TESTIMONY OF JAY MULLEN, M.D., M.B.A., F.A.C.E.P.

IN SUPPORT OF

L.D. 1155, AN ACT TO PROTECT PATIENTS AND THE PRUDENT LAYPERSON STANDARD

Joint Standing Committee on Health Coverage, Insurance & Financial Services
Room 220 Cross State Office Building, Augusta, Maine
Thursday, March 28, 2019, 1:00 p.m.

Good afternoon Senator Sanborn, Representative Tepler, and Members of the Joint Standing Committee on Health Coverage, Insurance & Financial Services.  My name is Jay Mullen, M.D., M.B.A., F.A.C.E.P., and I am an emergency physician and the Immediate Past President of the Maine Chapter of the American College of Emergency Physicians (Maine Chapter, A.C.E.P.).  I also am a Co-Chair of the Maine Medical Association Legislative Committee.  Finally, I am the C.E.O. of BlueWater Emergency Partners, a private physician owned practice providing emergency medicine services in four hospitals across Maine.

I am pleased to be here today to speak in support of L.D. 1155, An Act to Protect Patients and the Prudent Layperson Standard on behalf of both the Maine Chapter of A.C.E.P. and the Maine Medical Association.  I want to thank Speaker Gideon and her staff, as well as all of the co-sponsors of this important patient protection legislation, for their commitment to protecting Maine patients from inappropriate financial burdens at a time when they are most vulnerable – in the emergency room. 

• Chest pain after a heavy meal is just indigestion, except when it is a heart attack.
• Fever and a cough is just a cold, except when it is pneumonia.
• A headache with neck pain is just a strained muscle, except when it is a brain aneurysm.
• Leg pain is a strained hamstring except when it is a ruptured disk.
• Pelvic pain is just an ovarian cyst, except when it is a tubal pregnancy.

These are real life examples of when friends and family reached out to me to ask if they should seek care for their symptoms or just stay at home.  As a board-certified emergency physician, I struggled to help them decide what to do.  I knew that their symptoms were most likely due to common non-emergent diagnoses like indigestion, colds, tension headaches, strained hamstrings and ovarian cysts – unless they weren’t.  Luckily, I didn’t second guess myself.  I told all of them to go to the ER.

Only after a thorough evaluation by a healthcare professional did my good friend find out he was having a heart attack, my sister in law had an aneurysm and I had a ruptured disk.

The final diagnosis for all these complaints could have been non-emergent, except they weren’t.  If I, a board-certified emergency physician couldn’t be certain about the implications of the presenting symptoms, how can we expect the public to self-diagnose?  Would my friends and family have followed my advice to go to the ER if they were afraid they would incur a large hospital bill if they turned out not to have an emergency?

This Committee in the Maine legislature has a long history of protecting the rights of patients from anti-consumer practices of health insurance carriers with the enactment of the Health Plan Improvement Act, Chapter 56-A of the Maine Insurance Code (Title 24-A) in the 1990s.  The Bureau of Insurance implemented various aspects of this statute in an extensive rule known as Rule Chapter 850, Health Plan Accountability.  Although Maine was a leader in the “patient rights” movement of the 1990s, the protections in these laws are mainstream and widely accepted across the country today.

One of these patient protections adopted at that time is commonly known as the “prudent layperson” standard, meaning that a health insurance carrier must provide coverage for emergency services “if a prudent layperson acting reasonably would have believed that an emergency medical condition existed.”  Bureau of Insurance  Rule Chapter 850, Section 8, Subsection H.  Unfortunately, health insurance carriers are not abiding by the prudent layperson standard, thereby compelling emergency physicians across the country to act through the courts and legislation to enforce the standard.  Accordingly, Maine A.C.E.P. and the Maine Medical Association believe it is necessary to clarify Maine’s articulation of the prudent layperson standard through L.D. 1155.  The bill also prohibits health insurance carriers from subjecting emergency services to prior authorization, consistent with Rule Chapter 850, and requires any utilization review to be conducted by a clinical peer.  These provisions are consistent with arguments MMA made in support of L.D. 249 and L.D. 705, recently heard by this Committee.

As additional background, I have attached to my testimony, the following documents:

1. ACEP Defending “Prudent Layperson” in Court, September 5, 2018 by Laura Wooster, MPH and Leslie Patterson Moore, JD;
2. State of Georgia House of Representatives Study Committee on Retrospective Emergency Room Policies, Final Report, December 28, 2018;
3. Prudent Layperson (PLP) Standard, issue brief, Emergency Department Practice Management Association; and
4. Letter from Andrea M. Brault, MD, MMM, FACEP, Board Chair of EDPMA to Lori Johnston, President of Paramount Health Care, Inc. regarding the PLP standard dated March 21, 2019.

In response to this significant patient protection problem, I respectfully urge the Committee to vote “Ought to Pass” on L.D. 1155.

Thank you for your consideration and I would be happy to respond to any questions you may have.