Click here to view a PDF of the newsletter.
In this issue:
AAEMPG vs ENVISION
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.
https://u.pcloud.link/publink/show?code=BOl
To view the full February 2022 newsletter click here.
Watch Out for Anthem’s Latest Ploy
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.
SB-864 Tyler’s Law
Written by Roneet Lev, MD
Executive Director, IEPC
SB-864 was introduced by Senator Melissa Melendez on January 20, 2022. It is named after Tyler, a boy who went to a California emergency department with his mother after an overdose and was reported to have no opioids in his system. Tyler’s mom Juli was assured that he had no fentanyl in his system. She made a point to ask about fentanyl and was given well-intentioned, but wrong reassurance. Based on this information Tyler was treated with a lower supervised addiction plan when he overdosed from fentanyl a few days later. Juli turned her grief into action advocating for change. She helped me find an author for this fentanyl testing legislation.
Tyler’s Law is advocating for changing the “Federal 5” to the “Federal 6” in California. The drugs included in a standard rapid urine drug screen include the “federal five”: Amphetamines, Cocaine, Marijuana, Opiates, and Phencyclidine (PCP). These five categories were established by the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Division of Workplace Programs. Synthetic opioids such as fentanyl, oxycodone and methadone do not show up in a standard opiate drug screen and require a separate test. It is time for the “Federal 5” to become the “Federal 6”, including fentanyl to key drugs in a panel.
In San Diego, we launched a campaign to increase fentanyl testing capability. Within 10 months the number of hospitals that include fentanyl in the urine drug screens went from 4 to 15, making it the community standard of care. The fentanyl reagent costs on average 75 cents per testing, giving little excuse to adding this testing capacity.
The law is not a mandate for testing. If you don’t want to order a drug test, don’t order it. Fentanyl accounts for 64% of all drug overdoses and is the leading cause of death in age 18 -45, more than COVID. If you are going to get a drug screen that includes PCP and cocaine, why would you not want it to include fentanyl?
How does a positive fentanyl test make a difference?
- Informs the doctor
- Informs the patient
- The patient may inform friends and other users
- Encourages a prescription for naloxone to the patient, friends, or family
- Motivates the patient to change
- Encourages connection to addiction treatment
- Provides data to MAT clinics and outpatient settings that do not have capacity for rapid fentanyl testing
To learn more, view the Fentanyl Tool Kit on the California ACEP website or on the San Diego Prescription Drug Abuse Web Site which includes a Fact Sheet on SB-864.
To view the full February 2022 newsletter click here.
Front Line Heroes
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.
Stop Calling It Boarding – It’s ED Psychiatric Care
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.
TMA Sues Feds Over Unfair Rule for Surprise Billing Law
| Originally published on October 29, 2021 Updated November 2, 2021 [Austin, TX] — The Texas Medical Association (TMA) filed a lawsuit in federal district court in Tyler, Texas, after the Biden administration failed to follow clear direction from Congress about how to implement the dispute resolution process set forth in the No Surprises Act, legislation that was passed in 2020 to protect patients from surprise medical bills. “TMA supports the patient protection intent of the No Surprises Act,” TMA President E. Linda Villarreal, MD, said. “However, TMA’s lawsuit challenges one component of the administration’s rule that ignores congressional intent and unfairly gives health plans the upper hand in establishing payment rates when a patient receives care from an out-of-network physician, oftentimes in an emergency.” Congress intended to create a fair and unbiased process to resolve billing disputes between health insurance companies and physicians by ensuring that all relevant factors must be considered, with each given the weight deemed appropriate by the arbitrator. In contrast, the administration’s short-sighted approach will make it harder for patients to access care by driving down reimbursement rates and encouraging insurance companies to continue narrowing their networks. It will be difficult for small physician groups to keep caring for patients. “The lawsuit filed yesterday ensures that the protections for patients against balance bills will go into effect on Jan. 1, 2022, while seeking to stop the imminent harm to physicians and hospitals created by an unfair arbitration process,” Dr. Villarreal said. The recently released rule rewrites the statute by requiring the arbitrator in the independent dispute resolution process to presume that the qualifying payment amount (QPA), set by health insurance companies for patient cost-sharing purposes, is “the appropriate out-of-network rate.” This creates a bias that prioritizes offers closest to the QPA, rather than allowing arbitrators to exercise their discretion to weigh all relevant factors and select the reimbursement rate that most accurately reflects fair market reimbursement and individual circumstances. The TMA lawsuit asks the court to strike this section of the rule and instead restore the fair, balanced dispute resolution process that Congress created. The lawsuit also alleges a violation