State Strategies to Deal with Out of Network/Balance Billing

Alison Haddock, MD
Alison Haddock is currently the Chair of the ACEP State
Legislative Committee as well as a member of the Board o of
Trustees for NEMPAC. She works as an Assistant Professor and
the Director of Health Policy: Advocacy in the Baylor College of
Medicine, Division of Emergency Medicine. She is a passionate
educator on policy issues and is co-editor of the 4th edition of
the EMRA Advocacy Handbook. She has been honored for her
work with ACEP with the ACEP 9-1-1 Network Member of the
Year Award and the 2016 Council Horizon Award.
May 15-18, 2016
Washington, DC
State Strategies to Deal with Out of
Network/Balance Billing
5/16/2016
4:00 PM-5:00 PM
Edward R. Gaines, III, JD, CCP
Ed Gaines is the Chief Compliance Officer for Zotec Partners,
emergency medicine division, the largest privately held
physician coding, billing and practice management services
company in the US, managing over 70 Million patient
encounters in all 50 states.
He is responsible for compliance, coding and billing policy,
coding quality assurance and training for emergency medicine,
and serves on the Zotec compliance committee. He advises
Zotec clients on healthcare regulatory issues including the ACA,
Medicare & Medicaid programs and state law issues.
Ed brings over 22 years of healthcare experience with Zotec,
MMP and HBR. In 1994, HBR established the coding and
billing industry’s first voluntary corporate compliance program.
He is a co-founder, past chairman, and current Board of
Directors and executive committee member of the Emergency
Department Practice Management Association (EDPMA). Ed
received EDPMA Founder’s Award (their highest honor) in
2008.
Since 2008, he has been a member of the American College of
Emergency Physicians (ACEP) Reimbursement Committee and
has served as faculty for the ACEP Reimbursement and Coding
conference for the past 9 years—and he currently chairs the Joint
ACEP/EDPMA Task Force on Reimbursement Issues.
In 2015, then ACEP President Michael Gerardi named him Chair
of the ACEP/EDPMA Joint Task Force on Reimbursement
issues, which consider issues and is developing strategy related
to out of network billing and Medicaid.
Ed is a member of the North Carolina State Bar, the North
Carolina Bar Association’s Health Law Section, the American
Health Lawyers Association and the Bar of the United States
Supreme Court.
Awards include being named a Fellow in the Health Ethics Trust
(2000), the NC Chapter of the ACEP Outstanding Advocate for
Emergency Medicine Award (2006), the ACEP Speaker of the
Year Award (2008) and ACEP Honorary Membership Award
(2012).
Steven B. Kailes, MD, FACEP
Dr. Kailes is a practicing emergency physician with Emergency
Resources Group, serving the Baptist Health System in
Jacksonville, FL. He is the current President and past-chair of
the Governmental Affairs Committee of the Florida Chapter of
ACEP. He studied at Tufts University School of Medicine and
his post-graduate training was at the Naval Medical Center, San
Diego, CA. He served nine years with the US Navy and
deployed with the US Marine Corps to Asia and later a tour in
Al-Anbar Province, Iraq, in 2006-07 in support of Operating
Enduring Freedom. Since leaving the Navy, he has been a strong
advocate for Emergency Medicine on both the state and national
level.
5/10/2016
State Strategies to Deal with
Out of Network/Balance
Billing
Presented by:
Ed Gaines, JD, CCP
Alison Haddock, MD
Steven Kailes, MD, MPH, FACEP, FAAEM
 EM had successfully advocated that “emergency
services” were part of the “essential healthcare
benefits” (EHBs) under the ACA, enacted 3/23/2010
 Interim Final Rules (IFR) were issued by CCIIO June
2010.
 The IFRs did not ban out of network (OON) balance
billing (BB) for ED services.
 Patient protections would be defeated if the plan paid
“an unreasonably low amount to a provider”, even if the
plan limited the cost sharing burden on the patient. IFR
@37194 (emphasis added)
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5/10/2016
“The Greatest of Three” (GOT) IFR & Final Rule:
“Specifically, a plan or issuer satisfies the copayment or coinsurance
limitations in the statute if it provides benefits for out-of-network
emergency services (prior to imposing in-network cost sharing) in an
amount at least equal the greatest of:
(1) the median amount negotiated with in-network providers for the
emergency service;
(2) the amount for the emergency service calculated using the same
method the plan generally uses to determine payments for out-ofnetwork services (such as the usual, customary, and reasonable
amount***;
(***Note: the IFR preamble was changed from “UCR charges” in June
2010 to “UCR amounts” in the final rule issued on Nov. 18, 2015)
or (3) the amount that would be paid under Medicare for the emergency
service (minimum payment standards).
