Archive for category Health Care Reform

Missing Priority in ACEP’s Response to Health Reform

When I saw that ACEP had published on its website its proposed new priorities and tactics for addressing the provisions of the Patient Protection and Affordable Care Act of 2010, I read through this document with great interest. The health care reform act passed earlier this year contains a number of important edicts that will impact the practice of emergency medicine for years to come, and I was curious to see the strategies the ACEP Board of Directors had developed in response to this new set of laws, and the regulations that would eventually be hammered out to implement the Act.

I found that ACEP’s ‘High Priority Provisions’ document was cogent, well thought out, and pretty focused, considering the 2000 pages in the Act that had to be reviewed, screened for relevancy to emergency medicine, prioritized, and condensed into a set of strategies that would carry ACEP, its committees, and its lobbyists in D.C. forward for the next several years as health reform evolves. All of these strategies were referenced to the goals and objectives in ACEP’s larger strategic plan. As you would expect from a planning and strategy summary, there aren’t a lot of specifics in the priorities document; and these specifics will likely be spelled out in greater detail as each of the provisions of the Act are addressed in the coming regulations, and as each of the new concepts in health reform, like Accountable Care Organizations and bundled payments, evolve in the marketplace. As you may know, some of ACEP’s strategic goals and objectives, like coverage for emergency care in all health plans, prudent layperson, and the elimination of prior authorization, were in fact incorporated into the Act; and the strategy here will be to make sure that the regulations covering these patient protections are clear and enforceable, and eventually apply to all health plans, including those currently ‘grandfathered’. Other goals in ACEP’s strategic plan, like extending Federal Tort Claims Act liability protections to physicians providing EMTALA-related services, are not part of the Patient Protection Act per se, but they are clearly identified as a strategic priority for consideration in the regulations implementing liability reform in the Act. So, far, so good; the Board has produced a very credible piece of work.

Unfortunately, there is something important that is missing from ACEP’s high priority provisions document. This plan includes several strategies to address the provisions of the Act that address how emergency physicians will be paid for our services, and who will pay us, and how performance will be applied to these payments; but there is no strategy addressing HOW MUCH emergency physicians will be paid for the care we provide. You might be surprised to learn that the Patient Protection Act DOES include provisions that will be used to determine the value of an emergency physician’s services; but you probably would not be surprised to hear that you might not like these provisions very much. Specifically, the Act states that when a plan pays a non-contracted emergency physician, the amount paid must be the greater of a) what plans normally pay for non-contracted emergency physician services, or b) what plans normally pay for discounted, contracted emergency physician services, or c) the Medicare payment. Allow me to summarize: according to the Act, the commercial value of an emergency physician’s services will now (and possibly forever) be determined by the health plan.

You might say, so what? Why is this important to me as an emergency physician, especially if I am an employee of a hospital, or a salaried academician? The answer to these questions lies in the recognition that emergency medicine is not just a profession, it is also a livelihood, a thing that pays for the roof over your head, puts food on the table, and pays for your kid’s college tuition. Now I am pleased that for emergency physicians and for ACEP, our profession and the care of our patients comes before our reimbursement. That is part of our mission: to provide care for all regardless of their ability to pay. We cannot, however, recruit and retain qualified physicians into our EDs to fulfill that mission if we are not paid the fair value of our services, especially by commercial health plans. Here’s another truth that should be recognized: when something comes along that undermines the commercial value of an emergency physician’s services, like a balance billing prohibition in California, or a state regulation equating the value of an emergency physician’s service to a percentage of Medicare rates in Maryland; this doesn’t just affect what emergency physicians in those states get paid, it affects what all emergency physicians in every state get paid, whether they are fee-for-service contractors, or hospital employees, or salaried by a university. The provision in the Patient Protection Act that allows health plans to determine, unilaterally, the commercial value of a non-contracted emergency physician’s services will have DISASTROUS consequences for all emergency physicians in this country. These provisions in the Act completely undermine the concept that our usual, customary and reasonable charges, which are subject to many different market forces, should define the market value of our services.

