Resolution 40(17) Reimbursement for Emergency Services
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Resolution 40(17) Reimbursement for Emergency Services
Page 6
RESOLUTION: 40(17)
SUBMITTED BY: Indiana Chapter
SUBJECT: Reimbursement for Emergency Services
PURPOSE: 1) Continue to uphold federal prudent layperson laws; 2) advocate for patients to prevent negative clinical or financial impact caused by lack of reimbursement; 3) partner with affected states and the AMA; and 4) work with Anthem and other third party payers to ensure access to and subsequent reimbursement for emergency medical care as defined by the prudent layperson definition of an emergency regardless of the initial presenting complaint, final diagnosis, or access to lower levels of care.
FISCAL IMPACT: Budgeted committee, staff, and consultant resources. Additional travel expenses of approximately $5,000 to meet in person with Anthem. Additional unknown expenses if legal action is initiated.
Resolution 40(17) Reimbursement for Emergency Services
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WHEREAS, Emergency Medicine is recognized by the American Board of Medical Specialties as an independent specialty with a recognized unique knowledge base and procedural skill set that is certifiable by board examination; and
WHEREAS, The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires Emergency Departments to provide a medical screening examination including stabilization and treatment regardless of ability to pay to all patients who present themselves to the Emergency Department requesting medical care; and
WHEREAS, ACEP supports the “prudent layperson” definition of an emergency medical condition as one in which a person who possess an average knowledge of health and medicine and might anticipate serious impairment to their health; and
WHEREAS, The range of emergency medical conditions experienced by patients seen in emergency departments is extremely variable and difficult to recognize by patients; and
WHEREAS, Anthem has announced intention to deny reimbursement for Emergency Medical services when Anthem defines the condition as non-emergent and has requested that providers direct patients to care sites with lower levels of service; and
WHEREAS, The value of emergency medical services cannot be defined as a presenting symptomatic complaint or final diagnosis; and
WHEREAS, The Indiana chapter of ACEP supports ACEP in endeavors to ensure access to care for all patients; therefore be it
RESOLVED, That the policy of many third party payers including Anthem of denying payment for Emergency Medical Services is in opposition to the prudent layperson definition of an emergency and federal EMTALA laws; and be it further
RESOLVED, That ACEP work with Anthem and other third party payers to ensure access to and subsequent reimbursement for emergency medical care as defined by the prudent layperson definition of an emergency regardless of the initial presenting complaint, final diagnosis, or access to lower levels of care; and be it further
RESOLVED, That ACEP, in order to promote public health and patient safety, continue to uphold federal EMTALA laws by providing a medical screening examination and appropriate medical care to all patients who request emergency services and ACEP will advocate for subsequent reimbursement for such services; and be it further
RESOLVED, That ACEP continue to advocate for our patients to prevent any negative clinical or financial impact caused by the lack of reimbursement for emergency medical services; and be it further
RESOLVED, That ACEP partner with affected states and the American Medical Association to oppose this harmful policy and the denial of payment for emergency services.
Resolution 40(17) Reimbursement for Emergency Services
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Background
This resolution directs ACEP to continue to uphold federal prudent layperson laws (PLP), advocate for patients to prevent any negative clinical or financial impact caused by the lack of reimbursement for emergency medical services, and partner with affected states and the AMA on these issues. It also calls on ACEP to work with Anthem and other third party payers to ensure access to and subsequent reimbursement for emergency medical care as defined by the prudent layperson definition of an emergency regardless of the initial presenting complaint, final diagnosis, or access to lower levels of care.
History of Prudent Layperson Federal and State Laws
The first PLP law was enacted in the state of Maryland in 1993. Three years later, the National Association of Insurance Commissioners (NAIC) drafted the Managed Care Provider Network Adequacy and Contracting Model Act (Model Act) which included the PLP standard. This step recognized the need to require the provision of coverage for emergency services based upon presenting symptoms rather than the ultimate diagnosis. The Model Act differs only slightly from the PLP in the Patient Bill of Rights, part of the 2010 Affordable Care Act (ACA) passed by the 111th Congress. The NAIC model includes the appropriate "concept" of a PLP that applies to patients with presenting symptoms rather than subsequent final diagnosis to the emergency department. As of July 1, 2017, 47 states and the District of Columbia have adopted a PLP law covering access to emergency medical care.
