American College of Emergency Physicians s6

1 PLEASE NOTE: THIS RESOLUTION WILL BE DEBATED AT THE 2017 COUNCIL MEETING. RESOLUTIONS ARE NOT 2 OFFICIAL UNTIL ADOPTED BY THE COUNCIL AND THE BOARD OF DIRECTORS (AS APPLICABLE). 1

2 3 4 RESOLUTION: 40(17) 5 6 SUBMITTED BY: Indiana Chapter 7 8 SUBJECT: Reimbursement for Emergency Services 9 10 PURPOSE: 1) Continue to uphold federal prudent layperson laws; 2) advocate for patients to prevent negative clinical or 11 financial impact caused by lack of reimbursement; 3) partner with affected states and the AMA; and 4) work with Anthem and 12 other third party payers to ensure access to and subsequent reimbursement for emergency medical care as defined by the prudent 13 layperson definition of an emergency regardless of the initial presenting complaint, final diagnosis, or access to lower levels of 14 care. 15 16 FISCAL IMPACT: Budgeted committee, staff, and consultant resources. Additional travel expenses of approximately $5,000 to 17 meet in person with Anthem. Additional unknown expenses if legal action is initiated. 18 19 WHEREAS, Emergency Medicine is recognized by the American Board of Medical Specialties as an independent specialty 20 with a recognized unique knowledge base and procedural skill set that is certifiable by board examination; and 21 WHEREAS, The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires Emergency 22 Departments to provide a medical screening examination including stabilization and treatment regardless of ability to pay to all 23 patients who present themselves to the Emergency Department requesting medical care; and 24 25 WHEREAS, ACEP supports the “prudent layperson” definition of an emergency medical condition as one in which a person 26 who possess an average knowledge of health and medicine and might anticipate serious impairment to their health; and 27 28 WHEREAS, The range of emergency medical conditions experienced by patients seen in emergency departments is 29 extremely variable and difficult to recognize by patients; and 30 31 WHEREAS, Anthem has announced intention to deny reimbursement for Emergency Medical services when Anthem defines 32 the condition as non-emergent and has requested that providers direct patients to care sites with lower levels of service; and 33 34 WHEREAS, The value of emergency medical services cannot be defined as a presenting symptomatic complaint or final 35 diagnosis; and 36 37 WHEREAS, The Indiana chapter of ACEP supports ACEP in endeavors to ensure access to care for all patients; therefore be 38 it 39 40 RESOLVED, That the policy of many third party payers including Anthem of denying payment for Emergency Medical 41 Services is in opposition to the prudent layperson definition of an emergency and federal EMTALA laws; and be it further 42 43 RESOLVED, That ACEP work with Anthem and other third party payers to ensure access to and subsequent reimbursement 44 for emergency medical care as defined by the prudent layperson definition of an emergency regardless of the initial presenting 45 complaint, final diagnosis, or access to lower levels of care; and be it further 46 47 RESOLVED, That ACEP, in order to promote public health and patient safety, continue to uphold federal EMTALA laws by 48 providing a medical screening examination and appropriate medical care to all patients who request emergency services and ACEP 49 will advocate for subsequent reimbursement for such services; and be it further 50 51 RESOLVED, That ACEP continue to advocate for our patients to prevent any negative clinical or financial impact caused by 52 the lack of reimbursement for emergency medical services; and be it further Resolution 40(17) Reimbursement for Emergency Services Page 2 53 54 RESOLVED, That ACEP partner with affected states and the American Medical Association to oppose this harmful policy 55 and the denial of payment for emergency services. 56 57 Background 58 59 This resolution directs ACEP to continue to uphold federal prudent layperson laws (PLP), advocate for patients to prevent any 60 negative clinical or financial impact caused by the lack of reimbursement for emergency medical services, and partner with affected 61 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 62 subsequent reimbursement for emergency medical care as defined by the prudent layperson definition of an emergency regardless 63 of the initial presenting complaint, final diagnosis, or access to lower levels of care. 64 65 History of Prudent Layperson Federal and State Laws 66 67 The first PLP law was enacted in the state of Maryland in 1993. Three years later, the National Association of Insurance 68 Commissioners (NAIC) drafted the Managed Care Provider Network Adequacy and Contracting Model Act (Model Act) which 