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Blue Cross Blue Shield of Texas Delays Controversial Change After Backlash

Some Texas medical societies say the insurer’s pending review process change would scare patients into not seeking emergency care and could be deadly.

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The largest health insurer in Texas was set to change a review process on Monday. But it has been delayed until August 6, after getting backlash from physicians in Texas.

If the new process is launched, Blue Cross Blue Shield of Texas said its 500,000 HMO members may have to pay the entire cost of an out-of-network emergency room bill, if they go for something not serious or life-threatening.

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The insurance carrier said the stricter review policy is designed to help make health care costs more affordable. In an April 18 memo, Blue Cross first explained the change by pointing to examples of people who use out-of-network ERs for things like head lice or sprained ankles.


The push-back from Texas physicians

The Texas Medical Association and 18 other Texas medical societies sent a letter to the Texas Department of Insurance (TDI), in protest of the change.

The letter states, in part:

"BCBSTX is asking [patients] to diagnose their symptoms at a critical and emotional moment, when time can be of the essence. As a result, it is very likely that extremely ill patients will not seek emergency medical care while, bluntly, their conditions worsen or they die…. Scaring them into avoiding emergency care seems a heavy-handed approach that could be detrimental to good patient care.”

The entire letter can be found below:


The Texas College of Emergency Physicians also signed the letter.

"Really core to me is that patients cannot self-diagnose," said Dr. Alison Haddock, board member of the Texas College of Emergency Physicians. "I think it's wrong to be putting that extra burden on patients in their times of greatest need. No one wants to go to ER. That's no one's idea of a great time. But when people look at their situation think, ‘I think I'm having a medical emergency,' they have the right to come access our care.... But we also need you to have the right for the insurance company pay appropriately for care that you need. And that's something that people get really nervous about and afraid of, and will potentially delay care and put themselves in great danger.”

Allison Lee
Dr. Alison Haddock, an emergency physician in Houston, prepares for her afternoon shift at Ben Taub Hospital.

Haddock believes the change is a violation of Texas' prudent layperson law, which was passed in 1997. It protects patients' rights to seek emergency care without preauthorization for coverage and doesn't allow insurance companies to base that coverage on a final diagnosis; but rather the initial symptoms.

“Patients come to the ER because they feel that’ they’re having a medical emergency,” said Haddock. “The patient charts don't tell us the mindset of patient. And that really what the prudent layperson standard is about: in the mind of that patient, were they worried about an emergency, about a danger to their life, or limb, or organ system? That’s what the law is about. Blue Cross Blue Shield said they’ll look at patient charts to figure out if they met the prudent layperson standard or not, but there’s no way to really do that, because this isn't the patient’s diary. This is their medical chart. So, I think we can pretty safely presume that when patients come to the emergency room, they are coming because of their concern for a medical emergency.”



Blue Cross Blue Shield of Texas responds

"If you have or think you have an emergency condition, go to emergency room. And if that's the case, it's going to be covered," said Dr. Robert Morrow, Southeast Texas Market President for Blue Cross Blue Shield of Texas. He said the new process, in fact, embraces the prudent layperson standard.

"It doesn't look at diagnosis that somebody leaves the emergency center with. The review looks at the reason the person sought emergency care," said Morrow. "We follow the law now. That is not going to change."

Morrow said there is no change to benefits to HMO members: it's a stricter claims review process. He said the emergency claims would not be denied without being reviewed by licensed physicians, which would then still open to the appeal process. Morrow added Blue Cross’ SmartER website helps inform members where to go for non-emergency care, and tries to direct non-emergencies away from the ERs.

In a statement, Blue Cross Blue Shield of Texas said:

Blue Cross and Blue Shield of Texas (BCBSTX) is pleased to work closely with TDI over the next 60 days. During this time, BCBSTX will provide any further information TDI or Commissioner Sullivan requests while continuing to educate our members on the importance of appropriately using emergency services.

We anticipate this thoughtful, multi-step review process will be implemented on August 6, 2018 to provide protection for our members from inappropriate billing, egregious charges and fraud, waste and abuse by out-of-network emergency departments.

In an e-mailed statement, Brad Shields, Executive Director of the Texas Association of Freestanding Emergency Centers (TAFEC), said the “real” abuse is “confusing patients and jeopardizing lives by making it more likely that someone in need of emergency treatment won't seek it…. BCBSTX stands to gain by discouraging Texans from seeking emergency care and they are misleading lawmakers, regulators, and patients with claims they are attempting to prevent the use and abuse of ‘out-of-network' emergency departments,” said Shields. “The reality is that, according to law, all emergency care must be provided to patients at in-network benefit levels.”


The growing popularity of freestanding emergency rooms in Texas

Texas became the first state to allow freestanding ER's almost a decade ago, in 2009. Now, there are more than 200 such facilities across the state.