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What’s at stake here?
 New ACEP Fair Coverage Poll Results:
 8 in 10 EDPs surveyed said Pts. have delayed or
forgone care b/c of concerns over HDHPs or Pt cost
sharing concerns.
 https://www.acep.org/Advocacy/Insist-On-FairCoverage/
 Quantifying the Financial Impact of the GOT:
 Large democratic ED group w/ over 100 physicians
and over 60 partners.
 Less than 6% of the groups’ revenue is OON.
 Total loss of $8.3M from 2010 to 2015 (using the ave.
collections % from 2006-09 applied to actual
collections from 2010-15)
 Over $120K loss per partner since the GOT rules
were issued in 2010.
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5/10/2016
Updates on the ACEP/EDPMA Joint Task Force
(JTF) on Reimbursement Issues: Out of network
(OON) balance billing and Medicaid.
 Formed mid-2015 at the request of then ACEP
President Dr. Mike Gerardi, w/ agreement of
Dr. Tim Seay, Chair of EDPMA, and continued
by Dr. Kaplan.
 Purposes.
 Organization & professional staff.
 We’ll come back to the JTF in few minutes
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CCIIO: an important change & an
unexpected potential “threat”: 11/18/2015)
 After nearly 5 years & >10 meetings, 5 CCIIOO Directors
and 1 outside contractor report (Impaq), we collectively
rec’d….
 Surprise bill? No how about a surprise final rule issued
Nov. 2015
 Nationwide ban on OON balance billing is contemplated
by federal rule.
 “In the future, the Departments will consider ways to
prevent providers from billing a participant, beneficiary,
or enrollee for emergency services from out-of-network
providers at in-network hospitals and facilities .” Fed
Reg. Vol. 80, No. 222 (Nov. 18, 2015) @72213
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5/10/2016
“Mad as Hell and not going
to take it anymore….”
 “To say that many emergency physicians
represented by ACEP and EDPMA are
angered by this language, and feel betrayed
by the staff of [CCIIO], would be a gross
understatement.” (emphasis added)

http://khn.org/news/er-doctors-say-federal-rules-couldraise-patients-out-of-network-bills/
 “[T]hese proposed Final Regulations
pander to the profit motives of the health
plans, and they are biased and ill advised.”
(emphasis added)

http://www.edpma.org/downloads/Patient_Protection_OON.pdf
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Can I get a flag for “piling on”? POTUS’
2017 Budget Feb. 2016
 “[A]ll physicians
who regularly
provide services in
hospitals would be
required to accept
an appropriate innetwork rate as
payment-in-full.”
(emphasis added)
 “Thus, if the hospital failed
to match a Pt to an innetwork provider, the Pt
would still be protected
from surprise out-ofnetwork charges. [No
budget impact]”
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5/10/2016
But now the CMS rhetoric has changed
since late 2015—Final Rule on ACA plans
cost sharing March 2, 2016:
 “We did not propose to prohibit balance billing by
out-of-network providers or limit the financial
responsibility associated with OON services to
consumers.”
 Our intent in establishing this policy beginning for the
2018 benefit year is to permit us to monitor ongoing
efforts by issuers and providers to address the
complex issue of surprise OON cost sharing at innetwork facilities across all CMS programs in a
holistic manner ….” (emphasis added) (p. 358)
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More evidence in the change in messaging
from the Feds: CCIIO FAQ issued 4/20/16
Good news:
 Q: whether the 2d criteria
in GOT std. requires U&C
disclosure?
 Yes, ERISA & nongrandfathered grp. plans.
 Documentation, data &
methods
 May be subject to beneficiary
authorization—change in Pt
consent to treatment
language?
Bad news:
restated the
“usual, customary
& reasonable
amounts” change
in verbiage from
Nov.’15 final rule:
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5/10/2016
Change in the Feds dialogue: CCIIO FAQ
issued 4/20/16
 Non-grandfathered
group/individual plans,
FAQ 4: Claimant or
authorized
representative may
appeal “adverse benefit
determination” & may
obtain
documents/records &
other info. used to make
that determination.
 FAQ 4: for nongrandfathered
group/individual plans: “A
failure to provide or make
payment in whole or in part
is an adverse benefit
determination.” (emphasis
added)
 https://www.cms.gov/CCIIO/Resources/F
act-Sheets-and-FAQs/Downloads/FAQs31_Final-4-20-16.pdf
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More evidence: ACEP and EDPMA invited w/ “House
of Medicine” to a US DHHS Roundtable 4/27/16
 The 6-8 months of advance work of the JTF paid off.
