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ACEP Files Federal Lawsuit to Improve Out-of-Network Payment

October 3rd, 2016

WASHINGTON, DC – Frustrated with low out-of-network reimbursements for emergency care, the American College of Emergency Physicians (ACEP) has gone to court to try to do something about it.

The federal lawsuit, American College of Emergency Physicians v. Burwell et al, maintains that an Affordable Care Act regulation related to emergency-care reimbursement fails to ensure reasonable payment to out-of-network providers. The case was filed recently in the U.S. District Court for the District of Columbia.

The regulation in question was issued jointly in November 2015 by the U.S. Department of Health and Human Services, the Department of Labor, and the Department of the Treasury. Under the 2015 rule, health insurers must give out-of-network emergency medicine providers the greatest of three payments: the plan’s in-network amount, the Medicare amount, or the usual, customary, and reasonable (UCR) amount.

The emergency physicians group wants insurance companies to provide more transparency about what data are being used to determine payment, as well as a clarification of the UCR amount.

"Patients can't choose where and when they will need emergency care and should not be punished financially for having emergencies," said Jay Kaplan, MD, ACEP president. "Health insurance companies need to be transparent about the data they are using to pay for services provided by out-of-network providers. They have a history of data manipulation and not paying for emergency care. They are shifting their responsibility to our patients, and that is just wrong. “

According to Kaplan, “The federal government has done an injustice to emergency patients and emergency physicians by giving carte blanche to insurance companies to pay whatever they want. Historically we know that amounts to as little as possible."

Kaplan said ACEP was shocked by the final rule that allows insurance companies to arbitrarily set their own rates and shift costs they should be paying to patients because the physician organization has worked for four years with the Centers for Medicare & Medicaid Services (CMS) to address the out-of-network issue.

The lawsuit points out that, according to the new rule, even “minimum standards of payment are not necessary” in states that have banned balance billing, maintaining the government is essentially allowing insurance companies to set whatever prices they want, despite the devastating effect on patients, healthcare providers, and the nation’s medical safety net.

"Health insurance companies have taken gross advantage of patients and emergency medical providers since the ACA, arbitrarily slashing payments by as much as 70%," Kaplan emphasized.

Because the Emergency Medical Treatment and Labor Act requires that any individual who enters an ED receive care, regardless of their ability to pay, emergency physicians tend to treat more patients out-of-network than other specialists.

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