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July 11, 2019

The Calm Before the Storm

As discussed in my last post, we are in the midst of Reg Season. However, the Centers for Medicare & Medicaid Services (CMS) has yet to issue any regs. Don’t be fooled, a storm is coming!

We expect to see the annual Medicare physician fee schedule (affecting physician payments) and outpatient prospective payment system (affecting outpatient hospital services) proposed regs any day, and we will likely see more regs that could impact emergency medicine in the next few months,  thanks to an Executive Order on price transparency issued by President Trump on June 24.

Now, I know what you may be thinking… what is an Executive Order and how could it lead to even more regs?

An Executive Order is a directive issued by the president of the United States to the executive branch of the government that has the force of law. Thus, an Executive Order is a set of instructions to federal agencies to implement certain policies. And how do federal agencies implement policies? With regs!

The purpose of the June 24th Executive Order is to promote transparency in health care — an issue that, as many of you probably know, has captured the attention of both the Administration and Congress in recent months. The Executive Order calls on federal agencies to release several regs, including some that would:

  • Require hospitals to disclose their negotiated rates (this will likely be part of the outpatient prospective payment system reg).
  • Solicit comments on a potential policy to require healthcare providers and insurers to provide or facilitate access to information about expected out-of-pocket costs for services to patients before they receive care (this reg will lead to subsequent regs that propose and finalize this policy).

The Executive Order does not mention EMTALA or emergency services, so it is unclear exactly how these regs will apply to emergency care. In the past, ACEP has told federal agencies including CMS about the intricacies of EMTALA and how this federal law impacts price transparency in the context of emergency medicine.

EMTALA stipulates that you may not discuss costs with a patient prior to stabilizing them. Doing so could lead patients to leave prior to receiving the care they need. Per EMTALA, patients must receive a medical screening examination and stabilizing treatment without regard to financial means or insurance status. This patient protection remains one of the foundational principles of EMTALA, a cornerstone of emergency medicine since it was enacted three decades ago.

We will work to ensure that any new regs on price transparency take EMTALA into account. And if they don’t, we will certainly call on you to raise your concerns with CMS and other relevant federal agencies.

Stay tuned for updates and brace yourselves for the reg storm.

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!

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