers to advise their enrollees of their right to access emergency care in issuing policies. Others are considering more general forms of publicity. Compliance can also be achieved by ensuring that issuers are provided with and base their coverage determinations on information regarding presenting symptoms, since the symptoms, not the final diagnosis, control.

Congress appears committed to providing access to emergency medical care. Whether this commitment will result in greater access depends to a large extent on how the prudent layperson standard is defined and how compliance is affected.

08/27/98