In a bold, unprecedented move, ACEP sued the federal government to contest a regulation that impedes emergency physicians from receiving reasonable payment for out-of-network services.

At issue is a regulation from the Centers for Medicare & Medicaid Services (CMS) for out-of-network emergency physician payment, which outlines the “greatest of three” options. As written, this rule opens the door for insurers to use black box methods to determine physician payment without providing any means to verify the data.

“It’s clear from the recent CMS ruling that, despite our best efforts, the insurance companies have more influence in terms of federal regulation than physicians do,” said ACEP President Jay Kaplan, MD, FACEP. “The term ‘health insurance company’ is an oxymoron—they exist just to make profits for the shareholders, not for the health care of our patients.”

A Lengthy Fight

Since 2010, ACEP has had numerous meetings with federal officials, sent formal comments, and drafted guidance to voice the concerns of its almost 35,000 members that the “greatest of three” rule cannot be enforced and has the potential to be manipulated by insurers without a transparent database of usual, customary, and reasonable charges.

Receiving little to no concern for this issue from the CMS leadership, the ACEP Board of Directors decided at its April 2016 Board meeting to move forward with a lawsuit urging the courts to rescind this rule.

“Not only is it not fair, we believe it’s a violation of the law,” Dr. Kaplan said. “We want our members to know we are fighting for them and our patients.

“We did our best to be included in the decision making, but it is clear that the insurance companies had an open ear with the regulators, and the regulators had a deaf ear to us,” he added.

In March 2010, shortly after the Patient Protection and Affordable Care Act (PPACA) was passed, CMS released an interim final rule addressing a number of provisions in the law—including patient protections, preexisting conditions, and out-of-network (OON) payment to emergency physicians.

ACEP and others, including the American Medical Association (AMA) and the American Hospital Association (AHA), sent formal comments criticizing the provision on OON payment for being unworkable, but because of tight start-up deadlines in the new law, CMS did not respond.

The issue for physicians and hospitals is the payment of the greatest of three options, described by CMS as: 1) the median in-network negotiated amount; 2) the amount the plan uses for OON services based on usual, customary, and reasonable charges; or 3) the amount paid by Medicare.