See The Prudent Layperson Standard OR How I Learned to Keep Worrying About Anthem Breaking the Law and Prudent Layperson, Meet Imprudent Payer and of course On "unnecessary" ED visits: background reading.
In August, UHC announced they were going down the "insurers are probably breaking the law trying to dissuade people from going to the ER" path.
Here is their recently announced Coverage Determination Guideline.
And here is the AHA's response (the hospital group, not the cardiologists).
First, the wording is very careful & deliberate, and seems like they are gearing up to put more pressure here and get away within arguably the letter but not spirit of the law. If you're a West Wing or Oliver Platt fan, it reminds me of Babish saying "He did everything right. He did everything you do if your intent is to perpetrate a fraud."
They do appropriately define an emergency (or at least close enough to not set off alarm bells when I read this without checking the laws):
This is probably the most troubling bit:
As the AHA notes, the section on considering other factors -- tests, treatments disposition -- is concerning. It could all be fine if they're only using it positively (eg. if you're admitted, you're approved, no need to look further) but the lack of those things happening doesn't mean there wasn't a prudent layperson standard emergency so that's the rub. I would suspect they are going to use this kind of administrative data to identify visits to scrutinize or just deny off the bat, making ERs & hospitals have to appeal & justify. If nothing else, another layer of administrative burden to dissuade providers chasing appropriate reimbursement, and as someone put it well previously, essentially make providers do unpaid claims work so they don't have to.
The attention to observation is also concerning. Apologies if you're familiar, will try to keep this short -- a lot of hospitalizations are clinically indistinguishable from inpatient admissions except are 1-2 days so get billed as obs rather than a full admission, so adding scrutiny to those is very concerning. (Most of the attention has been on only paying obs instead of for full admissions, but now it looks like they're going to put the screws to the lower acuity obs too).
Even if this is all above board, there is also the inevitable chilling effect: policies like this will make people with symptoms think more about the chance they'll not be covered and will move the needle even further toward dissuading appropriate care.
Along those lines, people don't *want* to come to the ER. They come to us because they a) need to and b) don't have other options. If insurers did more to widen their network of providers, paid more for acute unscheduled care & primary/outpatient care in general, there would be more options for lower acuity patients to seek acute unscheduled care.
As usual, for further context/reading, I've been compiling a bunch of resources on low acuity ED visits on this blog post. #23 there is a paper I worked on using the similar "what happened to patients in the ER" to estimate how many could potentially have gone to other sites just based on that administrative data, here's my blurb:
We looked at what happened to patients in EDs (eg labs, imaging, medications, procedures, dispo) and when (evenings, nights, weekends) and compared what visits theoretically could have been substituted at primary care offices, retail clinics, and urgent care centers based on strict vs very generous estimates of alternative sites' capabilities & hours. Note we did not look at insurance, liability or clinical comfort, or actual ability to schedule an appointment so these are pretty generous estimates (on the other hand some things like some labs or x-rays may have happened more generously at EDs that alternate sites would be fine not doing; but I doubt this would change our results much tbh). Based on 2011 NHAMCS we found these strict–generous estimates of how many ED patients had services that theoretically could have been done at alternative sites: "Our criteria classified 5.5%–27.1%, 7.6%–20.4%, and 10.6%–46.0% of visits as substitutable in primary care offices, retail clinics, and urgent care centers, respectively."
Just because something could be seen at a (cheaper) site doesn't mean it's not a PLS emergency, eg ankle sprain at 6pm. Could an urgent care have taken care of it? Of course. But if none are open, and it might be broken, etc…