Articles

Written by Valerie Norton, IEPC Member and President-Elect, California ACEP
and Elena Lopez-Gusman, Executive Director – California ACEP

California ACEP had a busy year with critical issues of pandemic, workforce, payment threats, and mental health boarding. Here is a summary of some of the legislative activity that was Valerie Norton IEPC Member and President-Elect, California ACEP Elena Lopez-Gusman Executive Director – California ACEP discussed during an IEPC Speaker Series.

Improve the safety and quality of care for patients across California

• AB 451 Arambula: Requires freestanding psychiatric hospitals to accept patients in transfer under the same rules as other EMTALAbound facilities, without regard to ability to pay. Signed by the Governor.

• AB 685 Maienschein: Would require Emergency Physician review before a health plan or insurer could down code a claim. This is a two-year bill and will be heard in January.

Improve EM practice

• AB 1113 Medina: Gives free college tuition at state schools for children of healthcare workers who died of COVID. We worked with the authors to have independent physicians included, not just hospital employees. Signed by Governor.

• SB 104 McGuire: Would provide a pass-through credit on state and local taxes (SALT) to S corporation physician groups. This bill is held on suspense but was enacted by AB 150 which was a budget trailer bill. While we were hoping to expand the applicability of the passthrough to more EP entities, we were pleased to see this signed into law.

• SB 250 Pan: CMA sponsored bill that would require insurers to collect co-pays and deductibles directly from patients instead of making physicians do that. Will be heard again in January.

• $40 million budget allocation for grants to EDs to provide behavioral health navigation services. This is modeled after the $40 million we successfully got last year for substance use navigators. This was passed and signed and there will be a grant process in 2022 to distribute the additional funds.

Oppose or try to amend legislation that would be detrimental to ED practice

• SB 447 Laird: would allow pain and suffering awards for heirs of decedents who get a malpractice award. Essentially doubles possible MICRA pain and suffering award from $250,000 to $500,000. Signed by the Governor.

• AB 835 Nazarian: Would require all EDs to test for HIV on all patients undergoing a blood draw unless they opted out. After energetic lobbying efforts to oppose different versions of this bill over several years, the current version was kept in the “suspense file” this year due to the cost to the state (Medi-Cal, UC system). It would have been an unfunded mandate for all hospitals.

• SB Roth 806: This bill is an omnibus bill that reauthorizes the CA Medical Board. Among its provisions, it would have continued the post-graduate training license that was established 5 years ago by the medical board reauthorization bill and prevented moonlighting. We worked hard to fix this and were successful. Signed by Governor.

• AB 1204 Wicks: Would have required physicians to report redundant demographic data on their patients already being reported by hospital. We were able to work with the author to have physicians removed.

• AB 1105 Rodriguez: Would have required physician employers to provide COVID testing to their employees, duplicative of hospital testing. We were able to work with the author to remove the requirement for emergency physicians.

• AB 789 Low: Would have required Hepatitis B & C screening in the emergency department when primary care services were being provided. We were able to work with the author to exclude the ED.

• SB 306 Pan: Would have required syphilis screening on patients who delivered in the ED. Worked with author to make this a recommendation rather than a requirement.

• SB 744 Glazier: Would have added housing, address and other demographic patient information to the mandatory reporting already required of physicians for communicable respiratory illnesses. Worked with author so that this is only required to be reported if the information is known.

Work in the regulatory process to implement recent laws in sensible ways that will protect EM and ED patients

• AB 1544 Community Paramedicine: AB 1544 was signed into law in 2020 allowing paramedics to expand their scope of practice in certain settings and to allow paramedics to transport patients to certain alternate destinations (sobering centers and mental health facilities). We serve on the advisory committee drafting regulations to provide guidance to LEMSAs to implement this law.

• AB 890 Wood NP scope of practice: we are engaging with the BRN advisory committee and in process of creating a position statement from California ACEP regarding our opinions about the transition to independent practice in an ED setting, and what additional requirements NPs should have to meet for this.

To view the full November 2021 newsletter click here.

