For the past few years, out-of-network billing (also known as surprise billing) has been a central focus of ACEP’s federal advocacy efforts, building on years of state-level advocacy on this issue. The end result of this political battle could have widespread ramifications for ACEP members, so it’s critically important that ACEP presents a strong, unified voice for emergency physicians against the powerful insurance companies that are trying to shift costs and deflect blame. This issues places reimbursement and the reputation of emergency physicians at risk.

Reimbursement

Surprise billing legislation will set payment rates for care you provide to out-of-network patients. Various proposals are being set forth by stakeholders involved in this debate, but here’s what you need to know:

• If the legislation uses a “benchmark” to cap rates for out-of-network emergency care, then even future in-network rates will likely decrease over time, since the out-of-network cap will impact future contracting dynamics between insurers and physician groups.
• If the legislation uses a “bundling” approach, physician groups will no longer be allowed to contract directly with insurance companies, only with hospitals. The insurers will only contract with hospitals, and the hospital will receive a “bundled” payment from the insurer for a patient encounter and then pass on a portion of that bundle to any emergency physicians it contracts with who were involved in that patient’s care. If this approach were to signed into law, it would be hugely disruptive to the system and could drastically impact physician reimbursement rates.

Instead of the benchmark and bundling proposals put forth by other stakeholders, ACEP is advocating for legislation that would implement a “baseball-style” arbitration system to settle billing disputes between insurers and physicians, such as the systems used in New York, which passed its own surprise billing legislation in 2014. This arbitration mechanism provides a fair and unbiased way to resolve billing disputes and takes the patient completely out of the middle. It is the least disruptive because it takes a “loser pays” approach, encouraging insurers to avoid arbitration altogether by paying for out-of-network services fairly and encouraging physicians to charge reasonably for their services.

Reputation

Much of this conflict over surprise billing is playing out in the media, and insurers have been trying their hardest to paint emergency physicians in a bad light, blaming them for high costs and excessive charges. Our public relations team is working diligently to make sure the emergency physician side of the story is fairly portrayed both with the press and in Congress.

The Fight

Legislation on surprise billing has significant implications for all stakeholders, so it’s been a very long, complicated struggle on Capitol Hill. ACEP has been engaged in these discussions from day one, and we’re not nearly done.

The following is an overview of our advocacy timeline illustrating where we started, what’s happening now, and where we are heading next.

February 2018

• Senate bipartisan price transparency workgroup (Cassidy Workgroup) solicited input from stakeholders on ways to “increase health care price and information transparency to empower patients, improve the quality of health care, and lower health care costs.” ACEP submitted comments urging them to consider the unique aspects of emergency medicine, explaining how EMTALA and the Affordable Care Act “have had the effect of increasing overall volume, while discouraging incentives for health plans to enter into fair and reasonable contracts to provide services at reasonable in-network rates.”

July 2018

• ACEP participated in a roundtable discussion on health care price transparency initiated by the Cassidy Workgroup that included the American Medical Association (AMA), American College of Surgeons (ACS), American Hospital Association, insurers and brokers, and patient advocates. Congress was interested in improving price transparency, identifying ways to help consumers better understand their cost-sharing obligations before receiving treatment.

Aug.–Sept. 2018

• ACEP worked with Congressional offices, including Sen. Bill Cassidy (R-LA), to create a bipartisan agreement on policy that would establish financial protections for patients who received unanticipated emergency care. As this was happening, the Cassidy Workgroup released a draft of legislation that would ban balance billing and, contrary to ACEP’s position, cap payments for out-of-network emergency care at only 125 percent of the average in-network, contracted rates.

Oct.–Nov. 2018

• ACEP continued its efforts to educate members of the Cassidy Workgroup. ACEP Board member, L. Anthony Cirillo, MD, FACEP, and Laura Wooster, ACEP associate executive director for public affairs, participated in the Cassidy Workgroup’s meeting with select providers, insurers, consumer groups, researchers, and FAIR Health, delving further into aspects of arbitration (ACEP’s preferred approach).

