CO Chapter American College of Emergency Physicians
8/11/04
Re: HB1177 Talking Points
Is there a balanced billing problem in our Emergency Departments? The overwhelming majority of Emergency Departments in CO are staffed by emergency medicine group practices that have exclusive contracts with their hospitals. Hospitals seek to maintain good business relationships with payers and avoid billing hassles for beneficiaries. As such, it is a virtual industry standard in this state for ED contracts to contain language requesting that the emergency physician (EP) group participate in the majority of plans that the hospital contracts with. Based on informal surveys, we do not believe Colorado has a problem as far as patients coming to a participating hospital ED and being treated by a non-contracted EP.
What is different about the ED? The EMTALA law was originally intended to provide a safety net in order to prevent medically indigent patients from being denied emergency care. Under EMTALA, hospitals and EP’s are required to evaluate and treat all patients regardless of insurance status. We are prohibited from discussing insurance status, copays or even having any financial discussions with our patients prior to providing these services. EP’s have been financially impacted more than other physicians by this legislation and in fact provide more charity care and have greater bad debt than any other medical specialty. The combination of EMTALA and a balanced billing prohibition would be especially onerous to EP's. An unintended consequence of EMTALA would be to allow payers to essentially regard all EP’s as their de facto panel and, with the help of balanced billing prohibition, to pay for services at whatever rate they choose. Since most ED groups are fee for service, this would have a disastrous impact on our practices. We would no longer be able to recruit and retain Board Certified EP’s in CO. Another unintended consequence would be a worsening of ED overcrowding. Absent contractually defined fair market reimbursement for services, plans and providers would view the ED as a first line low cost option for many patients that could be treated more appropriately in another facility.
Who else gets hurt? The ED safety net also depends upon "on-call physicians." Many surgical specialties (e.g. neurosurgery, hand, and ophthalmology) are in short supply and/or unwilling to take ED call for a number of reasons. Uncompensated care out of the ED is often cited as a primary issue. Without recourse to balance bill, an on-call physician would be forced to accept whatever a payer elected to reimburse. Our current on-call safety net is fraying. Balance billing prohibition would certainly put it over the edge and jeopardize CO citizens’ access to trauma, cardiac and other critical care services.
To conclude, a balance billing prohibition in an EMTALA regulated environment constitutes a total abrogation of any notion of negotiation, free markets and fair business practices. EP’s would have no leverage in a negotiation and payers would see no reason to negotiate. To propose that such an egregiously unfair business advantage be conferred on insurance companies at the expense of physicians and the well being of our patients is indeed difficult to comprehend. The issue requires further study to determine the pervasiveness of the problem in Colorado. CRS 10-16-704 currently protects consumers but is a good example of unintended consequences of legislative solutions.
