I am writing in intense opposition of the proposed ER Utilization Program due to take effect on July 1, 2020.  This program will indiscriminately penalize emergency care providers and facilities for providing appropriate and much needed care to our Virginia patient population that has the least access to alternative care, and runs the risk of penalizing the patients themselves.

Our group of 140 providers is the safety net for these patients in Hampton Roads; 26% of the patients we see have Medicaid or a Medicaid HMO.  As providers of care, we have no control over when and how any patient will seek care.  The list of 800+ conditions in this ER Utilization Program that will be arbitrarily down-coded to the lowest level of service regardless of the complexity of care needed to appropriately diagnose and treat, contains numerous potentially life threatening conditions. This policy clearly violates the prudent layperson standard that has long been in effect in our Commonwealth.

Decreasing preventable ER visits is a laudable goal when appropriate quality alternative care is available and accessible for the safety of all Virginians.  Yet penalizing the emergency providers who have no choice but to evaluate all patients that seek care in the Emergency Department is the wrong approach and will further decrease access to care for this vulnerable population and will result in significant harm.

Emergency departments, by federal law (EMTALA, or the Emergency Medical Treatment and Labor Act), must evaluate and appropriately treat all patients who present regardless of insurance status or ability to pay. Emergency physicians also unwaveringly believe in this decades-old law’s moral principle: All people deserve care.

If enacted, this Program will cripple emergency physicians', staff, and hospitals’ ability to provide quality access to appropriate and necessary care — both during the current COVID-19 crisis and long after. This emergency healthcare issue is also escalated in importance by the current calls for unequivocal social justice and racial equality throughout our nation. This Program will further demarginalize under-represented minorities and people living in poverty. 

Patients should never be put in a position where they are expected to self-diagnose their alarming symptoms to decide whether or not an emergency condition exists before seeking the skills of a medical professional. That is why we have Emergency Departments. It is the job of the emergency physician and emergency care providers to make this determination. This is called the “prudent layperson” standard and it requires a medical screening examination done by a medical professional when any patient believes they are having a medical emergency, and this is supported by EMTALA. The emergency provider is required to treat and stabilize the condition, no matter the final diagnosis. This requires our training and expertise and emergency medicine professionals. In order to ensure patient safety and support the health of our communities we  cannot support the ER Utilization Program, which if adopted will detrimentally affect the ability to carry out this life preserving mission of the emergency department. 

We believe that CMS guidance obligates state Medicaid programs and managed care organizations (MCOs) to reimburse doctors and hospitals for the delivery of such necessary emergency medical care based on presenting symptoms, not based on a list of diagnoses. How can a person with worrisome symptoms know what their final diagnosis is and whether that diagnosis will meet criteria for emergency medical care under this nonsensical program? There is no crystal ball, and this retrospective and punitive approach will cost lives and create disability.

Patients will be detrimentally impacted because: 

• Patients may feel compelled to wait to seek care, because it may not be “an emergency” under this rule. It sends the wrong message.

• Dramatically reduced payments for services delivered will result in fewer physicians in the ER, and much longer wait times. This will disproportionately affect urban and rural hospitals, which treat a higher percentage of Medicaid patients compared to suburban facilities in wealthier zipcodes.
• The financial viability of these emergency departments and medical centers is already threatened due to losses from COVID-19 where, during lockdowns, volumes declined as much as 40% due to both a lack of vehicle traffic and from patients who have delayed needed care and avoided emergency rooms out of fear of getting sick with COVID 19. This has created a new spectrum of even more complex health problems for many patients that delayed an emergency visit because of potential exposure to COVID 19 at all hospitals.
• Underrepresented minorities have always lacked equal access to healthcare and have suffered the worst outcomes in the U.S. This problem is worsening in this COVID-19 pandemic. Data from Johns Hopkins University shows that blacks are three times more likely to contract the novel coronavirus and six times more likely to die from it than any other racial group. Emergency physicians are the healthcare safety net when Medicaid recipients, other underinsured and uninsured people do not have adequate access to primary care and public health. These minority groups would be disproportionately impacted and suffer more when at risk hospitals lose significant Medicaid funding essential to their survival. 
• Minorities in the U.S. disproportionately have higher rates of co-morbidities that increase risk factors for COVID-19 (obesity, lung disease, diabetes, hypertension, and other immune-compromising diseases); in large part these conditions are due to already compromised access to primary care and preventative medicine. Without the ED, many of these patients remain unaware that they even have these comorbid conditions, as they lack access to primary care where these conditions are best managed; on the other end of the socioeconomic spectrum, privately insured and Medicare covered individuals have a clear advantage in regular access and wellness counseling in primary and preventive care.
• Emergency physicians are professionally dedicated to our national mission to provide high quality emergency healthcare and we strive toward health equity within the communities we serve. Allowing such an unfair policy to go into effect in Virginia would be a significant step backward in terms of racial and ethnic equality and social equity.

Medicaid reimbursements would be automatically cut to only $14.98 if an ER visit is on the list of “preventable” codes.  Such a low reimbursement makes full staffing of a typical Virginia hospital emergency department very precarious, especially in urban and rural areas who typically have high Medicaid populations. 

I ask that DMAS halt implementation of this Program to comply with the prudent layperson standard and ensure equal access to healthcare for all Virginians. 

Thank you.