of the Administrative Procedure Act, which requires a formal notice and comment period in advance of finalizing such a rule. The agencies failed to solicit and incorporate comments from stakeholders for this crucial aspect of the law. “We wholeheartedly agree with U.S. Reps. Richard Neal’s (D-Mass.) and Kevin Brady’s (R-Texas) concern that the rule tips the scale in favor of insurance companies and will leave patients vulnerable,” Dr. Villarreal said. Representative Neal is chair of the U.S. House Ways and Means Committee, and Representative Brady is the past chair of the committee and currently ranking Republican member. “We are disappointed the Biden administration ignored congressional intent and essentially set up the arbitration system to operate like a casino, with health insurers playing the role of the house,” Dr. Villarreal said. “Everyone knows the house always wins. With the current rule, patients, physicians, and our country lose.” TMA is the largest state medical society in the nation, representing more than 55,000 physician and medical student members. It is located in Austin and has 110 component county medical societies around the state. TMA’s key objective since 1853 is to improve the health of all Texans. |
Andrew Selesnick to Discuss Legal Billing Issues Affecting Independent Emergency Physician Groups
IEPC is proud to present the 2021 Speaker Series, to continue on Monday, November 22 at 9 AM Pacific! This free speaker series will welcome leaders in the field to cover timely and engaging topics that are important to independent emergency physicians. The sessions will precede each monthly conference call and are open to all IEPC members and those who may be interested in joining.
Session: California Hospital Association and Independent Emergency Physicians
Presented by: Andrew Selesnick – Shareholder, Chairman of the Healthcare Litigation Practice Group
Time & Date: Monday, October 25 from 9:00 AM – 9:30 AM
This series will be presented on the fourth Monday of the month May – November. Advance registration is required and can be completed here. After registering, you will receive a confirmation email containing information about joining the meeting.
We hope to see you Monday!
IEPC Newsletter – November 2021
Click here to view a PDF of the newsletter.
In this issue:
• Stop Calling It Boarding – It’s ED Psychiatric Care
• California ACEP 2021 Legislative Review
• California Hospital Association 2021 Update
• AAEM Highlights of Legal Advocacy For Independent Emergency Physicians
• Trigger Point Injections
• Viewpoint In Emergency Medicine News
• IEPC Speaker Series
From the ACEP Advocacy Action Center: There is Still Time: We Need Your Help on Surprise Billing
There is still time to fight back and contact Congress about the second regulation released by the Biden Administration on surprise billing. A strong showing of bipartisan concern is critical to bring the Administration’s attention to the overreach and gross misinterpretation of the IDR section of this law and to compel their action to amend it to align with congressional intent.
Your advocacy is working, but we must keep the pressure on.
The letter circulating in Congress by Reps. Tom Suozzi (D-NY), Brad Wenstrup (R-OH), Raul Ruiz (D-CA) and Larry Bucshon (R-IN) is up to 124 signatures, equally supported by Democrats and Republicans in Congress. As stated in our communication to you last week, the letter addressed to HHS Secretary Becerra, Labor Secretary Walsh, and Treasury Secretary Yellen, urge their respective departments to follow the letter of the law and amend the IFR section of the No Surprises Act to align the law’s implementation with the legislation that Congress passed.
If you have not yet emailed your U.S. Representative, there is still time!
The second regulation, which sets forth how the critical independent dispute resolution (IDR) process will be implemented, is completely out of step with the final legislation, the No Surprises Act, that Congress voted on and passed last December. As intentionally designed by Congress, the IDR process was to offer a fair interaction between insurance companies and physicians once patients are out of the middle of billing disputes.
But instead, the new rule undermines the entire IDR process by requiring arbiters to greatly prioritize the artificially low Qualified Payment Amount (QPA), or median in-network rate, set by insurance companies, rather than giving equal weight to a mix of other factors which were prominently emphasized in the legislation (such as complexity of the case, level of training of the physician, etc.).
This approach is sure to drive payment rates lower and encourage insurance companies to narrow their networks even further, which would make it harder for patients to get emergency care. We now fear the viability of physician practices is at stake, and it will be harder for emergency physicians to care for patients, particularly in small or rural communities.
Click here to send a message to your U.S. House member. Ask them to sign on to the Suozzi/Wenstrup letter regarding the implementation of the IDR process in the No Surprises Act.
We must keep the pressure on the Biden Administration to enact the changes necessary to make sure this important legislation is implemented as Congress intended. Let them know that now is not the time to take away resources from emergency physicians who are needed on the front lines in communities across the country.
The letter closes on November 5, so please contact your legislator as soon as possible.