“Allowing insurance companies to use opaque payment methodologies for out-of-network services not only lowers reimbursement for emergency services but transfers massive amounts of financial liability to patients,” said Jeff Bettinger, MD, FACEP, a member of the ACEP/Emergency Department Practice Management Association (EDPMA) Joint Task Force on reimbursement issues and Chair of the Work Group on out-of-network/balance billing issues.

“Currently, fee-for-service billing underwrites the vast majority of the practice of emergency medicine,” Dr. Bettinger said. “Allowing insurance companies to pervert the language of the ACA to lower payments removes the foundation for fair compensation of emergency physicians for services that they perform.”

ACEP leaders and staff had meetings with five successive directors of CMS’s Center for Consumer Information and Insurance Oversight (CCIIO). At each meeting and in every correspondence, it was pointed out that, without guidance to insurers to use a transparent database where local charges could be verified, the regulation is unenforceable.

“It is a reminder of when the then attorney general of New York, Andrew Cuomo, took on UnitedHealthcare’s subsidiary Ingenix for manipulating charge data to underpay physicians and the company was fined $300 million,” said Barbara Tomar, ACEP’s federal affairs director. “Those funds were used to set up an open, nonprofit database for charge data, FAIR Health,” she added. “Unfortunately, the interim final rule basically re-creates the same environment for insurers to use black box methods to determine physician payment.”

“It feels like the 10 meetings that ACEP had with CMS to address the deficiencies with these interim regulations never happened, and that the numerous letters from ACEP, the AMA, state medical societies, EDPMA, the AHA, and others were never given the slightest bit of credence,” ACEP wrote in a letter to CMS dated December 2015.

In 2014, ACEP prevailed on the CCIIO leadership, which hired a contractor to review emergency medicine concerns about significant payment reductions. Meanwhile, CCIIO leadership changed for a fifth time, and when the report was finally provided in July 2015, the results were disappointing. Instead of a quantitative analysis of claims data, the study produced a weak qualitative report with equivocal findings. Current CCIIO Director Kevin Counihan downplayed the report but agreed to continue to look into the concerns, asking for more data and more time. Then, in September 2015, ACEP representatives were told that his office would not intervene after all.

The final rule, released in November 2015, caught the emergency medicine community by surprise.