Federally, the Balanced Budget Act of 1997 originally implemented the PLP for Medicaid Managed Care and Medicare recipients and was the prequel to the ACA language standard subsequently adopted as the model for all health plans. However, this remains a source of legislative and regulatory controversy across many states. As previously mentioned, the 2010 ACA Bill of Rights adopted PLP language, however individual insurers have continued to try to reduce payments for emergency care they deem to be non-emergent.
Challenging the Anthem Policy on Retrospective Denials and Down Coding
Anthem has rolled out a policy in Georgia, Indiana, Kentucky, and Missouri, that retrospectively denies coverage for ED services providing care for conditions they deem not to be actual emergencies and that could have been effectively treated in a lower acuity setting. Since May 2017, ACEP has been actively monitoring and challenging the policy and has been protesting an extensive list of diagnoses that Anthem deems to be non-emergent. For ED use, Anthem recommends the following; “You should always go to the ER if you believe your life or health is in danger. However, for less severe injuries or illnesses, the ER can be expensive and wait times can average over 4 hours”; although, the policy lists conditions that may require immediate screening for more serious diagnoses.
ACEP sent a letter to Anthem’s President and CEO Joseph Swedish in August 2017 asking him to immediately cease their policy, citing PLP violations. In that letter, ACEP provided data from a study that showed of nearly 35,000 unique ED visits, 6.3% of visits were determined to have primary care–treatable conditions based on discharge diagnosis, yet the chief presenting complaints reported for these ED visits were the same chief complaints reported for 88.7% of all ED visits. Of these visits, 11.1% were serious enough to be identified at ED triage as needing immediate emergency care, and 12.5% required hospital admission. The letter also challenged the nature of the cases Anthem exempted from the policy; patients 13 years of age or younger, patients directed to the ED by a physician, patients not within 15 miles of an urgent care center, and/or the visit occurs on a Sunday or major holiday, as being arbitrary or unclear. It closes by expressing concern about patients with true emergencies that could delay needed care because of fear that they would be stuck with large bills.
As of the writing of this background material, ACEP’s Washington, DC Office staff initiated a public relations campaign to push back on Anthem’s policy in the media and proposed to the ACEP Board a comprehensive plan to involve third party stakeholders, while simultaneously seeking relief from congressional and state legislature leaders. On the regulatory front, ACEP is considering a meeting with the Department of Health & Human Services (DHHS) and the Center for Consumer Information & Insurance Oversight (CCIIO) at the national level and encouraging chapters to involve their state insurance commissioners in the fight. CCIIO is charged with helping implement many reforms of the ACA and oversees the implementation of the provisions related to private health insurance.
ACEP will also develop a toolkit to reach out to third-party stakeholders to begin an ACEP-led outreach to all impacted groups to ensure a coordinated approach and encourage information sharing and a unified message. Congressional and state legislative activity has focused on identifying legislative champions to lead various efforts to halt implementation of the policy. For example, Congressional pressure on the Anthem plan in their state, Congressional pressure on the insurance commissioner within their state to limit enforcement, Congressional outreach to DHHS or CCIIO to encourage their action, and a Hill briefing (panel of emergency physicians, consumer representative, impacted patient). In the states, ACEP is working with chapters to identify champions in the state legislatures and/or governors’ offices who might have influence with the insurance commissioner, develop op-eds in key markets to influence state lawmakers, and work with chapters to encourage impacted constituents to write to their legislators.
To support all of this work, efforts are being made to track and collect payment denials by Anthem in states where the policy has taken effect. Billing companies, ED groups, and Academic Chairs in those states were asked to report any data or observations of denials that violate the prudent layperson standard. The ACEP DC office launched a website to collect patient stories of denials, and is beginning to publicize it more broadly. Finally, ACEP will continue to explore legal options to prevent Anthem from enforcing this policy, including possible injunctions.
