Texas doctors criticize Blue Cross and Blue Shield of Texas’s new ER policy

Nineteen of Texas’s most influential doctors sent a letter last week to Insurance Commissioner Kent Sullivan, urging he look into a new policy by Blue Cross and Blue Shield of Texas.

Starting on June 4, HMO members “may be required to pay for the entire emergency room bill if they go to to an out-of-network ER as a convenience for a condition they don’t think is serious or life-threatening.”

The group of doctors argue that this policy change will force patients to accurately self-diagnose their symptoms, and may result in patients not seeking needed care.

Read the entire letter below, or here.

May 8, 2018
Kent Sullivan, Commissioner
Texas Department of Insurance
333 Guadalupe St.
Austin, TX 78701

Dear Commissioner Sullivan:

Under Texas law, are health maintenance organizations allowed to punish patients who seek care for what they legitimately believe is a medical emergency?

On behalf of the member physicians, medical student, and administrators of the undersigned Texas medical societies, we are writing to ask you to provide an update on the Texas Department of Insurance’s review/assessment of the upcoming Blue Cross and Blue Shield of Texas (BCBSTX) policy on management of emergency benefits for subscribers to certain of its HMO plans.

In an April 18 memo to its producers and salespeople (attached), BCBSTX announced that its fully insured group and retail HMO members may be responsible for their entire bill if they go to an out-of-network emergency department “as a convenience for a condition they don’t think is serious or life-threatening.” The change will take effect with claims incurred after June 4.

We do not believe patients should be expected to self-diagnose to determine whether their symptoms are serious enough to warrant an emergency department visit. But with this policy, BCBSTX is asking that patients act as highly trained diagnosticians, skills our members spent many years of their lives acquiring. BCBSTX is asking them to diagnose their symptoms at a critical and emotional moment, when time could be of the essence. As a result, it is very likely that extremely ill patients will not seek needed emergency medical care while, bluntly, their conditions worsen or they die.

As you know, Texas law (i.e., Texas Insurance Code §§843.002(7) and 1271.155) uses the “prudent layperson” standard for emergency care coverage by HMOs:

(7) “Emergency care” means health care services provided in a hospital emergency facility, freestanding emergency medical care facility, or comparable emergency facility to evaluate and stabilize medical conditions of a recent onset and severity, including severe pain, that would lead a prudent layperson possessing an average knowledge of medicine and health to believe that the individual’s condition, sickness, or injury is of such a nature that failure to get immediate medical care could:

(A) place the individual’s health in serious jeopardy;
(B) result in serious impairment to bodily functions;
(C) result in serious dysfunction of a bodily organ or part;
(D) result in serious disfigurement; or
(E) for a pregnant woman, result in serious jeopardy to the health of the fetus.

Federal law and numerous other states’ laws rely on a similarly worded standard.

For example, when a person wonders if his or her chest pain is indigestion or a heart attack, will HMOs now be allowed now to penalize that person if he or she seeks care only to learn the ailment is the lesser concern? Or whether head trauma caused a concussion? Or whether abdominal pain is constipation or actually a dangerous appendicitis?

To expand, we respectfully and specifically point you to an example BCBSTX cites in the attached memo. “Some of our members are using the emergency room for things like … sprained ankles, for convenience rather than for serious or life-threatening issues.”

Mild or moderate ankle sprains can be treated simply with rest, ice, and at-home exercise. Some ankle injuries that present with similar symptoms, however, require immediate care. It is not reasonable for an HMO to expect that a “prudent layperson possessing an average knowledge of medicine and health,” in significant pain, can differentiate between a sprain, a fractured bone in
the ankle, and a dislocated ankle.

Clearly, the purpose of the “prudent layperson” standard in the Texas HMO Act is to shield patients from having to make such specific self-diagnoses, and to encourage them to seek emergency care appropriately without having to have medical expertise or a detailed understanding of the law. Scaring them into avoiding emergency care seems a heavy-handed approach that could be detrimental to good patient care.

A more appropriate direction would be for BCBSTX to educate its enrollees on more appropriate in-network venues available, ranging from medical homes to urgent care centers to emergency centers.

We strongly encourage you to evaluate BCBSTX’s new policy against this standard and the other relevant provisions of the Texas HMO Act. Feel free to contact Darren Whitehurst of the Texas Medical Association staff at (512) 370-1350 if we can be of assistance.


Carlos J. Cardenas, MD
Texas Medical Association

Gerad Troutman, MD, FACEP
Texas College of Emergency Physicians

Girish P. Joshi, MB, BS, MD, FFARCSI
Texas Society of Anesthesiologists

William R. Lumry, MD
Texas Allergy, Asthma and Immunology Society

Bekra Yorke, MD
Texas Society of Pathologists

J. Clay Sawyer, MD
Vice Chairman for Public Policy
Federation of Texas Psychiatry

Mark L. Montgomery, MD, FACR
Texas Radiological Society President

Andrew J. Palafox, MD
Texas Orthopaedic Association

Mark Wren, MD
Texas Physical Medicine and Rehabilitation Society

Richard Hurley, MD
Texas Pain Society

Roger Khetan, MD
Texas Chapter of the American College of Physicians Services

Allison Readinger, MD
Texas Dermatological Society

Stanley H. Kim, MD
Texas Association of Neurological Surgeons

Janet L. Hurley, MD
Texas Academy of Family Physicians

Jay Yepuri, MD
Texas Society of Gastroenterology and Endoscopy

Dennis A. Conrad, MD
Texas Pediatric Society

Aziz Shaibani, MD
Texas Neurological Society

Alfred Antonetti, MD
Texas Society of Plastic Surgeons

Lindsey Tubbs, FACMPE
Texas Medical Group Management Association