“A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.” —Sir Winston Churchill
One of the hottest health care topics of the last several years has been the seismic shift in financial responsibility from the health insurance companies (health plans) to the patients due to many factors, including the Patient Protection and Affordable Care Act. Consumers are more cognizant of their health care costs than ever before. The issues associated with so-called “surprise bills” have also been a popular subject in the national and local media and with consumer groups like the Consumers Union.
While several states that have addressed surprise bills have been careful to exclude those of emergency physicians (recognizing that the ED is different because of the EMTALA mandate and nature of care), the issues of patients being surprised with out-of-network (OON) bills when they are treated at an in-network emergency department have placed emergency physicians squarely in the debate.
With several states—Florida, Georgia, Hawaii, Louisiana, Maryland, New Mexico, New Hampshire, Ohio, Pennsylvania, Rhode Island, Tennessee, and Washington—either considering actual legislation, forming study commissions, and/or actively discussing placing limits on or eliminating OON balance billing, ACEP’s President at the time, Michael Gerardi, MD, FACEP, requested the formation of the Joint Task Force (JTF) with the Emergency Department Practice Management Association (EDPMA). The JTF first met in person at ACEP15 and has continued under the current ACEP President, Jay Kaplan, MD, FACEP—and the timing could not have been more critical.
In October 2015, EDPMA’s board of directors created a new professional position, state government relations director, to assist members and to coordinate with EDPMA’s State Regulatory and Insurance Committee and the ACEP state chapters on these issues.
ACEP/EDPMA JTF Strategies White Paper
In conjunction with the ACEP Reimbursement Committee Work Group 2 (which has jurisdiction regarding health plan payment disputes and issues), a white paper was prepared on OON and balance billing. Both the ACEP Board and EDPMA executive committee have officially adopted the strategies white paper. The purpose is “to assist and inform ACEP, ACEP state chapters, and EDPMA leadership regarding OON reimbursement challenges and threats, and to assist state leaders who may propose or may need to respond to proposed balance billing/OON benefit legislation in 2016 and beyond.”
Essential Recommendations From the White Paper
As leaders of this initiative, we believed that our mission on behalf of the College members, stakeholders, and EDPMA members was to describe legislative efforts in the past, highlighting issues of concern and areas of success. Several recommendations were made. First, any law restricting OON balance billing should contain a “minimum benefit standard” (MBS). Connecticut’s law requires an MBS of the 80th percentile of charges “… as reported in a benchmarking data base maintained by a nonprofit organization specified by the Insurance Commissioner” (emphasis in the original). Connecticut’s law will be effective June 1, 2016, and should serve as an important reference point. Second, the strategies white paper recommended the FAIR Health (FH) charges database as the reference for “usual and customary charges.” FH now contains more than 19 billion charges from more 60 contributors, which include health plans, Blue Cross Blue Shield plans, third-party administrators, and self-insured plans. (Note: the FH charges database is recommended and not the “relative value” database as it is not supported by the number and breadth of charges as the charges database.)
Alternative Dispute Resolution
Should there be an alternative dispute resolution (ADR) process? One of the most difficult political issues in the OON debate is how to remove the patient from a potential dispute between the emergency physicians and the health plans over the rate determined by the plans—again made more difficult when the patient is treated at an in-network hospital and by OON emergency physicians. The Connecticut MBS has the beauty of being simply stated and administered, and since it provides the minimum standard, there is no reason for an ADR process. In exchange for the MBS, emergency physicians give up any balance billing. If, as in the recently enacted New York or expected Florida legislation, the health plans determine the “reasonable reimbursement” (even if according to objective criteria), then ADR may be needed. Key highlights and recommendations for ADR (if it is unavoidable) are enumerated in the strategies white paper document.
We would like to end this discussion with a call to arms to the emergency medicine specialty—we need more than our fairly small number of volunteers and professional staff to continue this David versus Goliath battle with the health plans with their unlimited resources, public relations machines, and great leverage over the current presidential administration. The newly created federal Center for Consumer Information and Insurance Oversight (CCIIO) actually threatened, in a final rule in November 2015, to ban OON specifically for emergency physicians by federal rule—despite more than five years of direct dialogue with CCIIO and good-faith efforts to reach reasonable solutions. (See “ACEP Stands Up to Insurer Billing Practices” on page 1 for more on ACEP’s dialogue with CCIIO.) While this immediate federal threat perhaps has diminished as our advocacy efforts may have positive impacts, the state-level threats at more than a dozen states have not subsided. Frankly, we need your time and your treasure to continue this fight, recognizing that both ACEP and EDPMA and their members have stepped up in significant and important ways. Emergency physicians and their stakeholders don’t complain or play the victim—they step up and figure out what to do. That’s who we are. Now join us in that great effort.