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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