Please click here to read another article about Anthem’s ED policy.
What is Advocacy?
It is easy to dismiss advocacy as simply “politics” or efforts best left to lobbyists. However, as emergency physicians, you practice advocacy every day. Every time you stand up on behalf of a vulnerable patient, or struggle to obtain the resources you need to provide quality emergency care for your community you are acting as an advocate.
Unfortunately, the challenges that we must face in order to provide high quality care for our patients goes beyond our local emergency departments and hospitals. Laws such as EMTALA, HIPAA and the Affordable Care Act impact our practice on a daily basis. As emergency physicians, we must work together to insure that safe and high quality emergency care continues to be available to our patients — wherever and whenever we are needed!
What Are Some Examples of Legislative and Regulatory Issues?
Listed below are brief descriptions of important issues that both MOCEP and ACEP are working on. This is not an all-inclusive list, but rather a brief background on more commonly discussed issues. Under the “Our Policies” page, you will find Missouri specific issues that have been debated and our stance.
Time Critical Diagnosis (TCD)
As part of this hospitals, and therefore the physicians working there, needed to meet certain requirements. From MOCEP’s perspective, maintaining board certification in Emergency Medicine should accomplish the continuing educational requirement. When the system was being designed, we did understand that certain physicians, generally higher up in the administration, might have more stringent CME requirements. We believe this is where things went wrong and legislation was misinterpreted.
Somehow the Department of Health and Human Services decided that all EM physicians would be required to have 10 hours annually in stroke, STEMI, and trauma. Once again, we do not believe that was the original intent of the legislation. In addition, thirty hours of CME on just these 3 disease processes would not leave EM physicians with time to review or update themselves on any other subjects. In essence, this requirement could actually make care worse. Missouri only requires 25 hours a year of CME for licensing. In addition, we also did not believe this was the best use of an EM providers time as there is generally not 30 hours worth of new material needing to be reviewed on these 3 topics every year.
As such, MOCEP attempted to discuss this with the Department of Health and Human Services numerous times. Each time we left the meeting feeling as if we made progress only to see nothing change. Last year we were successful in passing legislation that took TCD requirements out of the purview of the Department of Health and Human Services and placed them under the Board of Healing Arts. MOCEP is currently working with other organizations to develop regulations that make sense and are satisfactory to all those involved. Our goals to minimize CME requirements for board-certified physicians need to be balanced with making sure those physicians not certified in emergency medicine are receiving the proper amount of continuing education.
Medicaid patients are generally as sick as other patients are when they seek emergency care. The majority of these patients (ages 21 to 64) seek emergency care with the symptoms of urgent or more serious medical conditions, according to a report from the Center for Studying Health Systems Change. According to this report, many assessments of “unnecessary” use of emergency care incorrectly look at patients’ final diagnoses, instead of patients’ symptoms and why they are seeking emergency care. If a patient thinks they have broken their ankle but it turns out to be a bad sprain, they still made the right choice by seeking emergency care.
A recent survey found seven in 10 Americans oppose health plan efforts to deny payments for ER visits. Eighty-five percent of respondents with regular medical providers who sought emergency care said they could not have waited to see their regular providers.
Cuts would increase the burden on emergency departments, threatening their ability to meet the emergency care needs of everyone. Emergency departments are required by federal law to provide medical care regardless of whether a person can pay. Reductions would have a double impact on state Medicaid programs because they receive matching federal dollars. Many states have taken advantage of federal program waivers to change coverage and/or eligibility requirements in the wake of continuing state budget deficits.
Cuts could affect community health centers (CHCs), which derive more than one-third of their total revenue from Medicaid. This could reduce CHCs capacity in a given area and increase use of the emergency department for patients who have no other place to get care.
When other physicians refuse to accept Medicaid patients because reimbursements are so low, patients often have no choice but to turn to emergency departments for care, often after their illnesses become acute. Thirty-one percent of physicians polled by the National Center for Health Statistics expressed an unwillingness to take on new Medicaid patients, compared with 17 percent who didn’t want to accept new Medicare patients and 18 percent who said they weren’t going to accept new privately insured patients. The survey also found that “small practices and, to a certain extent, primary care physicians – had lower-than-average acceptance rates of new Medicaid patients.”
Emergency medical care for all patients — insured and uninsured alike — is just 2 percent of all health care spending in the United States.