Jan.–Feb. 2019

• ACEP President, Vidor Friedman, MD, FACEP, and ACEP Executive Director Dean Wilkerson met with eight influential legislators on Capitol Hill to address ongoing discussions on out-of-network billing and other issues critical to emergency medicine, including drug shortages and access to emergency care.
• Jan. 23: President Donald J. Trump hosted a roundtable at the White House featuring patients affected by surprise medical bills and vowed to take action on the issue.
• Jan. 28: ACEP released its Framework for Protecting Emergency Patients When Care is Out of Network. This proactive legislative proposal would take patients completely out of the middle and would implement an arbitration approach to settle disputes between insurers and physician groups on out-of-network bills, similar to the New York bill that has proven successful since its implementation.
• Jan. 31: Ms. Wooster was a panelist for a briefing hosted by the Senate Health, Education, Labor, and Pensions (HELP) Committee staff. She presented our framework for protecting emergency patients with the group and answered questions from HELP Committee staff about surprise billing issues.
• Feb. 4: ACEP worked with other medical organizations, such as the AMA, ACS, American Society of Anesthesiologists (ASA), American College of Radiology (ACR), and American Association of Neurological Surgeons to identify potential areas of agreement that were shared in a group letter to members of Congress.
• Feb. 5: ACEP developed an extensive response to a letter from the Cassidy Workgroup sent to both plans and provider groups, including ACEP, with a detailed list of questions and requests to submit data to help inform their ongoing efforts to develop surprise billing legislation.
• Feb. 19: ACEP staff, in conjunction with representatives from the AMA, ACS, ASA, ACR, American College of Physicians, and College of American Pathologists, met with the majority and minority staff of the HELP Committee for a briefing and discussion about surprise billing legislation.
• Feb. 26–27: Dr. Friedman met with eight lawmakers who will be instrumental in the development of any surprise billing legislation, including HELP Committee Chair Lamar Alexander (R-TN).

March-April 2019

• ACEP met with senior staff of the White House Domestic Policy Council to discuss the surprise billing issue and educate on the unique aspect of emergency care related to price transparency discussions.
• March 22: Dr. Cirillo spoke on behalf of ACEP during an event sponsored by the Brookings Institution that focused on surprise medical bills. He talked about the individual responsibility of all stakeholders—hospitals, physicians, and insurers—to make sure that patients are kept out of the middle when emergency care is out-of-network and emphasized the success of the arbitration approach in New York.
• April 2: ACEP submitted a statement for the record during the House Education and Labor Health Subcommittee hearing regarding surprise medical bills (no provider groups were represented at this hearing) and met with the committee staff to share the EM perspective.
• April 25: ACEP met with the Congressional Budget Office (CBO) to discuss policy options. CBO is evaluating and scoring various proposals around surprise billing, so it was critical to discuss this issue with them and provide data that supports ACEP’s position on out-of-network reimbursement before formal cost estimates are released.

May 2019

• More than 550 ACEP members representing 47 states traveled to Washington, D.C., for ACEP’s Leadership & Advocacy Conference (LAC). They conducted meetings with legislative offices about issues important to emergency medicine, including surprise billing. Shortly after LAC, President Trump provided a statement outlining the White House principles for surprise billing. ACEP issued a statement of response explaining that “the principles the White House laid out do not go far enough to protect patients.” Our statement explains why we are against the bundled payment approach put forth by the White House. It can be read at newsroom.acep.org.

What’s Next?

Various drafts of bills are in consideration or in the pipeline, including a revised version the Cassidy Workgroup’s bill that incorporates a baseball-style arbitration approach and a bill from the HELP Committee. Stay updated on this issue at https://www.acep.org/federal-advocacy/federal-advocacy-overview/acep4u-out-of-network/.

Ms. Grantham is a communications manager at ACEP.