8400 Westpark Drive, 2nd Floor 

McLean, VA 22102 

PHONE: 703 610-0314 

FAX: 703 995-4678 

EMAIL: info@edpma.org 

www.edpma.org 

August 25, 2010 

By Electronic Submission 

Jay Angoff 

Director 

Office of Consumer Information and Insurance Oversight 

Department of Health and Human Services 

Room 445-G, Hubert H. Humphrey Building 

200 Independence Avenue, SW 

Washington, DC 20201 

Re: OCIIO-9994-IFC; Interim Final Rule - Patient Protection and Affordable Care Act: 

Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient 

Protections 

Dear Director Angoff, 

On behalf of the Emergency Department Practice Management Association (EDPMA) and its 83 

affiliated members, we appreciate the opportunity to provide comments on the Interim Final 

Regulations for the Patient Protection and Affordable Care Act (PPACA): Preexisting Condition 

Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections (the “Interim Final 

Regulations”), as published on June 28, 2010 (75 Fed. Reg. 37188). 

The EDPMA is one of the nation’s largest trade associations that support the delivery of 

emergency medical care to Americans. EDPMA’s membership includes emergency department 

physician groups of all sizes, as well as organizations that support these groups. Our membership 

impacts over 50% of the 119 million patients seen in U.S. emergency departments each year, 

representing one of the most important safety nets in America’s health care system. 

Patient Protections – Emergency Services 

EDPMA strongly supports the patient protections enacted in the PPACA and their application to 

group and individual coverage. The PPACA seeks to protect current insurance coverage as well 

as to expand coverage. The patient protections included in the PPACA will help ensure, along 

with careful monitoring and enforcement by the relevant Agencies, that the insurance coverage 

provided to all individuals is meaningful. EDPMA was a strong supporter of these provisions 

during the Congressional consideration. EDPMA looks forward to working with the Office of 

Consumer Information and Insurance Oversight to make sure that the law and the Interim Final 

Regulations do, in fact, protect the patients our members see every day in the nation’s emergency 

departments. 

EDPMA believes that the Departments have taken strong first steps to translate the patient 

protections found in the PPACA into the Interim Final Regulations. Of particular importance to 

EDPMA are the PPACA requirements to cover emergency services: 1) without the need for any 

prior authorization determination, 2) without more restrictive benefits, co-payments, and 

administrative requirements for services outside of an insurer’s provider network, 3) in all cases 
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where a prudent layperson determines his or her symptoms may indicate the presence of an 

emergency condition. 

We applaud your approach in implementing these protections. We appreciate that the regulations 

recognize that the statutory intent would be thwarted if the plan or issuer paid an “unreasonably 

low amount to the provider.” Although the statute clearly permits balance billing, we agree that 

balance billing is a generally a provider’s reluctant response to an insurer’s attempt to issue 

unreasonably low payment amounts to non-contracted providers. As a result, insurers and plans 

consequently subject their members and beneficiaries to balance billing for services which 

otherwise remain poorly compensated. Additionally, it would defeat the purpose of the 

protections if such low payments were made. We also appreciate the difficulty in determining 

what would be appropriate payment levels. Due to this difficulty, we are hopeful that the 

Agencies will closely monitor practices in this area and adjust the standards as appropriate. 

In the interim, we suggest below several areas for modifications to the Interim Final Regulations. 

We would be happy to meet with the Department to discuss any of these areas at greater length. 

