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ACEP Sues Federal Government Over EM Billing Regulation

In an unparalleled move, the American College of Emergency Physicians (ACEP) has taken a bold step and gone ahead and sued the federal government over an unfair insurance billing regulation that prevents emergency physicians from receiving reasonable reimbursement for services provided out-of-network (OON).

Under contention is the Centers for Medicare and Medicaid Services' (CMS) regulation which uses the "greatest of three" rule to determine how an emergency physician will receive payment for OON services. ACEP states this option allows insurers to determine emergency physician reimbursement based on a black box method without any verification of the data and without a transparent database of usual, reasonable, and customary charges.

Jay Kaplan, MD, FACEP, President of the ACEP, states the regulation is a clear indication that insurance companies have far more clout with the CMS than physicians do. He further adds that "health insurance company" is a misnomer since insurers are only concerned with shareholder benefit and not the health of the patients they insure.

The organization is stepping up to speak for its members

ACEP represents the interests of nearly 35,000 member emergency physicians. It has been on the heels of the federal government since 2010, meeting with officials, sending formal comments, and drafting concerns about how the "greatest of three" option can be potentially manipulated by insurers. 

In April 2016, after all their efforts failed to yield any concrete results, the ACEP Board of Directors came to a decision to proceed with a lawsuit in hope that the federal courts would examine the case, realize the rule is a violation of the law, and eliminate the CMS regulation. Dr. Kaplan states they were forced to take this unprecedented step because the regulators turned a deaf ear to ACEP concerns and excluded them from all decision making.

The CMS released the OON regulation for payment to emergency physicians shortly after the Patient Protection and Affordable Care Act was passed in 2010. Along with ACEP, other associations, such as the American Hospital Association and the American Medical Association, also expressed their criticism of the OON rule as being unfair. The tight deadline for enforcing the rule was also condemned.

The "greatest of three" options described by the CMS includes:

·      The amount paid by Medicare

·      The amount outlined in the plan for OON services based on usual, reasonable, and customary charges

·      The negotiated median in-network amount

Jeff Bettinger, MD, FACEP, a member of ACEP and chair of the work group focusing on OON/billing issues, feels this is an opaque method of payment that is skewed in favor of the insurer, lowering payment to the emergency physician and leaving the patient with a massive financial liability. The "greatest of three" payment methodology eats away at the very foundation of fair compensation and allows insurance companies to corrupt the language and lower payments to emergency physicians, he adds.

Several meetings between the Center for Consumer Information and Insurance Oversight (CCIIO) at the CMS and leaders from ACEP to address the deficiencies yielded no result. Letters from various bodies such as ACEP, AHA, AMA, EDPMA, and state medical bodies were given no credence either.

A 2014 effort by the ACEP and CCIIO leadership to look at concerns regarding payment reductions to emergency physicians was disappointing. The fifth leadership change at CCIIO did not help matters. The findings of the hired contractor were equivocal at best. In September 2015, the current CCIIO director delivered the final blow by stating that his office would not intervene in the matter.

The final rule was released in November 2015 and contained a further surprise for the emergency medicine community in that the CMS noted that ways to prohibit balance billing by providers were under consideration, even though this practice is permitted under the PPACA. A December 2015 letter from the ACEP to the CMS evoked no response, forcing the recourse to litigation.

EM regulations and the cost of receiving treatment

The Emergency Medicine Treatment and Labor Act (EMTALA) is a federal law that requires emergency care to be provided to patients regardless of payment. The ACEP feels the CMS is using EMTALA to make an unconstitutional use of emergency physician and hospital services in a biased manner, putting the health of 130 million citizens in danger.

Dr. Kaplan feels that the CMS rule fosters the creation of a system where patients will be saddled with additional bills for care sought from OON medical providers. In a poll conducted by ACEP, the overwhelming majority of emergency physicians felt insurance companies mislead patients by offering affordable premiums, and 80 percent of emergency physicians said they are treating patients who have had to delay or sacrifice seeking medical care on account of high deductibles, out-of-pocket expenses, and co-pays. 

The ACEP lawsuit, funded by the Emergency Medicine Action Fund, will likely take several months to make its way through the federal court system, and the litigation fund will need to match the considerable war chest at the disposal of the insurance companies. The ACEP, nonetheless, is determined to protect the interests of the specialty of emergency medicine on which the American population is so dependent.