Brandon Lewis, DO, MBA, FACOEP, FACEP
In the previous decade, the increasing inability for Emergency Medicine groups to come to an agreement on reasonable compensation with payers who continued to ratchet down on physician reimbursement led to an increasing number of patients who found themselves being taken care of by a physician who was not in network with their insurance plan. This was compounded by some physician groups who, as ‘bad actors’ took advantage of the lack of guidelines to purposely bill patients “out of network” to raise their revenue. As a result, an increasing number of patients found themselves getting caught by the “surprise coverage gap” as it was referred to by physicians or a “surprise bill” as named by the insurance industry.
As the problem continued to grow, all parties involved; physicians, payers, and patients, advocated for the government to step in and help take the patients out of the middle of these disputes. After much debate and wrestling in the halls of Congress, the “No Surprises Act” was passed in 2020. While it was not hailed as a “good” bill by hospitals and physicians, it was not a terrible bill. Much of the language that heavily empowered insurance companies to abuse the new rules were written out of the final bill. As passed, the bill’s general construction deemed that if a patient was seen by an “out of network” physician, the physician would submit a bill to the insurance company. The insurance company would then submit a “Qualifying Payment Amount” (QPA). This is supposed to be based on the “median in-network rate” for that insurance company. If the physician feels this is unreasonably low, they can appeal to an authority for Independent Dispute Resolution (IDR). An arbiter then receives a proposed payment amount from the insurance company and one from the physician and has to pick one of the two to resolve the issue.
Unfortunately, after a bill is passed, it goes to the executive branch for “rule writing” and in this case, the current administration wrote the rules to re-incorporate many bad provisions that Emergency Physicians protested and in direct contravention to the actual bill’s language!! For example, the rules require the arbiter to heavily weight the QPA as an “appropriate amount” for payment. There were also changes (relaxation) of the guidance around how an insurance company determines the QPA.
So what was the result? As you might expect, insurance companies have used the opportunity to drastically cut payments to physicians. For example, since a QPA has to represent the “median” of the in-network region, the insurance company will often unilaterally cancel contracts with physician groups with the better-paying contracts. This then results in the “median” for the region being lower (having removed the higher-end contracts). They can then continue this trend, wash and repeat continually lowering the regional median. Also, there are no rules around what defines a “region”. As a result, like political parties, the insurance companies create “gerrymandered” regions so they can include as many low-paying contracts and as few high-paying contracts in a QPA calculation! In some cases, this has led to insurance companies submitting QPAs that are less than Medicare!!
So as a physician, if you have a contract with an insurance company that pays you 200% of medicare reimbursement for your insured patients, you might have the insurance company come to you and say they want you to take a 25% cut in your reimbursement (down to 150% of medicare). If you say no, they will term you and you will be considered “out of network” and they will pay you only the QPA that they solely determine and could be less than Medicare! Either way, the physicians see lower reimbursement. When making your decision, it would be nice to know what that QPA that you would receive, right? The bill requires they disclose this to you, however, thus far, many insurance companies have failed to disclose this information! This is only the tip of the iceberg in terms of the tricks insurance companies have used to cheat physicians from fair reimbursement and patients from having good access to care in order to boost their profits to record levels.
Currently, several physician and hospital groups have filed lawsuits around the NSA. In a few cases, a federal judge has ruled against the administration, staying the implementation, and requiring the rules be rewritten. While this may portent improvement down the road, these delays only serve the insurance companies as they can continue their bad behavior to artificially lower their median payment amounts knowing that the IDR process is being log-jammed and they will not have to make appropriate payments until such time as there are revisions made. In the meantime, physician practices suffer with significant cuts in their reimbursement. As a result, the “front-line heroes” of COVID are now being faced with the choice to accept lower pay or leave the contract with their hospital meaning that patients are having decreased access to quality physicians.
ACOEP will continue monitoring the changes around the NSA and working collaboratively with other EM organizations to advocate and meaningful reform that treats Emergency Physicians fairly. Please continue to support our organization and to get involved with advocacy with your local legislators. –•–