Written by
Robert McNamara, MD

The AAEM Physician Group suit against Envision (EmCare) is a momentous event for our specialty and our patients. (1) Every EM physician needs to understand this filing and to encourage their colleagues to join in the fight against corporate control. The future of EM is at stake. AAEM is our best hope as no one else in EM has stepped forward on this.
AAEM is asking the courts to invalidate the contractual scheme used by Envision to skirt the patient protections inherent to the prohibition on the Corporate Practice of Medicine (CPOM) as embodied in the CA Business and Professions Code §§ 2400 and 2052. This will be an expensive undertaking but it is the hill we must fight on for the soul of our specialty. Issues at stake include lay influence over the patient-physician relationship, as well as control of the fees charged, prohibited remuneration for referrals and unfair restraint of the practice of a profession. Simply put we are saying profits should not be put over patients.

AAEM has filed suits in the past against corporate interests with favorable results but this litigation is significantly DIFFERENT! In this matter, it is AAEM alone that is taking the risk. Unlike the prior cases, we do not have other parties involved who preferred settlement. In this matter, we are asking the court to weigh in on the need to protect the public by preventing lay control of medical practice. We are not seeking monetary damages, this is for you and our patients.

A key aspect of this filing is a challenge to Envision’s use of a sham professional association owned by a corporate physician executive to skirt the intent of the CPOM prohibition. We plan to argue that it is actually Private Equity (Kravis, Kohlberg and Roberts) that owns and controls the contract and believe the evidence will support that contention. In the recently concluded case of Brovont vs EmCare (2) it was revealed that Dr. Gregory Byrne, a former Texas ACEP President, admitted to holding 275-300 professional entities in 20 states at any given time to enable this scheme. Doctors are allowing their licenses to be used to aid and abet the CPOM. Sadly, other EM physicians have also been complicit in the corporate takeover of our specialty. In fact, EmCare, the forerunner to Envision, was founded by Leonard Riggs, MD the 1980 President of ACEP.

All those who have drank the Koolaid that Private Equity is “good for EM” because they can help us fight the insurers had better look in the mirror. The alignment with PE by major EM organizations has severely tarnished our reputation with the public and Congress. Disturbingly, many now see us as greedy. Furthermore, the insurers via Sound Physicians owned by Optum a subsidiary of United Healthcare already own EM practices. If we don’t take up the banner of CPOM just how do the PE apologists propose will we stop Optum/UHC or other insurers from owning us?

Our patients, our specialty. Now is the time for ALL of the bedside doctors to stand up and rally behind the AAEM. Let us not relegate the future of EM to control by Wall Street and the insurance industry. Any EM doc who is not a corporate leader should join AAEM now. Thank you to those who already have.

Reference:
https://www.aaemphysiciangroup.com/news-and-updates/aaem-pg-files-suit-envision-healthcare-alleging-the-illegal-corporate-practice-of-medicine

https://u.pcloud.link/publink/show?code=BOl

To view the full February 2022 newsletter click here.

Written by Andy Selesnick
Chair of Health Care Litigation at Buchalter

Health insurance companies spend tremendous amounts of time, energy, and money to create policies that result in them not paying providers. For both in and out-of-network emergency physicians, Anthem’s latest is something else.

Over a year ago, Anthem’s Special Investigative Unit (SIU) began looking at emergency physician E&M codes and did not like what it saw. Using what some suspect is an algorithm, the SIU began targeting multiple groups who were billing Level 5s (CPT Code 99285), where there was no admission to the hospital, and within a certain subset of diagnosis codes. Anthem’s SIU would place the groups on prepayment review, requiring them to send in medical records for every Level 5. Anthem would then have a non-emergency physician coder review the claims, and using a policy that is not entirely known, would “freeze” those Level 5 claims with no admission to the hospital. In the past, if Anthem disagreed with a code, it would simply downcode or deny. But now, Anthem decided to pend the claims, effectively neither denying it nor paying it (or any part of it).

What does this mean for the affected groups? Despite the law that requires Anthem to reimburse emergency services, Anthem has refused to do so. Instead, its position is that the emergency physician has to re-bill the claim at a Level 4 (or Level 3) in order to have the claim, and any ancillary codes, paid. This is despite the fact that the documentation supports a Level 5. With a claim that is frozen, the emergency physician not only is not reimbursed even what Anthem thinks is appropriate, but also can’t bill the patient for their co-pay or deductible, because Anthem won’t disclose it.

