A controversial new UnitedHealthcare policy intended to tamp down on emergency department visits and costs has drawn ire from providers, while insurance analysts question what, if any, impact the regulation will have.

Come July 1, the Minnetonka, Minn.-based insurer said it will take a more careful view of its 26.3 million commercial patients’ emergency department visits, reviewing their initial reason for visiting the ED, the diagnostic and other services provided during the visit and the outcome of the experience, when deciding whether to approve—or deny—patient claims. UnitedHealthcare, the nation’s largest health insurer, said it made the move to cut down on the $32 billion unnecessary ED use costs annually, driving up healthcare costs for all.

“We are taking steps to make care more affordable, encouraging people who do not have a healthcare emergency to seek treatment in a more appropriate setting, such as an urgent care center,” a spokesperson wrote in a statement. “If one of our members does receive care in an emergency room for a non-emergent issue, like pink eye, we will reimburse the emergency facility according to the member’s benefit plan.”
UnitedHealthcare’s policy echoes a similar mandate from Anthem, where the insurer could retroactively deny payment for emergency department visits that did not involve true emergencies. The action drew pushback from policymakers and providers alike, with the American College of Emergency Physicians suing the Indianapolis-based insurer to kill the policy. ACEP said the suit against Anthem is ongoing, and declined to comment on whether they planned to take legal action against UnitedHealthcare.

The physician group said they believe the policy is illegal under the prudent layperson standard, which requires insurers to provide coverage for ED visits based on a patient’s symptoms, rather than their final diagnosis.

“ACEP firmly believes that the prudent layperson standard protects patients by requiring insurers to base claims payments on a patient’s symptoms, not their final diagnosis,” a spokesperson wrote in an email. “Unfortunately, insurance companies make it clear through their actions that they will continue attempting to erode the prudent layperson standard, putting lives at risk, unless they are stopped.”

UnitedHealthcare contends that the policy complies with federal law, since the insurer will still reimburse providers for care according to their member’s benefit plan.

Regardless of whether the policy is legal or not, the law suffers from poor enforcement mechanisms, said Seth Trueger, an emergency department doctor at Northwestern Emergency Medicine. Trueger said he has had colleagues who have attempted to sue insurers over this policy before, but courts have ruled that providers did not have standing, since they were not directly harmed by the law—the suit had to come from patients.

“The providers provide care, and then don’t get reimbursed under the policy, that’s illegal. That’s the harm,” Trueger said. “In the emergency department, we have a duty to take care of patients, regardless of their ability to pay, which is what the whole point of this law is, so that the insurance companies can’t turn around and deny payment.”

Along with violating federal law, Trueger questioned whether policies that aim to drive low-acuity care to cheaper sites actually save money, since the administrative enforcement burden and change to consumer behavior requires high costs on the part of the insurer. He also questioned how many patients with low acuity conditions visit the ED for non-emergencies.

“It’s just not where the money is, those aren’t the most expensive visits,” he said. “They might be more expensive than somewhere else, but they’re not a major cost of emergency care.”

The cost to the patient, meanwhile, is potentially their life. By sowing fear over big medical bills into patients who want to visit the ED, Trueger said UnitedHealthcare will drive vulnerable patients away from the doctor, leaving underlying conditions undiagnosed, increasing their overall cost of treatment and potentially exacerbating the COVID-19 pandemic.

“One of the biggest problems with COVID is that the symptoms overlap in so many other types of benign things, like regular colds, bronchitis or more serious things like pneumonia,” Trueger said. “So not only does it put the patient and their family at risk, it puts their communities at risk.”

The policy disproportionately impacts patients enrolled in narrow network plans, and those who work full-time and are unable to take off to schedule a visit with their primary care doctor during working hours. The pandemic has likewise exacerbated this problem, he said, with consumers’ deferring care hitting many primary care practices’ balance books, and leaving them with fewer resources to immediately accommodate patients in an emergency.

“I’m not going to pretend that there are not issues with prices in emergency care. That’s a much bigger issue, which gets into all sorts of stuff,” Trueger said. “But states and Congress specifically made this law to protect patients, so that we can be there to care for patients when they need care.”

Provider’s qualms likely lie in the fact that they will earn less from this policy, said Ari Gottlieb, a healthcare analyst. Moreover, states lifting their pandemic restrictions in many parts of the country makes that argument moot, he said. Even if the virus were still a threat, Gottlieb said the last place a patient should be is in a crowded emergency department. And, as more urgent care facilities open across the nation, and use of telehealth explodes, Gottlieb said patients have greater access than ever to emergency care outside the ED.

He said he wanted to wait and see what UnitedHealthcare’s implementation of the policy looked like, before casting an opinion on the action.

“Corporations do have too much power in this country, but we’re also afraid to ever say that individuals do things that are wrong,” Gottlieb said. “If you go to the emergency department, and you have other options for pinkeye, that’s wrong. The consumer made a mistake, and they should pay for it.”