The fraying safety net of emergency medicine received a reprieve recently, largely due to several ACEP members who acted on behalf of all emergency physicians to ensure that controversial model legislation did not further diminish emergency care reimbursement. In early March, the National Conference of Insurance Legislators (NCOIL) passed a model law to enhance health care transparency in relation to controversial balance billing practices.

NCOIL’s model legislation initially prohibited balance billing, but ACEP worked with such entities as the Emergency Department Practice Management Association (EDPMA) and the American Medical Association to challenge the proposed bill. Their efforts paid off, and the model bill that NCOIL released in March ultimately focused on notification requirements for hospitals and insurers to inform patients when they may be treated for nonemergency conditions by an out-of-network physician in an in-network hospital. Emergency care was specifically exempted from all notification requirements in the model bill, which was distributed as a model to legislators in every state.

Dr. Charles Bregier Jr., immediate past chair of ACEP’s Reimbursement Committee, testified before NCOIL regarding the dire effect that a blanket prohibition against balance billing or a pretreatment disclosure mandate could have on emergency care providers and their patients.

“We didn’t think the whole issue of disclosure and transparency was appropriate in an emergency department setting,” said Dr. Bregier. “If we’re in a situation where we or a hospital representative must talk about being a nonparticipating provider when someone’s having a heart attack, patients will die.”

Dr. Michael Gerardi, a member of ACEP’s Board of Directors and liaison to ACEP’s Reimbursement Committee, testified before NCOIL that emergency care providers have been forced to balance bill because insurance companies are severely underpaying these out-of-network claims.

“Knowing that emergency providers will take care of patients no matter what (because of EMTALA), some insurers aren’t living up to their obligations,” said Dr. Gerardi. “In reality, a ban on balance billing would be a huge benefit to insurers, giving them carte blanche to arbitrarily set payments rates for emergency physicians – and all of this at a time when the ED safety net is already unraveling.”

Such legislation banning balance billing would also put patients’ lives at risk because the ban would have included emergency care consultants, such as anesthesiologists, radiologists, and cardiologists.

“If you tell a plastic surgeon or an orthopedist that they can’t balance bill, who is going to be willing to take call?” Dr. Gerardi said.

ACEP argued that a better approach would be for state regulators, legislators, insurers, and emergency medicine providers to develop fair payment methodologies and rates, while including assurances for all parties that there are reasonable ways to obtain a balanced review of disputed claims. In addition to being involved in FAIR Health, established in 2009 with the mission to help ensure fairness and transparency in out-of-network reimbursement, ACEP presented to NCOIL model legislation that outlines key elements that should be included in a fair payment system for emergency care.

Dr. R. Myles Riner, consultant to MedAmerica, helped author ACEP’s fair payment model legislation, which prohibits balance billing but contains critical safeguards to ensure that emergency care services are fairly reimbursed based on usual and customary charges for each geographic region.

Emergency physicians in California provide an average of $150,000 annually in charity care – 4 to 10 times as much as any other physician specialty, according to Dr. Riner.

“EMTALA demands free care for anyone who needs it and can’t pay, so it’s a particular burden for emergency physicians because 100% of our practice is EMTALA obligated,” Dr. Riner said. “We’re required to see every patient, and to meet that mission we need to be adequately paid when we treat insured patients in order to make up for underpayments by Medicaid, Medicare, and the uninsured. Once you’ve lost the right to balance bill, things become very difficult, and if you don’t have a fair payment standard, then you’re really behind the eight ball.”

With a reasonable fair payment standard in place, emergency physicians wouldn’t need to balance bill patients. “We don’t like balance billing – it’s not our objective,” Dr. Riner said. “It’s just what we’ve been forced to do in order to continue treating all our patients.”

“Adequate reimbursement is the lifeblood of our survival,” said Dr. Gerardi. “When we put on our white coats, my colleagues and I don’t worry for 1 second about CMS, health plans, or fair reimbursement. Why is it then that insurance companies can retrospectively and capriciously undervalue my emergency team’s role in the health care system by disallowing or underpaying our claims? When we’re done treating the patient, we still have to meet our mortgage. We’ve devoted our lives to this and we’ve got to be treated fairly.”