Current AMA Policy on Prudent Layperson
The AMA House of Delegates adopted the following resolution at the June 2017 annual meeting:
RESOLVED, That our American Medical Association work with state insurance regulators, insurance companies and other stakeholders to immediately take action to halt theimplementation of policies that violate the “prudent layperson” standard of determining when to seek emergency care. (Directive to Take Action)
The AMA sent a letter on June 29, 2017, asking Anthem to rescind the policy citing federal patient protections under PLP, forcing patients to make clinical judgment calls without proper training, and reducing the value of having health insurance coverage.
ACEP Strategic Plan Reference
Goal 1 – Reform and Improve the Delivery System for Acute Care
Objective C – Pursue strategies for fair payment and practice sustainability to ensure patient access to care.
Fiscal Impact
Budgeted committee, staff, and consultant resources. Additional travel expenses of approximately $5,000 to meet in person with Anthem. Additional unknown expenses if legal action is initiated
Prior Council Action
Resolution 28(15) Standards for Fair Payment of Emergency Physicians referred to the Board. Directed ACEP to increase resources related to establishing and defending fair payment standards for emergency physician services by monitoring state-by-state changes, developing model legislation, providing resources to chapters, and encouraging research into the detrimental effects of legislation that limits the rights of emergency physicians to fair payment.
Resolution 38(05) Proper Payment Under Assignment of Benefits adopted. Directed ACEP to advocate for legislation and regulation to ensure that when authorized by the patient, A payer directly reimburses the provider for care.
Amended Resolution 34(02) Funding for EMTALA-Mandated Physician Services adopted. Directed ACEP to collaborate with other organizations to to lobby the federal government to fund EMTALA-mandated services not covered by current funding mechanisms
Amended Substitute Resolution 30(01) Inconsistent EMTALA Enforcement adopted. Directed that ACEP solicit member input to formulate and submit recommendations to CMS EMTALA advisory process and other appropriate bodies, including recommendations for clarifying medical staff on call responsibilities, obtaining greater consistency of EMTALA enforcement among CMS regional offices, protection of peer review confidentiality, and utilizing consultative peer review for issues involving medical decision making.
Amended Substitute Resolution 15(00) EMTALA adopted. This resolution called for the College to work with
Appropriate organizations and agencies to improve EMTALA for emergency departments; and that the
Board of Directors report back to the membership regarding progress on these endeavors at the 2001
Leadership/Legislative Issues Conference.
Amended Substitute Resolution 24(98) HMO Practices referred to the Board. The resolution called for the College to support a requirement that when a patient calls their HMO with questions regarding medical care, that decisions are made by an appropriate licensed professional according to sound triage protocols developed by qualified individuals.
Substitute Resolution 21(98) EMTALA: Mandatory Reporting of Suspected Violations adopted. The
resolution called for the College to investigate and report back on the establishment of an ACEP office of
EMTALA usage and compliance for the development of continuing programs for comprehensive regulatory
monitoring, member and public education and the coordination of legal and regulatory advocacy for an
environment which is conducive to appropriate emergency practice.
Resolution 43(97) Prudent Layperson Legislation adopted. Directed ACEP to study the problem of retroactive denial of payment and the impact of passage of the prudent layperson definition in state that have the definition in law.
Substitute Resolution 18(96) EMTALA and Health Care Insurance Entities adopted. This resolution called on the College to continue its current efforts with appropriate government agencies and other interested parties regarding the following EMTALA issues: (1) the role that health care insurance entities have played in denying access to emergency care to their beneficiaries, and ensure that those entities come under the jurisdiction of the statute; (2) the distorted interpretation and misuse of the original intent of the statute; and (3) seeking relief from the onerous implications of the law in light of managed care; and report back to the Council at the 1997 meeting.
Resolution 52(95) Managed Care Plans - Access to Urgent/Emergent Care referred to the Board of Directors, due to ongoing efforts in support of United States House of Representatives bill H.R. 2011. This resolution called for the College to urge managed care organizations to adopt a “prudent layperson” definition to ensure access to timely emergency care for all subscribers.
Substitute Resolution 39(90) Amendments to COBRA adopted. This resolution called for the College to expand its position statement on the definition of bona fide emergency to include reference to the fact that medical evaluation is necessary to ascertain if a bona fide emergency exists and is mandated by federal patient transfer laws.