Legal Matters: WA State: Limiting Medicare Repayment

In Washington State, the big news for the last year has been the Washington State Health Care Authority’s attempt to legislate a mandate to reduce non-emergency use of hospital EDs, in addition to the over-use of EMS.  Their plan included denying Medicaid payment for the treatment of more than 500 different conditions, including sprains, strains, first degree burns, chronic tonsillitis, and many other common problems.  Please note that they are currently on their second version of this bill, the original included 200 more conditions, including chest pain and abdominal pain.  However, they would pay for the treatment of these ailments if they were taken care of in a primary care clinic.

This is their second attempt at curtailing what they believe is out of control healthcare spending on emergency medical care.  The state’s original plan, which was enacted on October 1, 2011, was to limit Medicaid patients to three emergency room visits per year.  The thought process behind this limit was to discourage drug seekers from coming to the ED for opioids and to encourage people to go to their primary care providers for chronic problems, as 97% of the state’s Medicaid clinics do not exceed 3 ED visits in the course of an average year.  When brought to a judge, the law sided with the physicians and decreed that the state did not follow proper rule making procedures in establishing the limit, so it was repealed in November 2011.  HCA responded with the current plan, which doesn’t appear to be any better, as the new plan denies payment for more diagnoses than the previous plan.  The new plan also does not address the heart of the problem any better than the previous plan.

The interesting part is that the CDC found that only 8% of patients are in the ED for non-emergent conditions, and 67% of those patients are being seen when primary care offices are not open.  The CDC went on to state that “non-urgent” does not mean “unnecessary” as many of the conditions required management within 2-24 hours1. In addition, only 2% of healthcare spending is on emergency care2.

Washington ACEP in partnership with the Washington State Medical Association and the Washington State Hospital Association, have devised their own plan in opposition to this legislature.  Their goal is the address the root of the problem – lack of access and reasons for inappropriate ED utilization.  The plan targets these five areas:

1.  Reducing ED visits for narcotic-seeking behavior.

2.  Reducing “unnecessary” ED visits by a collaborative use of next-day or same-day visits to primary care and improving access to care.

3.  Creating a “Generics First” initiative spearheaded by physicians to voluntarily develop a statewide drug formulary.

4.  Instituting an extensive case management program to reduce inappropriate ED utilization by frequent users.

5.  Tracking emergency room visits to reduce ED shopping.

After reading both plans, this raises many questions for me.  Who decides what is medically necessary in the ED setting?  Doctors? The government? As all of us know, patients have no idea what is an emergency and what is not.  If a patient presents with abdominal pain, but all the tests come back negative, does that deem the visit non-emergent?  At what point is the determination of an emergency being made?  All of us have seen how a benign chief complaint can turn into an ICU consult, emergent surgery, or hospital admission.  What questions does this plan raise for you?  Would you make any changes to the ACEP plan?  Is there anything that you feel is not being addressed by either plan?

I look forward to reading your comments!

For More Information –

Washington ACEP:

Washington State Medical Association:

Washington State Health Care Authority:

1Statement of Peter Cunningham, Ph.D., Center for Studying Health System Change, before the U.S. Senate, Health, Education, Labor and Pensions Subcommittee on Primary Health and Aging, May 11, 2011

2“Medical Expenditure Panel Survey,” Department of Health and Human Services, Agency for Healthcare Research and Quality, 2008,

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