 Theme: EM wants to be part of the solution w/ the
House of Medicine and regulators:
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5/10/2016
The Joint Task Force (JTF) Strategies
White Paper:
 Approved by the EDPMA and ACEP BODs in April
2016 w/ ACEP State Leg. Report.
 Product of the ACEP Reimbursement Comm. & JTF
 Overall deference to state level “boots on the
ground”.
1. Critical Definitions are provided.
2. Legislative Provisions are recommended—why a
minimum benefit standard (MBS) is critical.
3. Connecticut law is a good MBS model w/
important exceptions.
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Final critical lesson: the Connecticut
(CT) Model
 The GOT formula w/ a huge favorable twist.
 UCR for EM is defined as the 80th percentile of
charges as “reported in a benchmarking database
maintained by a non-profit organization”—
“Minimum Benefit Std or MBS”
 Database cannot be affiliated w/ health plans—so
no HCCI.
 “Surprise bills” is a bill for non-emergency services.
 Issue now w/ House of Medicine—whether to
attempt to amend the CT law for other hospital
based specialties.
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5/10/2016
The JTF Strategies White Paper:
The issues with “alternative dispute resolution”
(ADR) or “independent dispute resolution” (IDR)
as NY has it.
 Modern Healthcare Article 4/8/16.
 291 disputes over EM in approx. 1 year (4/1/15
effective date)
 Health plan rates deemed reasonable in 22%.
 EDPs won approx. 13% per the Healthcare Assoc. of
NY State (HANYS) data

http://www.modernhealthcare.com/article/20160407/NEWS/304079996?utm_source=
modernhealthcare&utm_medium=email&utm_content=20160407-NEWS304079996&utm_campaign=financedail
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ACEP, ASA and The House of Medicine:
ACEP reached out to ASA and the other
specialties to discuss common principles.
Discussions began/accelerated perhaps
in part b/c of the FL results.
Areas of common ground and
understanding differences.
As the US State Department would say
after serious head to head diplomatic
exchanges ……..
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5/10/2016
Thank you!
Contact information & questions either today or
offline later
Ed Gaines, JD, CCP
Chief Compliance Officer
Emergency Medicine Div.
Zotec Partners, LLC
Greensboro, NC
egaines@zotepartners.com
919-641-4927
Follow me on Twitter:
@EdGainesIII
http://twitter.com/EdGainesIII
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2016: A Busy Year for OON/BB Laws
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5/10/2016
Many Studies & Work Groups
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Washington
Tennessee
Hawaii
Georgia
Colorado
Rhode Island
Ohio
New Hampshire
New Mexico (hearings)
Own the Message
• Fair Coverage Talking Points
• “Health Insurance Companies”
• Cost‐shifting harms patients
– Narrow networks
– High deductibles
– Result is “Surprise Coverage”
– #InsuranceFail
• Protect the safety net & access to care
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5/10/2016
Form an Alliance
Know The Key Players
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State Hospital Association
Large Physician Groups
Lead legislator(s)
Governor’s office
Media
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5/10/2016
Gather Your Data
What Are Your Options?
• Fight the Ban
• Agree to Ban with reasonable MBS
– 80 percentile Fair Health
– “Greatest of Three” out of ACA
• Define $ threshold:
– If lower, OON claim is paid in full
– If higher, reasonable dispute resolution process
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5/10/2016
Devil is in the Details
• “Unfair Trade Practice” (CT)
• ADR per CPT code, not per ED visit
• Bundling of claims for ADR
• Experts needed!
State Public Policy Grants
• Up to $12,500
• Emergency or Non‐Emergency
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5/10/2016
GEORGIA
• Outreach
• Educational Meetings
COLORADO
• Phone2Action
• Available to all states
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5/10/2016
FLORIDA
• Emergency: <48hrs
• Successful PR campaign
Is that a hanging chad?
What is going on in Florida?
Steven Kailes, MD, MPH, FACEP, FAAEM
President, Florida College of Emergency Physicians
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5/10/2016
First, some history
Balance Billing Ban for HMOs
Passed around 1995
HMO reimbursement for OON provider shall be the lesser of:
• The provider's charges;
• The usual and customary provider charges for similar services in the community
• The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim
• The Medicaid Rate; only if the subscriber is a Medicaid recipient
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5/10/2016
What is Usual and Customary?
