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Originally published Friday, September 30, 2011 at 1:54 PM

Doctors sue state over limits on ER visits

A group of doctors filed a lawsuit Friday to stop a new Washington state rule limiting Medicaid patients' visits to emergency rooms for routine health care. It limits payment to three visits a year for any of the 700 diagnoses the state says are typically not emergencies, including chest pain, abdominal pain and early-pregnancy hemorrhage — conditions doctors argue must be evaluated because they could in fact prove to be genuine emergencies.

Seattle Times health reporter

For the state's list of nonemergency conditions:

http://hrsa.dshs.wa.gov/provider/index.shtml

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Doctors have filed suit to stop a new state rule limiting payments for emergency-room visits by Medicaid patients.

The lawsuit adds fuel to an already acrimonious relationship between doctors, hospitals and Medicaid officials over the rule, scheduled to go into effect Saturday.

The rule limits payments to three visits a year for any of the 700 diagnoses the state says are typically not emergencies, including chest pain, abdominal pain and early-pregnancy hemorrhage — conditions doctors argue must be evaluated because they could in fact prove to be genuine emergencies.

"You're asking patients to make a decision about whether [chest pain] is an emergency, when physicians can't make a diagnosis without an EKG," says Dr. Nathan Schlicher, an emergency doctor at St. Joseph Medical Center in Tacoma.

Doctors say more than a dozen other states have expressed interest in Washington state's rules, which — if allowed to stand — could affect not only Medicaid patients here and in other states but could be adopted by private insurers as well.

In discussions with the state, Schlicher represented the state chapter of the American College of Emergency Physicians, which filed the lawsuit in Thurston County Superior Court. The group and the Washington State Medical Association have been in discussions about the rule with state Medicaid officials.

The lawsuit, which asks the court for an injunction, says the state did not follow proper rule-making procedures, ignored lawmakers' directions and is violating state and federal Medicaid laws, including "prudent layperson" standards governing the coverage of ER visits.

Washington State Hospital Association spokeswoman Cassie Sauer said hospitals support the lawsuit as well.

"We are absolutely not OK with how it has turned out," Sauer said. "The state is making bad policy and legislating bad medicine based solely on cutting the budget," with potentially severe consequences for some of the most vulnerable patients.

"The medical community is united in opposition," she said.

State officials said they had not yet seen the suit and had no comment at this time.

The state's medical director for Medicaid, Dr. Jeff Thompson, said the budget crisis forced him to cut at least $35 million a year from the ER-visits tab. Lawmakers directed Medicaid to collaborate closely with doctors and hospitals on the list and an appeal process.

But Schlicher and Sauer said collaboration was nonexistent, with providers' proposals routinely dismissed.

"This list is not based in science," Schlicher says. "It's based on which line item is going to save the most money."

In the long run, he says, the new policy may not even do that, if patients wait until problems are more serious — and more costly.

"If you don't have coverage, you won't come in until your kid with asthma is blue," he says. "Sicker patients is what this is going to be causing."

Most emergency doctors, including Schlicher, are not employed by a hospital but by a group that will bear the brunt of unpaid bills.

Thompson, on the other side, contends that attempts to argue about specific conditions ignore the hard financial reality.

"We have no flexibility in terms of the budget numbers," Thompson says. "I need serious people to come to the table because we have serious issues."

He concedes that the meetings weren't as collaborative as they could have been. For example: He resisted a provision that would have Medicaid pay for children no matter what their diagnosis because, he says, he needed to save the money.

"We had no flexibility in removing either large groups, like kids, or large [more frequent] diagnoses from the list."

Thompson notes that the budget is so bad lawmakers have had to cut whole programs, such as Basic Health for working poor.

"I will grant you that this is a disruptive innovation," he concedes. "We're working with the communities to ensure the least amount of unintended consequences."

Medicaid will pay for the first three nonemergency visits, he notes. Only a small minority — about 3 percent of Medicaid patients who use ERs in a year, or about 11,000 patients — seek care in ERs more than three times a year. Those patients have been specifically notified by Medicaid about the changes, Thompson said.

A few patients visit ERs 20, 30 or more times a year, he said. In 2005, the top Medicaid ER user, a 27-year-old woman, visited ERs 172 times, mostly with migraine and headache complaints, according to DSHS.

As many as half the high-use ER patients are seeking drugs, Thompson says, and because ERs are so crowded, patients with true emergencies may not get the attention they need. And helping steer patients with chronic conditions away from the ER isn't a bad thing, he says, because ERs can't help with the long-term management of diseases such as asthma.

But Thompson concedes that he doesn't know how many patients come to ERs because they're unable to find primary-care providers or because they can't get time off from work during regular office hours.

"That may be in fact true," he says, and Medicaid is working to increase coordination between primary-care doctors and ERs.

One compromise that was reached in the collaboration was the creation of a list of automatic exceptions to the limits, including patients who arrive by ambulance, police or EMTs; foster children; patients seeking mental-health or detox services; and patients who end up admitted to the hospital or who undergo emergency surgery.

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com

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