October 11, 2018

State of the States

Many of us think about legislative advocacy in terms of the federal government, and, of course, there is good reason for placing focus there, as it goes without saying that the impact of Washington on medical practice is considerable. Nonetheless, new laws tend to pass at a much faster pace at the state level, and arguably at no time in history has state activity had a larger significant impact on how health care is delivered to patients in the United States than it does now.

For those focused on state level advocacy, the first half of the year is always the most hectic time. In 2018, all but four states (Montana, Nevada, North Dakota, and Texas) have regular scheduled legislative sessions. While a handful of states meet year-round, the vast majority compress their legislative sessions into the first half of the year, with many completing their work around the time that the trees begin to bud. The compressed schedule of many state legislatures challenges all who wish to monitor developments and impact legislation rationally and for the good of patients.

To review all of the issues of concern – or opportunity – before legislatures would require more space than is available in this brief article, but following is a quick review of the most important issues that emergency physicians should be aware of.

Balance Billing/Out of Network Reimbursement

This has been a key issue in front of legislatures for several years now, as health plans have narrowed networks and sought legislative help with reducing payment to out of network providers without garnering the notice of their enrollees. The most common approach to this has been for health plans to pursue a ban on balance billing in combination with benchmarking out of network reimbursement to in network rates or some multiple of Medicare. This year, having been rebuffed on proposals for Medicare based methodologies, insurers in some states are pursuing the use of a database representing allowed amounts.

Those representing emergency physicians, as well as other physicians, have pointed out that such schemes would provide health plans with little or no incentive to contract at reasonable rates. Why negotiate a contract if one can pay contracted rates without them?

ACEP has worked with various similarly-situated medical specialty associations to oppose these proposals, while offering alternatives that would protect patients from unexpected balance bills while ensuring adequate payment. This has involved advocacy of the use of the 80th percentile of an independent, transparent charge database that is not under the control of health plans as a benchmark for determining reimbursement. ACEP sponsored a resolution adopted by the AMA House of Delegates last year supporting this solution.

It is important to note that a bad outcome on this issue would not only affect out of network reimbursement but would also impact contractual negotiations between providers and health plans. In fact, one could argue that the desire to push down contracted rates explains the fierceness with which the health plans have engaged in the debate. The physician coalition has organized itself to effectively oppose the health plans and push back on behalf of patients and access to emergency care.

Commercial Insurance and Prudent Layperson

As of the time of this writing, Anthem Blue Cross/Blue Shield has rolled out policies in six states (Georgia, Missouri, Kentucky, Indiana, Ohio, and New Hampshire) that threaten nonpayment if the visit is deemed non-emergent. This violates the prudent layperson standard as stated in federal law, as well as in the statutes of many states.

As an aggressive public relations campaign pushes back on these threats to patient safety and possible legal strategies continue to be explored, legislative solutions have also been proposed. In Missouri, legislation would require specific criteria, including review by a board-certified Missouri licensed emergency physician, before such a payment denial could be issued. Legislation put forth in Ohio would deny government contracts to health plans engaged in such practices.

ACEP is interested in stories involving non-payment and denials of coverage. If there are stories from your departments and patients that can be shared (keeping in mind HIPAA privacy protections), please consider forwarding such information to the state legislative office.

Medicaid Developments

With a friendlier administration in Washington, many “red states” are putting forth Medicaid waiver proposals that merit careful attention. Kentucky recently became the first state to gain approval of a waiver proposal that ties access to Medicaid benefits to pursuit of employment by able bodied persons, and other states are now pursuing similar ideas. Of particular significance to emergency medicine are waiver proposals that create increased co-payments for emergency department use retrospectively determined to be non-emergent. Variations on this theme include punitive payment structures for frequent use or negative impacts on health savings accounts tied to Medicaid services. ACEP’s State Legislative/Regulatory Committee is developing resources around these types of issues.


States continue to respond to the opioid epidemic with various legislative approaches, most commonly with limitations on the quantity of pills. Some of those limitations have particular applicability to situations where there is not an existing doctor/patient relationship, and that obviously impacts emergency practice. In addition, states continue to expand mandates related to prescriber access to prescription drug monitoring programs (PDMPs).

While legislative interference with medical practice always generates concerns, there seems to be a bit of transition regarding how to respond to these developments. Thus, emergency departments have pointed out that PDMP mandates must be accompanied by improved database access through enhanced health information technology that pushes patient PDMP information to the physician. Thus, states have been encouraged to facilitate the availability of such technology financed through various types of public and private partnerships. Washington provided an initial example of how this could work to improve outcomes while saving money, and the concept is spreading across the country.


As stated at the outset, covering all the issues of concern to emergency medicine would require a much larger space, but a few issues of great impact have been summarized. For additional information, feel free to contact ACEP’s State Legislative Office.

Harry J. Monroe, Jr.
Director, ACEP Chapter and State Relations

Chadd Kraus, DO, DrPH, FACEP
Chair, ACEP State Legislative and Regulatory Committee

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