• The gray area of U&C is the problem
• Providers want U&C based on charges
• Insurers want U&C based on payments
Alternative Dispute Resolution (ADR)
• Maximus contracted by AHCA in FL for voluntary dispute resolution determinations
– Around 2003, selected 225% Medicare rate for U&C – Unable to be challenged due to “voluntary process”
– Thus, providers stopped going through Maximus
• “Maximus is broken” as ADR process
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5/10/2016
2012: Hello, Rep. Corocoran
• TRANSPARENCY!
• HB1329
– Essentially requires physicians to publish a schedule of charges for the 50 most frequently offered medical services
– Dies in committee
2013: Proposed HB1153
• At an in‐network facility, OON providers
– Reimbursement shall be the same as the percentage rate that is paid to preferred providers, and must be applied to the lesser of the following amounts:
• The physician’s charges;
• The usual and customary amount accepted by physicians for similar services in the community where the services were provided; or
• The amount mutually agreed to by the physician and the insurer.
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5/10/2016
2013: Proposed HB1153
• 2013: Proposed HB1153 died in committee
• 2014: No real movement on Fair Payment issue
• 2015: They’re back!
Outrageous Bills
• Sponsors of the bills, and their supporters, report massive EM bills ‐ $10k, $20k, $30K!!
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5/10/2016
Misleading committee testimony
• Later, a legislative aid privately acknowledged these examples referred to EMS air transport bills
• So EMS and air transport providers are taken out of the legislation…nice one
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5/10/2016
Florida 2015
HB 681 & SB 516 ‐ NOT Fair Payment
• Reimburse OON Provider:
– The negotiated amount (excluding copayment), or
– amount calculated under the methodology generally used by the insurer to determine the reimbursement amount, or
– The Medicare rate
• Did not pass out of the Senate
2016: Let’s Get Ready to Rumble
• We knew they were coming back
• We know next year Rep. Corcoran will be Speaker of the House
• We need to be more organized
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5/10/2016
What do you need?
• Reliable data
• Goals
• Strategy
Data
• How big is the problem?
• What do we charge?
• What do the insurers pay?
• What are patients billed?
• What do patients pay?
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5/10/2016
Verifiable Data
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5/10/2016
Physician charges influenced by:
• Costs of recruiting and retaining qualified providers
• Providing uncompensated & undercompensated care
• Standby costs for surge capacity, 24/7/365
• Medical malpractice insurance costs
• Billing and other usual business costs
PPO: Flawed Consumer Products
• Consumers pay more for more choice
• Insurers shift more costs to their subscriber
– Arbitrary “Maximum Allowable Charge”
• Selling “in‐network” hospitals
– May not be negotiating with the physicians
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5/10/2016
We aren’t the bad guys
What they expect vs. what they get
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5/10/2016
What is your ask?
• Legislators: get the patient out of the middle
• Patients: Pay less. And no more Surprise Bills
• Insurers: Decrease payments
• Physicians: Fair and timely reimbursement
FCEP advocated for:
• Fair Reimbursement – based on charges for OON care
– This should incentivize insurers to negotiate – FL EM docs are in‐network 88% of the time already
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5/10/2016
“This computer links me to other doctors, so I can see what they charge.”
FCEP advocated for:
• Transparency
– Define U&C using 80th percentile from the FAIR Health database
– Avoid concerns of physician manipulation by using 2015 as a “date certain” and include future adjustments based on healthcare CPI
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5/10/2016
FCEP advocated for:
• Fair dispute resolution process
– Criteria for settling disputes well‐defined
– Use arbitrators knowledgeable with health care economics
– Decisions can be challenged
FCEP advocated for:
• Insurers pay physicians directly
• Make insurers collect co‐pays and deductibles
• We weren’t successful, but this makes more business sense for us
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5/10/2016
Challenges
• Messaging
• Get the word out
• Be available on short notice
Messaging
• Everyone in your organization needs to be on the same page
• Multiple targets
– EM community, ideally with your state medical association’s support
– Legislators and staff
– Patients and the general public
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5/10/2016
Get the word out
• Public Relations campaign
– Articles for the EM community
– Contact newspapers with Op‐Eds
– Contact radio and other media outlets for interviews
– Meet with every legislator and/or staff
Be available on short notice
• Government workshops – Consumer Advocate hearings
• Legislative Committee hearings
• Spend time “on the hill” advocating
• Spend time back home advocating
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skailes@gmail.com
Feel free to contact me 32