69 included the PLP standard. This step recognized the need to require the provision of coverage for emergency services based upon 70 presenting symptoms rather than the ultimate diagnosis. The Model Act differs only slightly from the PLP in the Patient Bill of 71 Rights, part of the 2010 Affordable Care Act (ACA) passed by the 111th Congress. The NAIC model includes the appropriate 72 "concept" of a PLP that applies to patients with presenting symptoms rather than subsequent final diagnosis to the emergency 73 department. As of July 1, 2017, 47 states and the District of Columbia have adopted a PLP law covering access to emergency 74 medical care. 75 76 Federally, the Balanced Budget Act of 1997 originally implemented the PLP for Medicaid Managed Care and Medicare recipients 77 and was the prequel to the ACA language standard subsequently adopted as the model for all health plans. However, this remains a 78 source of legislative and regulatory controversy across many states. As previously mentioned, the 2010 ACA Bill of Rights adopted 79 PLP language, however individual insurers have continued to try to reduce payments for emergency care they deem to be non- 80 emergent. 81 82 Challenging the Anthem Policy on Retrospective Denials and Down Coding 83 84 Anthem has rolled out a policy in Georgia, Indiana, Kentucky, and Missouri, that retrospectively denies coverage for ED services 85 providing care for conditions they deem not to be actual emergencies and that could have been effectively treated in a lower acuity 86 setting. Since May 2017, ACEP has been actively monitoring and challenging the policy and has been protesting an extensive list of 87 diagnoses that Anthem deems to be non-emergent. For ED use, Anthem recommends the following; “You should always go to the 88 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 89 times can average over 4 hours”; although, the policy lists conditions that may require immediate screening for more serious 90 diagnoses. 91 92 ACEP sent a letter to Anthem’s President and CEO Joseph Swedish in August 2017 asking him to immediately cease their policy, 93 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 94 were determined to have primary care–treatable conditions based on discharge diagnosis, yet the chief presenting complaints 95 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 96 enough to be identified at ED triage as needing immediate emergency care, and 12.5% required hospital admission. The letter also 97 challenged the nature of the cases Anthem exempted from the policy; patients 13 years of age or younger, patients directed to the 98 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 99 being arbitrary or unclear. It closes by expressing concern about patients with true emergencies that could delay needed care 100 because of fear that they would be stuck with large bills. 101 102 As of the writing of this background material, ACEP’s Washington, DC Office staff initiated a public relations campaign to push 103 back on Anthem’s policy in the media and proposed to the ACEP Board a comprehensive plan to involve third party stakeholders, 104 while simultaneously seeking relief from congressional and state legislature leaders. On the regulatory front, ACEP is considering a 105 meeting with the Department of Health & Human Services (DHHS) and the Center for Consumer Information & Insurance 106 Oversight (CCIIO) at the national level and encouraging chapters to involve their state insurance commissioners in the fight. CCIIO 107 is charged with helping implement many reforms of the ACA and oversees the implementation of the provisions related to private 108 health insurance. Resolution 40(17) Reimbursement for Emergency Services Page 3 109 110 ACEP will also develop a toolkit to reach out to third-party stakeholders to begin an ACEP-led outreach to all impacted groups to 111 ensure a coordinated approach and encourage information sharing and a unified message. Congressional and state legislative 112 activity has focused on identifying legislative champions to lead various efforts to halt implementation of the policy. For example, 113 Congressional pressure on the Anthem plan in their state, Congressional pressure on the insurance commissioner within their state 114 to limit enforcement, Congressional outreach to DHHS or CCIIO to encourage their action, and a Hill briefing (panel of emergency 115 physicians, consumer representative, impacted patient). In the states, ACEP is working with chapters to identify champions in the 116 state legislatures and/or governors’ offices who might have influence with the insurance commissioner, develop op-eds in key 117 markets to influence state lawmakers, and work with chapters to encourage impacted constituents to write to their legislators. 