Out-of-network ER pay and charges fuel ire from docs and patients alike, -AND- ER docs sue HHS over out-of-network payments

CAL/AAEM News Service calaaem.news.service at gmail.com
Sun May 29 10:48:44 PDT 2016

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Chapter of the American Academy of Emergency Medicine


May 21, 2016

Out-of-network ER pay and charges fuel ire from docs and patients alike


Modern Healthcare


By Maria Castellucci


The quarrel over surprise medical bills continues to escalate, and emergency
room physicians are now suing the Obama administration in a bid to shift
more of the blame to insurers. 


The Affordable Care Act includes a provision intended to mitigate the
negative impact on patients when they get emergency care from providers who
aren't part of their health plan's network, and HHS' regulations on the
provision lay out a framework for what those providers should get paid.


Providers are under intense pressure to avoid billing patients for the
difference, or balance, between their charges and what insurers pay them for
out-of-network services. That's true especially in cases where patients
didn't realize an out-of-network clinician was involved in their
treatment-or, as with emergency services, they had little or no choice about
where they received care. 


The American College of Emergency Physicians says its members have been
cornered into choosing between balance billing and finding a new line of
work. The organization argued in a lawsuit filed last week that HHS allows
insurers to determine out-of-network rates based on their proprietary
databases of historical charges. 


For out-of-network emergency care, the law bars insurers from charging
patients higher coinsurance and copayments. But it doesn't prohibit balance
billing or require insurers to cover those bills. 


HHS has interpreted the law to mean that health plans must reimburse
out-of-network providers for a "reasonable" amount of their usual charges
before a patient is on the hook for the balance. The government has decided
that means providers should be paid whatever amount is the greatest of three
options: the Medicare rate; the median in-network rate; or the usual,
customary and reasonable charge, or UCR. 


The UCR is usually the highest rate and has been the subject of significant
controversy. The ACEP complaint, filed in U.S. District Court for the
District of Columbia, argued that HHS has dismissed repeated pleas for an
objective standard for UCR charges. HHS also changed the word "charge" to
"amount" in the final rule, which ACEP said in the lawsuit gives insurers
more room to game the numbers.


Clare Krusing, spokeswoman for America's Health Insurance Plans, said the
trade group couldn't comment on pending litigation. But she said UCRs are
significantly higher than Medicare rates and "emergency room doctors cannot
demand a blank check from patients at a time when everyone is focused on




With the general consensus that patients shouldn't get stuck in the middle,
lawmakers and regulators will continue to face demands to mediate the feud
over out-of-network pay.


In 2009, UnitedHealth Group agreed in a settlement with the New York
attorney general to pull the plug on its Ingenix database of charge data
that most insurers used to crunch their UCR rates for out-of-network care.
UnitedHealth and several other companies also agreed to fund an independent
not-for-profit organization to take the database's place. 


ACEP said in its lawsuit that HHS ignored its concerns that insurers would
manipulate the numbers unless they were transparent and could be
independently verified.


"We should be able to say: 'How did you calculate this?' " said ACEP
President Dr. Jay Kaplan. Kaplan also said his colleagues are worried they
won't have any protections in states such as New York that restrict
physicians' ability to balance bill. 


More state lawmakers are trying to police the issue. Florida recently
enacted a law protecting patients from having to pay out-of-network bills
when they go to a facility in their network and inadvertently receive
treatment from an out-of-network provider there. Legislation similar to the
New York law is pending in California, which already bars emergency
physicians from balance billing. 


Experts say it's difficult to achieve data transparency, and that the
emergency physicians' complaint doesn't address the surprise medical bills
customers receive. 


Karen Pollitz, senior fellow at the Kaiser Family Foundation, said
transparency would allow out-of-network costs to be easily tracked. But, she
said, the customer is still going to be left with additional fees. 


Betsy Imholz, special projects director at Consumers Union, said most states
have protections for emergency physicians so they are adequately paid for
out-of-network services. 


Imholz also said variation in physician charges from state to state would
make it difficult to address data transparency unilaterally across the
country. And, she added, the transitional period that the entire industry is
experiencing makes it "unsustainable to get paid what they had received in
the past."


May 17, 2016


ER docs sue HHS over out-of-network payments


Modern Healthcare


By Maria Castellucci


The American College of Emergency Physicians is suing HHS, claiming a
provision of the Affordable Care Act allows insurers to underpay for
out-of-network emergency medical services.


The federal lawsuit asks that insurers be transparent on the data they're
using to pay for services rendered by an out-of-network hospital.


The ACA established that in these cases, insurers must pay the greatest of
three costs: the insurers' in-network amount, the Medicare amount or the
usual, customary and reasonable amount. The UCR, the amount physicians
charge for care, is often the greatest of the three.


Insurers previously have been accused of manipulating UCR figures to lower
their obligation, leaving patients with a greater amount to pay out of
pocket. Some states require the ER physician to accept the insurers'
payment, even if it is far below the doctor's set fee.


The ACEP is asking the federal government to overturn and amend the


The government has not yet responded to the lawsuit, according to Dr. Jay
Kaplan, president of the American College of Emergency Physicians, which
represents 34,000 physicians.


Requests for comment from the government were not immediately successful
Tuesday afternoon. 


Kaplan said insurers should be required to be transparent with their data. 


"We should be able to say: How did you calculate this? And show us the
data," said Kaplan, who has been an emergency medicine physician for 37


Kaplan said emergency room physicians are more likely to treat
out-of-network patients because the Emergency Medical Treatment and Labor
Act requires them to care for anyone who walks into an emergency room
regardless of their ability to pay.


Kaplan said his colleagues are worried they won't have any protections in
states that prevent unexpected out-of-network bills, such as New York, which
requires insurers and providers that disagree on out-of-network payment to
go through an independent dispute-resolution process.



Jeff Wells
Deputy Editor, CAL/AAEM News Service


Brian Potts MD, MBA
Managing Editor, CAL/AAEM News Service

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