In response to budget crises, state Medicaid officials in many states have been using the “Billings algorithm” to deny coverage for emergency department visits based on final diagnosis discharge codes, rather than the symptoms that brought the patients to the emergency department. For example, a patient with chest pain, a possible indicator of a heart attack, may be discharged with a diagnosis of heartburn, a non-urgent condition. It applies 20-20 hindsight to health care and in the ER that is bad medicine.
For more information: ACEP Medicaid Fact Sheet
MOCEP does realize the importance in cutting costs. However, we want to do that in a manner that improves patient care and does not alienate patients. To that extent, MOCEP is working with other organizations on a proposal that would do just that called MMERP. It is aimed at the superutilizers. In essence, we would build a medical home for these patients where they could get the care that they need. To do this, EDs around the state would incorporate EDIE or a similar program. EDIE is a program that would automatically flag charts in the electronic health record. By simply clicking on an icon, the ED provider could see recent testing, notes, and medications for these patients. Instead of repeating large work-ups that had just been completed, the provider could make sure nothing new was occurring and then redirect the patient back to their established care plan. MMERP would save money by assisting physicians in foregoing large and expensive ED evaluations and getting these patients into a medical home which will improve their care. This proposal is still in the early stages but we believe it will improve care while making it more efficient. References to MMERP have already begun to replace LANE in the current budget.
We believe EMTALA is a good thing and believe most EM physicians are honored that they will treat any patient in need, something unique to our specialty. However, we also realize this puts us at substantial risk as often we are forced to make critical decisions on patients we have little to no pre-existing relationship with very little information. In addition, consultants are often hesitant to evaluate or treat our patients, as they do not want that extra risk which may come with minimal reimbursement. MOCEP is advocating for current legislation that would place all care delivered by emergency providers or their consultants under federal protection. Essentially, we would be treated just like providers at federal health care centers are treated if they are sued. We believe this would be good for us and our patients as it would better protect us and, hopefully, make it easier for us to get on-call providers to treat our patients.Main Points
- EMTALA [Emergency Medical Treatment and Labor Act] is a federal law that requires hospital emergency departments to medically screen every patient who seeks emergency care and to stabilize or transfer those with medical emergencies, regardless of health insurance status or ability to pay — this law has been an unfunded mandate since it was enacted in 1986.
- America’s emergency departments are under severe stress, facing soaring demands; many have closed because of uncompensated care due in part to the unfunded EMTALA mandate.
- Emergency physicians are dedicated to providing the highest quality emergency care to all.
- Emergency departments are essential to every community and must have adequate resources.
- ACEP advocates for recognition of uncompensated care as a practice expense for emergency physicians and for federal guidance in how fulfill the requirements of the EMTALA mandate in light of its significant burden on the nation’s emergency care system.
- EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd). Its original intent and goals are consistent with the mission of ACEP and the public trust held by emergency physicians.
- Originally referred to as the “anti-dumping” law, it was designed to prevent hospitals from refusing to see or transferring financially “undesirable” patients to public hospitals without, at a minimum, providing a medical screening examination and treatment to ensure they were stable for transfer. As a result, local and state governments began to abdicate responsibility for indigent care, shifting this public responsibility to all Medicare participating hospitals.
- Hospitals and physicians violating EMTALA are subject to civil monetary penalties ($50,000 per violation) and threat of Medicare decertification. Between March, 2008 and May, 2012, there were 35 EMTALA violations that netted a little more than $3 million.
- EMTALA has become the de facto national health care policy for the uninsured. It requires Medicare-participating hospitals with emergency departments to screen, stabilize and treat patients with emergency medical conditions in a non-discriminatory manner, regardless of ability to pay, insurance status, national origin, race, creed or color. Ninety-two percent of all hospitalizations for the uninsured are directly linked with an emergency department visit.
- The Institute of Medicine in 2006 recommended that the U.S. Department of Health and Human Services adopt regulatory changes to EMTALA and the Health Insurance Portability and Accountability Act (HIPAA) so the original goals of the laws are preserved.
- It remains to be seen how the implementation of health care reform may affect emergency departments and emergency patients. Evidence from Massachusetts indicates emergency visits will rise with increase in financial pressure due to cost saving measures imposed by health plans. EMTALA may have new found impact as the healthcare system adjusts to these new parameters.