I don’t know why this part of the health reform act was not specifically addressed in ACEP’s document outlining strategies for the High Priority Provisions of the Patient Protection and Affordable Care Act of 2010; but I think of this strategic plan as a living document, subject to ongoing modification, improvement, and expansion, as all good strategic plans must be. There are a lot of smart docs on ACEP’s Board who understand the importance of this issue. I am optimistic that the question of ‘how much’ our services will be valued, and the standards in the Act that will be used to determine this value, will soon become part of ACEP’s strategic considerations for health reform and the interim final rules that will soon become regulation. Our ability to fulfill our mission depends on it.


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Start a Commotion

Advocacy: The act of pleading or arguing in favor of something, such as a cause, idea, or policy; active support.

the lincoln memorial

I am very excited to be attending the ACEP Leadership and Advocacy Conference this week in Washington D.C.  It took a lot of maneuvering of my schedule to be able to take the time to get away on a non-vacation month, but I think in the end it will be well worth it.  I just know that the opening series of lectures this morning left me both frightened of the future of medical care and also inspired to not just sit back and let things happen around me.

One of the early speakers reminded us that we are advocates for our patients every day.  How many times during a shift do you call an admitting service, a consult, or a primary physician and outline a plan of care which you think is in the best interest of your patient?  Now, stop and think of how many times you do something equally powerful to stand up for your profession…

Of course, during residency when we’re on off-service rotations we fight for our specialty.  In academic medicine it’s always “our team is better than your team.”  When the cardiology attending bashes the E.D. for what he calls “sloppy care” of a CHF exacerbation or when the surgery resident makes a statement about E.D. docs only being interested in “moving the meat” and not doing a full work-up, we stand up for our profession.  We argue the current literature which we follow, and we tell them some patients don’t need a CT scan to prove they have appendicitis.  Ok, who am I kidding… of course we’ll get the CT scan.

Anyway, I was pleased to hear that this year’s conference is the most attended so far, and I am looking forward to tomorrow when the real meat of the conference will begin.  From what I’ve seen, it’s proving to be a very eye-opening and worthwhile experience so far…

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What ACEP Can Learn from the Federal Health Reform Process

This is just a very quick off the cuff, personal assessment, from many miles away from Capitol Hill, of what ACEP can learn from the health reform process we have just gone through.

ACEP talked to our Congressmen and women and our President’s staff about how EMTALA was an unfunded mandate that left hospitals and ED physicians holding the bag for all the uninsured patients and illegal aliens seeking care in the ED. Section 1011 funding was not renewed in the bill. Universal coverage was not achieved, and guess who will be taking care of those patients who still won’t be covered.

ACEP talked about how coverage did not mean access to care, and that we were losing money every time we treated Medicaid patients in the ED, and that our on-call backup specialty panels were degrading because Medicaid reimbursement sucked. Medicaid reimbursement rates will not increase under the new health reform bill, there will not be any incentive for PCPs to pick up all these new Medicaid patients, and guess who will be taking care of these patients?

ACEP cited the need for a fix to the Medicare SGR. Nope, not in the bill.

ACEP requested an increase in Medicare rates for emergency care, to beef up our on-call backup panels and make up for the unfunded EMTALA burden we will still be charged with bearing. Didn’t happen.

ACEP pleaded for malpractice reform so we could provide cost-effective care in the ED without fear of the inevitable malpractice hammer. Don’t blink, you will miss it.

That’s not to say ACEP did not prevail in some of our advocacy efforts: prudent layperson – in there; emergency care as a basic benefit package – in there; research funding – some; and there is more, which I will be happy to let ACEP’s leadership tout and justifiably proclaim.

I don’t think the question is: were we heard? I suspect that ACEP was not just heard, we were appreciated, respected, given consideration, even supported. We just weren’t powerful enough to make as big a difference as we ought to have made, considering what ACEP physicians bring to the table: considering our knowledge of the system, our fingers in the dike, our white hats, our key roles in care management; our substantial national PAC, our excellent advocacy staff in DC, our leadership’s enormous contribution of time and commitment, and our public image.