Anthem’s policy is being applied both in and out of network and means that Anthem won’t reimburse the claim unless it is coded to Anthem’s satisfaction, regardless of what the documentation supports. Many groups are now facing claims that are running $30,000-50,000 or more per month in zero payments.

Many people believe that this policy is illegal, and if left unchallenged, will be adopted by other payers who care little about the impact on staffing and the safety net reduced revenue causes. Multiple groups – including some who are in IEPC – have joined together to fight this practice, filing a lawsuit in California Superior Court seeking an injunction to stop the practice, reimbursement of amounts owed, and punitive damages for Anthem’s interfering with the right to collect co-pays and deductibles from the patients. If you have been impacted by this policy, please feel free to reach out to Andy Selesnick at aselesnick@buchalter.com.

To view the full February 2022 newsletter click here.

Originally published by the San Diego Union Tribune on January 23, 2022 By Paul Sisson
Videography By Nelvin C. Cepeda, John Kelley, Sam Hodgson

Dr. Clay Whiting, IEPC member, was featured in Front-Line Voices with the San Diego Union Tribune. Here is an excerpt of the article in the San Diego Union Tribune.

On Dec. 31, Dr, Clayton Whiting was feeling burnt out after battling through the week after Christmas when the pressure on emergency departments grew particularly heavy. Then, on Jan. 2, he started having coronavirus symptoms that ultimately forced him to skip a planned vacation with his family.

That vacation was to provide the decompression he needed to return refreshed. Instead, he got to spend 10 days quarantined at home. Putting on his scrubs on Jan. 10 for his first shift after his non-vacation, Whiting said he happened to spot a shot of himself back in 1994 as a third-year medical student at Creighton University. The smile on his face in that picture, he said, was so full of hope and desire and compassion that he couldn’t put it away.

“I decided to bring that with me to the front lines so that at 2 a.m., when I was, you know, bearing witness to the pain and suffering of my fellow humanity, I could remind myself of the importance of treating each individual with that same level of compassion and love and caring that I had when I was a third-year medical student,” Whiting said.

Another antidote for 2022? He now starts every shift with a visit to Mercy’s chapel, praying for strength.

To view the interview with Dr. Whiting click here.

To view the full February 2022 newsletter click here.

Written by Roneet Lev, MD
Executive Director, IEPC

I had the honor of discharging a 23-year-old patient with autism, let’s call him Austin, who presented to the emergency department on a 5150 psychiatric hold due to violent behavior. There were no locked mental health beds in the area and so Austin remained in our emergency department for two weeks. Austin awoke and went to sleep day after day in the Emergency Department – eating, drinking, and I imagine brushing his teeth. In total he was in the ED more shifts than I was. Some call this psychiatric boarding. I don’t like that term – it’s misleading, it sounds like no medical care was delivered. Stop Calling It Boarding – It’s ED Psychiatric Care During those two weeks Austin had a sitter next to him 24/7. He received regular vital signs, medications, counseling, rounding by the psychiatric team, consultation and orders by different emergency physicians, and daily consultation by a psychiatrist. He received successful medical and psychiatric treatment over those weeks. The treatment, in fact, was so good that Austin was safely discharged home. A mental health bed never opened. Austin was not just boarding in the ED, Austin received Emergency Department based psychiatric treatment. ED psychiatric treatment works, but unfortunately it is not the best place for mental health patients and disastrous for overall ED flow. 2 Now picture yourself as the health insurer who needs to pay for Austin’s care. Austin’s bill would include one hospital ED visit, one ED physician visit, perhaps an observation code, some medications, and a psychiatrist bill. What a bargain! That beats a two week stay in a mental health facility. Health plans must love ED “psychiatric boarding”! What is the incentive to transfer a patient or create new mental health beds if care is provided in the ED for less? What if the health plans were charged a daily ED hospital and ED physician rate for every day that their patient cannot be placed? Now that would align incentives.

To view the full November 2021 newsletter click here.