118 119 To support all of this work, efforts are being made to track and collect payment denials by Anthem in states where the policy has 120 taken effect. Billing companies, ED groups, and Academic Chairs in those states were asked to report any data or observations of 121 denials that violate the prudent layperson standard. The ACEP DC office launched a website to collect patient stories of denials, and 122 is beginning to publicize it more broadly. Finally, ACEP will continue to explore legal options to prevent Anthem from enforcing 123 this policy, including possible injunctions. 124 125 Current AMA Policy on Prudent Layperson 126 127 The AMA House of Delegates adopted the following resolution at the June 2017 annual meeting: 128 129 RESOLVED, That our American Medical Association work with state insurance regulators, insurance companies and 130 other stakeholders to immediately take action to halt the implementation of policies that violate the “prudent layperson” 131 standard of determining when to seek emergency care. (Directive to Take Action) 132 133 The AMA sent a letter on June 29, 2017, asking Anthem to rescind the policy citing federal patient protections under PLP, forcing 134 patients to make clinical judgment calls without proper training, and reducing the value of having health insurance coverage. 135 136 ACEP Strategic Plan Reference 137 138 Goal 1 – Reform and Improve the Delivery System for Acute Care 139 Objective C – Pursue strategies for fair payment and practice sustainability to ensure patient access to care. 140 141 Fiscal Impact 142 143 Budgeted committee, staff, and consultant resources. Additional travel expenses of approximately $5,000 to meet in person with 144 Anthem. Additional unknown expenses if legal action is initiated 145 146 Resolution 40(17) Reimbursement for Emergency Services Page 4 147 Prior Council Action 148 149 Resolution 28(15) Standards for Fair Payment of Emergency Physicians referred to the Board. Directed ACEP to increase resources 150 related to establishing and defending fair payment standards for emergency physician services by monitoring state-by-state changes, 151 developing model legislation, providing resources to chapters, and encouraging research into the detrimental effects of legislation 152 that limits the rights of emergency physicians to fair payment. 153 154 Resolution 38(05) Proper Payment Under Assignment of Benefits adopted. Directed ACEP to advocate for legislation and 155 regulation to ensure that when authorized by the patient, A payer directly reimburses the provider for care. 156 157 Amended Resolution 34(02) Funding for EMTALA-Mandated Physician Services adopted. Directed ACEP to collaborate with 158 other organizations to to lobby the federal government to fund EMTALA-mandated services not covered by current funding 159 mechanisms 160 161 Amended Substitute Resolution 30(01) Inconsistent EMTALA Enforcement adopted. Directed that ACEP solicit member input to 162 formulate and submit recommendations to CMS EMTALA advisory process and other appropriate bodies, including 163 recommendations for clarifying medical staff on call responsibilities, obtaining greater consistency of EMTALA enforcement 164 among CMS regional offices, protection of peer review confidentiality, and utilizing consultative peer review for issues involving 165 medical decision making. 166 167 Amended Substitute Resolution 15(00) EMTALA adopted. This resolution called for the College to work with 168 Appropriate organizations and agencies to improve EMTALA for emergency departments; and that the 169 Board of Directors report back to the membership regarding progress on these endeavors at the 2001 170 Leadership/Legislative Issues Conference. 171 172 Amended Substitute Resolution 24(98) HMO Practices referred to the Board. The resolution called for the College to support a 173 requirement that when a patient calls their HMO with questions regarding medical care, that decisions are made by an appropriate 174 licensed professional according to sound triage protocols developed by qualified individuals. 175 176 Substitute Resolution 21(98) EMTALA: Mandatory Reporting of Suspected Violations adopted. The 177 resolution called for the College to investigate and report back on the establishment of an ACEP office of 178 EMTALA usage and compliance for the development of continuing programs for comprehensive regulatory 179 monitoring, member and public education and the coordination of legal and regulatory advocacy for an 180 environment which is conducive to appropriate emergency practice. 