Why, you might reasonably ask. What can we learn from the recent experience. Personally, I think what we should learn is that we haven’t dug deeply enough into our own pockets to evidence our commitment to advocacy. The trial lawyers do it, so do the chiropractors and the prison guards. Doctors generally don’t, and we don’t. In light of the recent decision by the Supreme Court to allow corporations like Anthem and HealthNet free reign to contribute their amassed wealth to wrangling the political process; what we have been willing to contribute to advocacy will have even less impact. Fortunately, the level of contributions to advocacy we have been making is relatively meager, so as a specialty we have lots of room to make a difference without having to sacrifice a pound of flesh to have an impact. Furthermore, with a little reformulation of our approach to advocacy funding similar to that which CAL/ACEP has done in California; ACEP could find ways to not only greatly expand our presence and impact in D.C., but do so without having any adverse impact on college services to our members. Perhaps, just the opposite.

Maybe, if we had a serious horse to ride in on, more folks on Capitol Hill would notice the white hat.

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Call for Unity – March 21, 2010

Angela Gardner, MDToday’s health care reform vote on Capitol Hill, while high drama, really only signals the beginning of the work that needs to be done by emergency physicians to improve access to emergency care for our patients and future patients.  As I write this, I am watching the floor deliberations via the miracle of technology, and I know that the outcome will disappoint 48% of ACEP members, 48% of all physicians, and 48% of the American public, if polls are to be believed … and that will occur regardless of the outcome.

The greatness of our democracy lies in the ability of our people to freely elect their government representatives and to express themselves fully in the debate over crucial issues.  Never in my lifetime has this been more apparent than during the health care reform debate.  I believe that almost everyone has an opinion on health care, including many non-Americans, and almost everyone has expressed that opinion at some point.

The real challenge to our democracy, to our specialty, and to our organization is to move forward once today’s vote has been taken.  We must have great care not to fall victim to Jefferson’s “tyranny of the minority.”  We must move forward to create the greatest health care system in the world, befitting the greatest nation in the world, no matter the outcome of today’s vote.

There is no “win” today for emergency medicine.  There is only new illumination on the path to achieving better emergency care.  The real work comes as we identify areas that need our skills in innovation and problem-solving and get to work shoring up the nation’s emergency care system.  My fervent wish is that emergency physicians will find a common bond in the needs of our patients, and put the rancor and division of the path to health care reform behind us in the interest of better emergency care for everyone.

Thank you for your leadership and partnership in this endeavor,

Angela  F. Gardner, MD, FACEP
American College of Emergency Physicians

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ACEP’s Health Care Reform Positions: A Letter to the ACEP Council

Angela Gardner, MDIn a letter to the ACEP Council this week, ACEP President Dr. Angela Gardner outlined the current state of national health care reform and conveyed the essential components of reform outlined in ACEP policies. Her letter includes ACEP’s positions and a breakdown of the EM provisions in the pending bills.

“In recent years, there has been an increasing focus on the need for comprehensive reform of America’s health care system. With almost 50 million uninsured Americans and sharply rising costs in health care, the current system is unsustainable. There is, however, considerable disagreement and controversy over how to fix the severely challenged health care system.”

Read the letter online.

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Disaster is in the Details

On my way to work this morning I listened to the re-run of President Obama’s interview with Fox News, which had been vilified by him and his staff at every turn and now apparently rates his attention when he feels the need to  plead for support from those who don’t understand the new math.  I, too, was unclear on the details of the massive program that is not being voted on this week.  He clearly stated that the details of the health care plan, which he doesn’t know, will be posted many days before the actual vote which is funny because Nancy Pelosi said last week that if you want to know what is in the health care bill they will have to pass it first.  Huh? 

I also missed the math class in school that allowed you to save money and still spend it- I’d like to be able to do that in my own expenses.  

This whole Health Care Debacle  Debate- feels kind of like a marathon in which everyone disagrees on the route and the goal, and we aren’t making good time.  And the people who are in charge of it are fish.  I don’t mean that Congress People are slimy sea creatures, though I’m not ruling this out, I just mean that fish don’t ambulate, so have a difficult time telling bipeds how to provide health care.  

Are we really talking about adding a trillion dollars to the deficit that we can’t pay now?  Doesn’t the word “deficit” mean that we can’t pay it now?  That’s what it means in my house.  It is like the thought that we can’t be out of money because we still have checks left.  We just came through a financial crisis that was partially caused by thinking like that.

