You have requested an opinion of this office concerning whether insurance companies may adopt a definition of an "emergency condition" for purposes of determining coverage that is inconsistent with definitions of "emergency condition" and "emergency services" adopted by the General Assembly in the Emergency Services Law, 1996 Ga. Laws 668 (codified at O.C.G.A. § 31-11-80 et seq.) and the Patient Protection Act of 1996, 1996 Ga. Laws 485 (codified at O.C.G.A. § 33-20A-1 et seq.). The Emergency Services Law defines "emergency condition" as:

[A]ny medical condition of a recent onset and severity, including but not limited to severe pain that would lead a prudent layperson, possessing an average knowledge of medicine and health, to believe that his or her condition, sickness, or injury is of such a nature that failure to obtain immediate medical care could result in:

(A) Placing the patient's health in serious jeopardy;

(B) Serious impairment to bodily functions; or

(C) Serious dysfunction of any bodily organ or part.

O.C.G.A. § 31-11-81(1).

A similar provision in the Patient Protection Act of 1996 defines "emergency services" and "emergency care" consistent with the above. The purpose of these provisions, as stated in the Patient Protection Act, is "to protect patients from managed care practices which have the effect of denying or limiting appropriate care," and to encourage physicians and health care providers "to advocate for medically appropriate health care for their patients." O.C.G.A. § 33-20A-2(a). You have indicated that one or more insurance companies of which you are aware continue to define "emergency condition," "emergency services," and "emergency care" in a manner inconsistent with the above-referenced statutes.

As a general rule, parties "are free to contract about any subject matter, on any terms, unless prohibited by constitutional law, statutory law, or public policy." Rawlins v. Campbell, 199 Ga. App. 472, 473 (1991) (quoting National Consultants v. Burt, 186 Ga. App. 27, 30 (1988)). An insurance company may, therefore, fix the terms and conditions of its policies, including defining coverages, as it wishes, provided the terms, conditions, and definitions are not contrary to law. Standard Guaranty Ins. Co. v. Davis, 145 Ga. App. 147, 152-53 (1978) (citing Fitzgerald v. Universal Underwriters Ins. Co., 132 Ga. App. 610 (1974)). On the other hand, provisions of an insurance policy that conflict with applicable statutory provisions are void, see, e.g., State Farm Mutual Auto. Ins. Co. v. Murphy, 226 Ga. 710, 713-14 (1970), and the statute controls. Nelson v. Southern Guaranty Ins. Co., 221 Ga. 804, 807 (1966); State Farm Mutual Auto. Ins. Co. v. Landskroener, 150 Ga. App. 308, 309 (1979). Indeed, all relevant statutory provisions governing the business of insurance implicitly become terms and conditions of the insurance contract. Nelson, 221 Ga. at 807 ("Existing and valid statutory provisions enter into and form a part of all contracts of insurance to which they are applicable, and in case of conflict between the policy and the statutory provisions, the latter control."). This is not to suggest that an insurance policy that complies with

relevant statutory provisions could not include terms providing greater protection to the insured than those required by the statute, Moore v. State Farm Mutual Auto. Ins. Co., 196 Ga. App. 755, 757 (1990), but rather to emphasize that statutory requirements governing insurance provide the starting point for determining coverage.

Applying these principles to the question that you posited, the definition of "emergency condition" contained in the Emergency Services Law at O.C.G.A. § 31-11-81(1) would govern and control over any contrary definition contained in any insurance policy issued in Georgia after the effective date of the statute. Moreover, with respect to managed care plans regulated by the Patient Protection Act of 1996, the definitions of "emergency services" and "emergency care" found at O.C.G.A. § 33-20A-3(2) must be included as plan provisions, and must be disclosed to plan participants. See O.C.G.A. §§ 33-20A-5(1)(vii), 33-20A-9, and 33-21-13(c)(3)(G). A managed care plan which fails to define "emergency service" and "emergency care" consistent with the Patient Protection Act, or which fails to provide an explanation of what constitutes "emergency services" to plan participants cannot obtain a certificate of authority from the Insurance Commissioner as required by O.C.G.A. § 33-20A-4(a).

Accordingly, it is my unofficial opinion that the definition of "emergency condition" found at O.C.G.A. § 31-11-81(1) would control over any contrary definition contained in any insurance policy issued in Georgia after the effective date of the Emergency Services Law; and further, that any managed care plan offered to a Georgia resident after the effective date of the Patient Protection Act of 1996 must contain, as a plan provision disclosed to participants, the definitions of "emergency services" and "emergency care" found at O.C.G.A. § 33-20A-3(2).

Prepared by:

Senior Assistant Attorney General