181 182 Resolution 43(97) Prudent Layperson Legislation adopted. Directed ACEP to study the problem of retroactive denial of payment 183 and the impact of passage of the prudent layperson definition in state that have the definition in law. 184 185 Substitute Resolution 18(96) EMTALA and Health Care Insurance Entities adopted. This resolution called on the College to 186 continue its current efforts with appropriate government agencies and other interested parties regarding the following EMTALA 187 issues: (1) the role that health care insurance entities have played in denying access to emergency care to their beneficiaries, and 188 ensure that those entities come under the jurisdiction of the statute; (2) the distorted interpretation and misuse of the original intent 189 of the statute; and (3) seeking relief from the onerous implications of the law in light of managed care; and report back to the 190 Council at the 1997 meeting. 191 192 Resolution 52(95) Managed Care Plans - Access to Urgent/Emergent Care referred to the Board of Directors, due to ongoing efforts 193 in support of United States House of Representatives bill H.R. 2011. This resolution called for the College to urge managed care 194 organizations to adopt a “prudent layperson” definition to ensure access to timely emergency care for all subscribers. 195 196 Substitute Resolution 39(90) Amendments to COBRA adopted. This resolution called for the College to expand its position 197 statement on the definition of bona fide emergency to include reference to the fact that medical evaluation is necessary to ascertain 198 if a bona fide emergency exists and is mandated by federal patient transfer laws. Resolution 40(17) Reimbursement for Emergency Services Page 5 199 Substitute Resolution 49(86) Patient Transfer adopted. This resolution called for the College to develop and make available support 200 materials for chapters to deal with the assessment, management, and transfer of patients and that the College continue to work 201 toward resolution of those elements of COBRA that deal unfairly with emergency physicians. 202 203 Substitute Resolution 26(84) Statutory Mechanism for Compensation adopted. Directed that as government entities mandate 204 statutory access to emergency services, such statutes ensure a mechanism for optimal physician payment. 205 206 Prior Board Action 207 208 April 2017, approved the revised policy statement “Fair Coverage When Services are Mandated;” reaffirmed April 2011 and 209 September 2005 with the title “Compensation When Services are Mandated;” originally approved September 1992. 210 211 April 2017, approved the revised policy statement “Prior Authorization;” revised and approved October 1998; originally approved 212 November 1987. 213 214 April 2016, approved the revised policy statement “Fair Payment for Emergency Department Services;” originally approved April 215 2009. 216 217 Referred Resolution 28(15) Standards for Fair Payment of Emergency Physicians assigned to the ACEP/EDPMA Joint Task Force 218 on Reimbursement. 219 220 April 2014, revised and approved the policy statement “Third-Party Payers and Emergency Medical Care;”revised and approved 221 June 2007, July 2000, and January 1999; approved March 1993 with title “Managed Health Care Plans and Emergency Care;” 222 originally approved September 1987. 223 224 Resolution 38(05) Proper Payment Under Assignment of Benefits adopted 225 226 Amended Resolution 34(02) Funding for EMTALA-Mandated Physician Services adopted. 227 228 Resolution 31(01) Possible Violation of the Constitutional Rights of Emergency Physicians not adopted. Called for ACEP to obtain 229 a legal opinion on whether EMTALA violates the constitutional rights of emergency physicians. 230 231 Substitute Resolution 30(01) Inconsistent EMTALA Enforcement adopted. 232 233 Amended Substitute Resolution 15(00) EMTALA adopted 234 235 Referred Amended Substitute Resolution 24(98) HMO Practices assigned to the Federal Government Affairs Committee and the 236 Emergency Medicine Practice Committee. 237 238 Substitute Resolution 21(98) EMTALA: Mandatory Reporting of Suspected Violations adopted. 239 240 Resolution 43(97) Prudent Layperson Legislation adopted. 241 242 Substitute Resolution 18(96) EMTALA and Health Care Insurance Entities adopted. 243 244 Substitute Resolution 39(90) Amendments to COBRA adopted. 245 246 Substitute Resolution 49(86) Patient Transfer adopted 247 248 Substitute Resolution 26(84) Statutory Mechanism for Compensation adopted. 249 Resolution 40(17) Reimbursement for Emergency Services Page 6 250 Background Information Prepared by: David A. McKenzie, CAE, Reimbursement Director 251 Adam Krushinskie, MPA, Reimbursement Manager 252 253 254 Reviewed by: James Cusick, MD, FACEP, Speaker 255 John McManus, MD, FACEP, Vice Speaker 256 Dean Wilkerson, JD, MBA, CAE, Council Secretary and Executive Director