I’m confused and want to know- is tort reform in or out?  Is the public option in or out?  Is the opening of health insurance sales across state lines in or out?  Are we still voting on the bill?  Because it doesn’t sound like congress is even going to vote on the bill, but on the second derivative of the bill, and this violates the principles of SchoolHouse Rock in which the rules were clearly laid out by Jack Sheldon (  So you can understand my confusion.

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ACEP Leaders Invited to White House for Health Care Event

ACEP President Angela Gardner, MD, FACEP, had a front row seat Wednesday for President Obama’s release of his final version of a health care reform bill and shook the President’s hand after his speech.

The White House invited ACEP to bring several emergency physicians to attend the high-profile press conference. Joining Dr. Gardner at the event were ACEP President-Elect Sandra Schneider MD, FACEP; Federal Government Affairs Committee member Bruce Auerbach, MD, FACEP; and EMRA Board of Directors member and Legislative Advisor Nathaniel Schlicher, MD, JD.

President Obama released a revised bill, calling it a compromise plan that combines the best ideas of Democrats and Republicans, including insurance reforms, measures to curb waste, fraud and abuse in the system and increased funding for state grants on medical malpractice reform projects.

In his speech, the president urged Congress to “finish its work” and that “now is the time to make a decision” about health care reform.

Watch the ACEP members comment about attending the event.

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Calories Count

Boy do the calorie displays here in New York help — and I wish they were everywhere! The once-controversial law says that any chain with more than 15 branches has to post calorie counts for all their offerings. It’s something that I’ve definitely gotten used to — and now expect — and I encourage you to write your local lawmakers to do the same. (It’s clearly not a whole lot of work now for most chains, since if they exist in New York City they’ve had to come up with the data by now.) Sorry, In-And-Out!

It’s fascinating to see the numbers, and to realize how far off my guesses would be. That most donuts are lower in calories than muffins, or how much one of those Frappaccinos actually sets you back. (Sure, this does nothing to address diet from a fiber vs. saturated fat perspective, but it certainly does from an obesity one.) If we’re going to help our patients become healthier ones, it starts with information, and the calorie counts are a great example.

(Okay, and banning trans fats doesn’t hurt, either, and no one has seemed to mind.) (Okay, and also a smoking ban, which according to this research analysis suggests it prevented 4,000 hospitalizations, saved $56 million and lowered the number of MI admissions by 8%.) Such an awful nanny state outcome, I know.

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Doing Everything for Everyone Everyday Forever

So I get this little insert in my ACEP Newsletter, which looks like it’s under the editorial control of GlaxoSmithKline Vaccines (which is its own posts in and of itself), and the authors are arguing for replacement of the regular Td (tetanus-diphtheria) vaccine with the new Tdap (tetanus-diphtheria-and-pertussis, Boostrix! sounds more exciting) vaccine. They make the case that, wow, shock, awe: adults aren’t getting vaccinated for pertussis to prevent the 600,000 adult pertussis cases every year.

They then go on to talk about how the Emergency Department is “in a unique position” to immunize people and “overcome racial, ethnic, and socio-economic barriers.” (Skeptical me thinks it’s really all about GlaxoSmithKline wanting to enter the tetanus vaccine market and make a couple bucks a pop, but again, skeptical me.) So voila, yet another “Look what good you can do in the Emergency Department!” spiel.

And the argument is true: our referral bias is one of the anti-doctor crowd. One that prefers not to get regular checkups, or prefer homeopathy and The Vitamin Shoppe, or don’t see the need to see a physician when they feel just fine. We do see people that other doctors don’t. And part of what makes our jobs great is that our interventions do matter more than other physicians. I give aspirin to 42 people with STEMIs, I save one of their lives. Other doctors give a baby aspirin for primary prevention and need to treat 10 times as many people.

But I can’t help but feel like it’s yet another request for our already strained and closing Emergency Departments. We have to see more impatient patients, faster, with fewer resources available and more things asked of us. Domestic Violence Screening. Rapid HIV testing. Vaccinations. Smoking cessation counseling. And blood cultures within 6 hours, before antibiotics. (Kind of kidding on the last one. But only kind of.)