- 1. Any individual who comes and requests examination or treatment of a medical condition must receive a medical screening examination to determine whether an emergency medical condition exists. This cannot be delayed to inquire about methods of payment or insurance coverage. Emergency departments also must post signs that notify patients and visitors of their rights to a medical screening examination and stabilizing treatment.
- 2. If an emergency medical condition exists, treatment must be provided until it is resolved or stabilized. If the hospital does not have the capability to stabilize the emergency medical condition, an “appropriate” transfer to another hospital must be done in accordance with the EMTALA provisions.
- 3. Hospitals with specialized capabilities are obligated to accept transfers from hospitals who lack the capability to treat unstable emergency medical conditions.
Additionally, a hospital must report any time it has reason to believe it may have received an individual who has been transferred in an unstable condition in violation of EMTALA.
In addition, the transfer of unstable patients must be “appropriate” under the law, such that (1) the transferring hospital must provide ongoing care within it capability until transfer to minimize transfer risks, (2) provide copies of medical records, (3) must confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and (4) the transfer must be made with qualified personnel and appropriate medical equipment.
- Termination of the hospital or physician’s Medicare provider agreement.
- Hospital fines up to $50,000 per violation ($25,000 for a hospital with fewer than 100 beds).
- Physician fines $50,000 per violation, including on-call physicians.
- The hospital may be sued for personal injury in civil court under a “private cause of action.”
A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages.
An adverse outcome does not necessarily indicate there is an EMTALA violation; however, a violation can be cited even without an adverse outcome. There is no violation if a patient refuses examination &/or treatment unless there is evidence of coercion.
Some health insurance plans retrospectively deny claims for emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). These practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety net.
ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.
For more information: ACEP EMTALA Fact Sheet
Medical Liability Reform
- Between 1996 and 2001, the average liability award increased 107%. (Jury Verdict Research, 2002)
- The average jury award is $3.9 million. 54% of all awards were for $1 million or more. (Jury Verdict Research, 2002)
- On average, the cost of defending cases that physicians win is more than $90,000. (Physicians Insurers Association of America, 2003)
- In 2002, medical liability insurers paid out more in claims than they received in premiums. For every $1.00 received in premiums, they paid out $1.42 in claim costs. (AM Best Aggregates and Averages, 2003)
- Median insurer premiums, adjusted for inflation, increased 55.86% between 1996-2002. (NAIC)
- Median insurer losses incurred increased 139% from 1996-2001. (NAIC)
- 56% of Blue Cross/Blue Shield plans in crisis states report that physicians are leaving their practice, retiring or no longer performing higher risk procedures. (Blue Cross/Blue Shield report, 2003)
- 26% of health care facilities have reacted to the liability crisis by cutting back on services and/or eliminating some patient care units. (American Hospital Association TrendWatch, 2002)
- Medical liability costs add $60 to $108 billion to the cost of health care each year, diverting health care dollars away from direct patient care and research. (US Department of Health and Human Services, July 2002)
- HHS also believes that excessive medical liability adds $47 billion annually to what the federal government pays for Medicare, Medicaid, SCHIP, VA health care and other government programs. (HHS Report: Confronting the New Health Care Crisis)
- The current tort system is highly inefficient in compensating injured parties, returning less than 50 cents on the dollar to the people it’s designed to help. (“US Tort Costs” Tillinghast-Towers Perrin, December 2003)
- A 2002 survey by Wirthlin Worldwide, Inc. showed that 72 percent of respondents, while favoring measures to allow full payment for lost wages and medical expenses in medical liability cases, support reasonable limits on “pain and suffering” awards. The same question has shown that 70% or more Americans have shared this view in 1992, 1995, 1999, and now 2000.
- Approximately 80 percent of Americans favor a law to limit the percentage that a personal injury lawyer can receive as a fee from any settlement or award.
- A study by Stephen Zuckerman et al. looked at several types of reforms and concluded that capping physician liability reduced premiums for general surgeons by 13% in the year following enactment of that reform and by 34% over the long term. Premiums for general practitioners and OB/GYNs were impacted similarly. (Effects of Tort Reforms and Other Factors on Medical Malpractice Insurance Premiums)
- In a different study by Kessler and McClellan, those researchers found “that malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications. (Do Doctors Practice Defensive Medicine)
- The National Association of Insurance Commissioners states that while total premiums in the rest of the U.S. have risen 569%, California premiums have risen only 182% since 1976, after the passage of MICRA.
