Decision Favors ACEP in Lawsuit Against Federal Government

This message was issued by ACEP President Dr. Rebecca Parker on August 31, 2017

The federal court system took a step in the right direction Thursday when it was announced that the Centers for Medicare & Medicaid Services (CMS) needs to further explain a regulation that impedes emergency physicians from receiving reasonable payment for out-of-network services.

ACEP filed suit against the federal government in May 2016 in response to the Government’s refusal to address concerns ACEP set forth regarding a CMS regulation for out-of-network emergency physician payment, which outlines the “greatest of three” options. As written, ACEP believes this rule, which originated from the ACA in 2010, opens the door for insurers to use black box methods to determine physician payment without providing any means to verify the data. In November 2016, ACEP then filed a Motion for Summary Judgment asking the Court to rule in its favor on this issue.

On Thursday, the U.S. District Court for the District of Columbia partially granted ACEP’s Motion and denied the Government’s counter motion. More importantly, it remanded the matter back to the federal agencies for further explanation of the ruling, saying that comments had previously been submitted during the regulation’s development expressing “concerns … for example, that the methods it used to set payments were not transparent and could be manipulated by insurers. Many of these commenters proposed using a transparent database to set payments instead. The Departments all but ignored these comments and proposals.”

Since 2010, ACEP has had numerous meetings with federal officials, sent formal comments, and drafted guidance to voice the concerns of our 37,000 members that the “greatest of three” rule cannot be enforced and has the potential to be manipulated by insurers without a transparent database of usual and customary charges

This decision does not invalidate the rule; however, it forces the Government to respond to ACEP’s concerns in a substantive manner.

ACEP will always continue the fight to protect the specialty of emergency medicine that Americans have come to depend on.

More details about the lawsuit –

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