Please don’t misunderstand me: I’m a public health advocate. Public health and vaccinations and sewer systems and hand-washing have impacted and saved more lives than I will one thousand times over, but I gotta ask: Could we get a little help around here?

Yes, the less pertussis the better. Yes, as an emergency physician I’m proud to stamp out tetanus. Yes, there’s a large portion of HIV+ people out there who are infecting other people because they don’t even know they’re positive. Yes, I want to be able to offer victims of domestic violence information and options and safety. But who else is coming to the party? And are they bringing drinks?

I mean to say this: if public health wants emergency medicine to help its cause, then why not scratch our backs as well? Case in point: want us to offer rapid HIV testing? How about letting us offer rapid HIV testing and giving us bedside, point-of-care troponins? Something to recognize that we’re already stretched thin, and maybe we’ll break even if we get both.

(And to the public health folks out there, how about recruiting some other people in “unique positions?” How about pharmacies that sell cigarettes and alcohol? Get them in on the game to offer HIV tests and vaccines. And smoking cessation. Or why not have anesthesiologists screen for domestic violence? They’re often in a more private setting than we are. Or why not encourage those “lifestyle” specialties — looking at you, dermatology and radiation oncology — to start screening as well?)

I support these additional requests, because I think we really can have an impact that other specialties simply can’t — but if we as a medical community as a whole agree that these things are important to the health of our patients, it’d sure be nice to have the issues framed as “uniquely addressed in the Emergency Department” rather than “only addressed by the Emergency Department.”

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Accountable Care Organizations, Capitation, and Emergency Care Providers – Lessons Learned from California’s Delegated Payer Model

Talk to legislators about factors responsible for the high cost of health care in the U.S., and they will likely bring up the fee-for-service model of physician compensation. I am not sure if this is an issue of a few well-publicized ‘bad apples’, or if no one really believes any more that the vast majority of physicians are motivated first and foremost to provide appropriate care. In any case, the search for an alternative to fee-for-service physician (and hospital) compensation eventually led to the concept of capitation – a mechanism to put providers at risk for the cost of the services they provide, thus countering the incentive to provide questionably necessary services. The concept of capitation achieved its fullest expression in the Knox-Keene law that expanded the HMO concept to incorporate not only the capitation of ‘risk bearing organizations’ or RBOs (medical groups and IPAs),  but also the delegation of payment responsibility to these RBOs. This model effectively allows HMOs licensed under Knox-Keene in California to carve their ‘management overhead’ and profits right off the top of the premium dollar, and delegate not only some or all of the financial indemnity risk of care, but also the responsibility to pay providers who are not contracted or otherwise incorporated as participants in the RBO’s provider network. This model not only incentivizes these RBOs to deny needed services to the enrollees assigned to their network, it also incentivizes the RBOs to underpay non-contracted emergency care providers who are obligated by EMTALA to treat these enrollees whether or not the RBO pays these claims appropriately, or at all.

Accountable Care Organizations (ACOs) have been included in proposals for health care reform in both the House and Senate versions of health care bills now working their way through Congress, as a potential solution to rising health care costs. ACOs are predicated on the idea that ‘the current provider payment system pays for volume rather than value’; and that by addressing both delivery system and provider payment reform simultaneously, ACOs can achieve the value driven objective imbued in the managed care model (see Can Accountable Care Organizations Improve the Value of Health Care by Solving the Cost and Quality Quandaries?) Two basic versions of ACO physician compensation models are being considered in the House version: a shared savings program (SSP) which is fee-for-service based but incorporates an expenditure savings risk pool / quality standards threshold concept, and a population based payment (PBP) model using a ‘partial capitation’ approach involving risk and profit sharing rather than full-risk contracting, similar to the Medicare Prescription Drug Program’s risk corridors to limit potential ACO losses. The proponents of the partial capitation model often point to the ‘success’ of California’s Knox-Keene program as evidence that population based payment is a better alternative than a fee-for-service based model. On hearing of this argument, I felt compelled to point out that the Knox-Keene HMO concept, and particularly the delegated payer model, has been a nightmare for emergency care providers (ECPs) in California.