According to a study of more than 16 million Blue Cross Blue Shield of Texas insurance claims between 2012 to 2015, the use of the state’s freestanding emergency rooms shot up 236 percent, as opposed to a 24 percent increase for urgent care clinics and a 10 percent growth rate for hospital-based ERs. Data analysts with Blue Cross Blue Shield of Texas co-authored the study with experts at Rice University, Baylor College of Medicine, the University of Texas Health Science Center at Houston, and the Michael E. DeBakey VA Medical Center.

Vivian Ho, a health economist at Rice University's Baker Institute for Public Policy and the institute’s Director of the Center for Health and Biosciences, was one of the co-authors.

“The notion that people are walking into hospital emergency departments for things that shouldn't be treated in an emergency room has been widespread throughout country,” Ho explained. “Ten to 20 percent of emergency department visits could have been taken care of in lower cost, less aggressive care sites. So, we’ve known for a long time that there is a proportion of the population that is wasting the time and the complex resources that we offer in emergency care centers.”

Ho said that probability increases when you introduce freestanding emergency rooms into the mix. And, those can get expensive for patients.

In 2015, a freestanding ER bill averaged $2,199, as opposed to $168 at an urgent care clinic, according to the aforementioned study. Researchers said there was still an expectation for patients to pay approximately one-third of the price in each case. An average hospital-based ER bill was $60 more expensive than the freestanding ER average, but patients were only responsible for 33 percent of the cost of treatment, the study concluded.


Insurers vs. Freestanding ERs

Dr. Robert Morrow said Blue Cross Blue Shield of Texas data shows over 80% of their out-of-network ER claims are from freestanding emergency rooms.

There have been various reports of ongoing battles between insurers and freestanding emergency rooms; both of which claim to be in the patient’s best interest. And Blue Cross Blue Shield of Texas’ potential change in review process adds another layer to that.

"Make no mistake—lives will be lost if this policy is allowed to go into effect," said TAFEC Executive Director Brad Shields. "Patients' lives and wellbeing are being threatened by health insurance companies who are treating Texans like second-class citizens. Blue Cross Blue Shield of Texas' ER patient penalty policy that was set to go into effect on June 4th is a direct violation of both federal and state laws, and indefensible by any logical, ethical, and moral standard."

In addition to TAFEC believing the review change is in violation of prudent layperson standards, the group also thinks, “by not providing usual and customary reimbursement rates, insurance providers violate the intent of the medical community, and legislators who turned the prudent layperson standard into law,” according to its website. The organization referenced Section 1301.155 of the Texas Insurance Code; which references the prudent layperson standard, defines emergency care, and outlines how insurers must provide reimbursement.

But Ho believes there is a direct correlation between Blue Cross Blue Shield of Texas wanting a stricter claims review process and the existence of freestanding emergency rooms.

"I think a small group of bad actors who are operating certain freestanding emergency departments have brought this intervention upon themselves," said Ho. "I think that this campaign, and it seems to me like a publicity campaign, is being led by a small number of doctors who are making substantial amounts of money off of operating freestanding emergency departments. And I think they're managing to cloak their behavior well."

Ho believes Blue Cross Blue Shield of Texas' review change could end up saving money for policy holders, because it lowers the amount of wasteful expenditures.


Ensuring patients’ rights

The Texas Department of Insurance (TDI) is the state’s regulatory body that makes sure companies are in line Texas’ insurance laws and patients’ rights are maintained. Houston Public Media obtained TDI’s letter to Blue Cross Blue Shield of Texas, which outlines specific questions about how the new review process would be implemented.



“Our central concern is that the consumer protections are maintained with any changes that goes into effect,” said Ben Gonzalez, spokesman of the Texas Department of Insurance. “One of the things we’re interested in finding out is: HMO’s typically provide coverage for emergency room screenings. And, so, we want to make sure that is maintained. So, when a patient goes into the emergency room with something that they feel is an emergency, something that is life-threatening, they should be covered for that until it’s determined that it’s not emergency. So, any screens that take place to determine whether or not that [emergency] medical condition exists should be covered, as far as we're concerned.”

Gonzalez said, most importantly, people have the right to seek reasonable and legitimate emergency care. Blue Cross Blue Shield of Texas has said it agrees with that sentiment, and will work closely with TDI to answer its questions before the August 6 rollout. But will those forthcoming answers satisfy both TDI and protesting physicians in Texas?

As it currently stands, emergency physician Dr. Alison Haddock still believes a review change like this would be crossing a line. "I'm hoping this is not the place where we're going as a country," said Haddock. "Seeing the system break down in this way for our patients is just really scary for us, as emergency physicians."

And she said you never know who won't seek care, out of fear of receiving a surprise bill.

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