- The Agency for Healthcare Research and Quality found that by 2000, states with damage caps averaged 12 percent more physicians per capita than states without damage caps.
For more information: Liability Reform Data to Support Reform and Rebut Opponent Arguments
- AAMC analysis confirms likely significant shortage in coming years across a broad range of specialties.
- Population growth, aging and medical advances are increasing demand.
- Aging of physicians and work patterns of younger physicians will limit growth of supply.
- Shortages are already apparent and competition for physicians is increasing.
- MD and DO 1st year enrollment will rise by nearly 6,000 per year between 2002 and 2013.
- GME is unlikely to keep pace. This will probably lead to a reduction in IMGs and limit the supply of physicians and a peaking of the physician to population ratio in the next few years.
- The recession is slowing the growing shortage but health care reform will increase it.
- Increasing physician supply has to be part of a mulch-faceted effort to assure access including increased use of non-physician clinicians and innovations in service delivery.
- Continue to increase medical school enrollment.
- Increase GME positions.
- Assure that we are using our physicians wisely and effectively.
- Increase use of teams including non-physician clinicians (this will require inter-disciplinary education and practice).
- Improve efficiency and effectiveness, including through evidence based medicine, comparative effectiveness studies, improved IT and EMR.
- Design service delivery responsive to needs of younger and older physicians, such as flexible scheduling and part time work.
ACEP Leadership and Advocacy Conference
We all have a critical role to play in health care reform. Join emergency medicine leaders from throughout the country in shaping that future at ACEP’s Leadership and Advocacy Conference. Thought-provoking, inspiring and challenging sessions by nationally recognized speakers and key decision makers will provide you the inside information and skills you need to maximize your impact as an emergency medicine leader and advocate. This meeting is generally held each spring in Washington, DC.
ACEP will schedule Capitol Hill visits for you with key legislators and staff through Soapbox Consulting, LLC. You will not need to contact your legislators’ office directly regarding your appointments. The conference continues to grow each year and is considered by many to be the best conference that ACEP organizes. In addition to meeting with Senators and Representatives, multiple lectures update attendees on changes in healthcare impacting emergency medicine. In 2017, we had a record 18 physicians representing the state of Missouri.Registration Fees & Conference Benefits
In addition to an exemplary educational experience, your conference registration fee includes 3 breakfasts, 2 luncheons, 2 receptions, transportation to Capitol Hill for visits with your legislators, and daily breaks which include refreshments. The per-registrant cost of food and beverages alone is nearly $500, making these nominal fees an exceptional bargain and member benefit.
For more information on registration: Leadership and Advocacy Conference
The Senate and House bills were all voted out of committee last week. We have been pushing for the physician reviewing the chart to be board certified in emergency medicine. While we’ve been very successful with other key language in the bill, we are not sure if this part will make it through to the final version of the bill. It may get diluted to a board certified physician practicing in emergency medicine. Of course, we’ll still push for board certified in emergency medicine as long as we can. Senator Schupp has added some balance billing language into the bill. It would eliminate surprise billing but payment would be made directly to providers. Additionally, insurance payments would be based on specific benchmarks. There would also be an avenue for mediation. We are continuing to work on this as well.
Additionally, HB 2718 was also submitted which basically prohibits out of network providers from billing patients if they went to an in network facility. The sponsor is really just trying to look out for patients. Unfortunately, this is a bad bill and we’re going to fight against it. ACEP is working at a federal level on a bill that would hopefully fix this.
The EMS omnibus bill continues to make progress. Its main purpose would be to prevent law enforcement from trying to make EMS draw blood for legal reasons if that is not something in their protocols.
HB 2384 would hopefully increase resources for mental health. It would require insurance companies to provide equivalent benefits for mental and physical illnesses.
Opioid legislation is also being discussed. Current bills would limit opioid prescribing for acute painful conditions to 7 days. It also includes language for take back program and removes pain control as a factor for patient satisfaction scores. There is also opioid CME language which we definitely will be pushing against.