ECPs are obligated by EMTALA to provide care to HMO and subcontracted RBO enrollees no matter how inappropriately these providers are paid for the services provided to these HMO enrollees. With the prohibition of balance billing imposed by the California Supreme Court; Governor Schwarzenegger’s veto of SB 981, a bill designed to establish a fair payment rate and dispute process for non-contracted emergency physician services; and the Department of Managed Health Care’s reticence to enforce AB 1455 fair payment regulations: ECPs have nearly lost all leverage to obtain fair payment for non-contracted services, and to obtain reasonable rates in contract negotiations with both plans and RBOs. We have become the ‘indentured servants’ of the HMOs in California. The delegation of payment responsibility to the HMO’s capitated medical groups and IPAs was the rancid icing on this cake.  Here is how capitation and the delegated model have screwed ECPs in California:

1. HMOs are directly regulated by the DMHC, but unregulated medical groups and IPAs that subcontract to the for-profit HMOs often pay less than half what the plans pay, because they are insulated from the DMHC’s direct regulatory oversight.

2. Many on-call specialists have cited, as a reason for leaving on-call rosters, having to fight medical groups for fair payment of their claims. These medical groups are happy to have the on-call specialists take care of the group’s patients in the ER at 3 am, but these very same medical groups often decline to refer patients to the on-call specialist during regular office hours

3. The EMTALA mandate puts emergency care and hospital based providers at a real disadvantage in contract rate negotiations – if you can’t say no, you have no leverage. Further, some RBOs have the equivalent of a monopsony in their local markets, and use this leverage to get hospitals to coerce their hospital-based physicians into accepting below market contract rates with the RBO. Coercive contracting is supposed to be illegal in California (CA Health and Safety Code Section 1322, Stark II, Anti-trust, etc) but violations are difficult to prove, retaliation is a real threat, and the laws are hard to enforce.

4. Many capitated medical groups and IPAs routinely down-code 50% of ER physician claims, and some even down-code 100% of the claims for the care of our sickest patients. The DMHC has been reticent to respond to numerous complaints from providers, and the Department’s claims adjudication process is flawed and expensive.

5. Capitated medical groups and IPAs that are on the verge of bankruptcy from poor risk management put emergency care provider claims at the end of the list of claims to be paid because they know these providers must continue to see their patients even if payments are withheld. When the medical group or IPA finally goes bankrupt, the contracting HMOs refuse to take responsibility for these unpaid claims. Emergency care providers have lost millions as a result of delegation to financially insolvent subcontracting medical groups.

6. Several ER groups have been forced to go to court to obtain fair payment from capitated groups, and this has undermined otherwise positive and long-standing collegial relationships. Amazingly, some staff at the DMHC have actually encouraged this approach.

7. Many capitated medical groups do not have the resources to employ certified coders for claims review: and inappropriately down-code, bundle, and deny payment of legitimate emergency care claims; have great difficulty complying with AB 1455 prompt payment regulations; and rarely submit their payment practices to outside reviewers to verify compliance.

8. The RBOs have resisted giving up paying for ECP claims, citing that if the HMOs have to pay these claims, the capitated medical groups will have no incentive to keep their patients from using the ED, and the RBOs will also lose the capitation revenues they retain by keeping their patients out of the ED. However, ED usage risk pools can provide incentives for capitated physicians to provide access for after hours urgent care and to manage their chronically ill patients so they don’t need to use the ED for exacerbations. Risk pools incentivize medical groups to do the right thing – profit by managing their patients; payment delegation incentivizes the RBOs to do the wrong thing – profit by underpaying legitimate claims.

9. Capitated medical groups say that if the plans have to take back the responsibility for paying emergency care provider claims, they will take back too much of the capitation payments to cover those claims. If the success of these medical groups is predicated on being able to derive unearned profits off the backs of ECPs by taking advantage of their EMTALA obligation, sidestepping fair payment regulations, and systematically down-coding, underpaying, and denying their claims: this would be an unsustainable business model in a fair market.

10. Several HMOs (like Kaiser) and RBOs have been paying ECP claims in CA appropriately, but this puts them at a competitive disadvantage compared to the for-profit HMOs and RBOs, and they are under significant pressure to follow in the path of easy unearned revenues and profits established by less principled payers.

If capitated ACOs end up being promoted through national health care reform legislation; you, too, may well experience these same vexing issues in your ED.

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