Last week, the House Energy and Commerce Committee approved the ACEP-supported “Good Samaritan Health Professionals Act of 2017.” This Good Samaritan liability legislation (H.R. 1876), sponsored by Rep. Marsha Blackburn (R-TN), shields a health care professional from liability for harm caused by any act or omission if: (1) the professional is serving as a volunteer in response to a disaster and (2) the act or omission occurs during the period of the disaster, in the professional’s capacity as a volunteer, and in a good faith belief that the individual being treated is in need of health care services.
The bill now heads to the full House of Representatives for its consideration.
WASHINGTON — Missouri patients are still at risk from Anthem’s policy to deny coverage for emergency patients, despite increasing the number of “always pay” exceptions and an acknowledgment that coverage should be based on symptoms, not final diagnosis, a standard that is part of federal law, according to the American College of Emergency Physicians (ACEP). In response to Anthem’s policy changes in Missouri, Paul Kivela, MD, MBA, FACEP, president of ACEP, released the following statement:
“The changes to Anthem’s policy in Missouri do not address the underlying problem of putting patients in a potentially dangerous position of having to decide whether their symptoms are medical emergencies or not before they seek emergency care, or pay the entire bill if it’s not an emergency. The additional always-pay exceptions, such as patients who receive surgery, IV fluids or IV medications, MRI or CT scans, or hospital admission, should have always been exceptions.
“Patients should not be forced to diagnose themselves out of fear their insurer won’t pay. Most patients can’t be expected to determine, for example, the difference between abdominal pain that is life-threatening and abdominal pain that isn’t. It’s impossible for a patient to know before going to the emergency room whether they’ll receive there the IV fluids, MRI, or surgery needed to ensure their visit will be covered. The decision to ‘ride it out’ instead of seeking emergency care could lead to life-long disability or even death.
“In addition, Anthem’s denials process still leaves patients on the hook financially, which could be crippling or credit-destructive, even for employed individuals. Insurance company reviews can take months, leaving patients with expenses they should not have been asked to pay.”
Beginning in mid-2017, Anthem BCBS began warning patients first in Missouri, Georgia, and Kentucky, and then Ohio, New Hampshire and Indiana, that if the ER visit ends with a diagnosis for something that isn’t an emergency, that visit will not be covered by insurance.
ACEP is the national medical specialty society representing emergency medicine. ACEP is committed to advancing emergency care through continuing education, research and public education. Headquartered in Dallas, Texas, ACEP has 53 chapters representing each state, as well as Puerto Rico and the District of Columbia. A Government Services Chapter represents emergency physicians employed by military branches and other government agencies.
MOCEP President, and other ACEP Chapters are quoted in this article from Consumer Reports regarding Anthem’s denials of patient claims after they have visited the Emergency Department. We believe Anthem’s policy is a violation of the Prudent Layperson Standard. Please share this story, and notify us if you have a patient that has received a denial and would be willing to share their story.
The MOCEP Board has been hard at work pushing back against Anthem and their plan to retroactively determine what is and what is not an emergency. This includes working with state legislators on a legislative fix, testifying in Jefferson City, and holding multiple meetings with them and the Missouri Hospital Association over the last few weeks.
Both the House Insurance Policy Committee and Senate Health and Pensions Committee held hearings last week about Anthem. This included reviewing HB 2225 sponsored by Representative Mike Henderson and SB 828 sponsored by Senator Bob Onder, MD. The bills are identical and would require review of the charts by a board certified emergency physician prior to declining payment. Additionally, the insurance company would have to pay the physician and then determine if they wanted to try to collect the payment from the patient.
We have a meeting scheduled with Anthem this week and will provide an update once we have more to tell.
Dr. Steve Stack, an emergency physician and former President of the AMA, testifies in Kentucky during a hearing about insurance companies and surprise billing. The entire video is approximately 1 hour but Dr. Stack begins to testify around minute 26 if you only want to watch part of the video. While in Kentucky, the bill would resolve issues about surprise billing due to insurance company business practices.
SB 928 and HB 2225 were introduced last week. They are sponsored by Senator Bob Onder, MD and Representative Mike Henderson. The bills do multiple things. Importantly, they address the procedure of retrospectively denying emergency services by just using ICD or E/M codes. The bill mandates that the insurer review the entire chart prior to retrospectively denying the service and that the denial can’t be based on coding. Additionally, it must be a board certified emergency physician reviewing the chart, and if they do issue a denial, then the payment should still go to the physician and they can work to obtain a refund from the patient and not place physicians in the middle.