Cost – sharing requirements 

 

The Interim Final Regulations establish an approach to determine when a plan or issuer would be 

regarded as being in compliance with the cost-sharing restrictions of the statute. In short, the 

approach states that if the plan or issuer provides benefits equal to the greatest of: 1) median innetwork rate, 2) the rate generally used to calculate out-of-network payments; or, 3) the Medicare 

rate; it will be regarded as not violating the prohibition on differential limits for emergency 

services received out of network as opposed to in-network. We encourage the Agencies to work 

with hospital and physician providers of emergency services to determine how this approach 

works in practice. We are concerned that insurers may continue to make inappropriately low 

payments to emergency service physicians and thereby potentially dilute the patient protections 

set forth by Congress. EDPMA would be happy to provide feedback and expertise from our 

members as this regulation comes into effect. We also have some initial suggestions and requests 

for clarification: 

First, we believe that the language stating, “a plan or issuer satisfies the copayment and 

coinsurance limitations in the statute if it provides benefits for out-of-network emergency services 

in an amount equal to the greatest of three possible amounts,” should be modified to read, “at 

least the greatest of three possible amounts.” Requiring plans and issuers to consider paying 

exactly the amount equal to the greatest will be administratively difficult and could actually 

encourage plans and issuers to lower payments from current levels. 

We would like clarification regarding how emergency services providers, and ultimately the 

Agencies will determine each plan or issuer’s median in-network rate. Plans frequently have 

many in-network rates applicable across different geographic areas and/or types of providers. 

Also, much of the information necessary to determine median in-network rate is typically 

proprietary, and thus, we would like to see a mechanism for reporting and enforcement spelled 

out in the regulations. 

In reference to the “generally used out-of-network rate” payment option, we would support use of 

a usual and customary rate approach, or other mechanism that does not rely on a plan or issuer’s 
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McLean, VA 22102 

PHONE: 703 610-0314 

FAX: 703 995-4678 

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sole determination of “reasonable.” The terms “usual and customary” reference a fact based 

evaluation, while the term “reasonable” could be subject to various interpretations. Further, 

“usual and customary” determinations must be transparent and accountable to state and federal 

authorities for enforcement. In the past, insurers have consistently manipulated data to justify 

lower payments for out of network services. Some objective standard, (possibly, the FAIR health 

data currently being developed after a settlement between Ingenix, Inc. and the state of New 

York,) is necessary to establish fair out-of-network charges. 

A minor clarification may be in order with respect to the Medicare rate as one of the three 

payment rates. We believe that the Agencies should clarify that the Medicare payment rate 

would be adjusted to take into account the location of the hospital where the physician provided 

the emergency services. 

Evaluating the three differing methodologies for payment highlights the complexity of this area. 

We realize that any regulations in this area will present a need for interpretation as well as 

enforcement challenges, but we hope that the Agency will work with relevant stakeholders to 

fine-tune a reasonable approach which balances the need for certainty with the need for full 

patient protection. 

We would note that the Examples provided in the Interim Final Regulations may raise additional 

questions. For instance, Example 1 outlines these facts: 

A group health plan imposes a 25% coinsurance responsibility on individuals who are 

furnished emergency services, whether provided in network or out of network. If a covered 

individual notifies the plan within two business days after the day an individual receives 

treatment in an emergency department, the plan reduces the coinsurance rate to 15%. 

The conclusion finds: 

The requirement to notify the plan in order to receive a reduction in the coinsurance rate 

does not violate the requirement that the plan cover emergency services without the need 

for any prior authorization determination. This is the result even if the plan required that it 

be notified before or at the time of receiving services at the emergency department in order 

to receive a reduction in the coinsurance rate. 

Though the policy described in this example would not violate the prior authorization 

requirement; it arguably imposes a cost-sharing requirement on the enrollee that would exceed 

that of an enrollee going to an in-network provider. We believe this approach would violate the 

statute. Therefore, this example should not be included as highlighting a compliant practice. 

Also, it is not clear to us, if a dispute such as this did arise, who would monitor and enforce the 

regulations. We seek clarification on insurer reporting requirements, monitoring functions, 

agency jurisdiction, and the appropriate avenue for provider complaint. We hope to work with 

your office in developing the proper approach. 

Finally, EDPMA suggests that the Interim Final Regulations add a provision requiring insurers to 

honor “assignment of benefit” agreements between patients and providers. Some insurers refuse 

to pay providers directly for out-of-network costs and will send payments to the patient. Patients 

often do not realize that these payments were meant for physicians, leading to confusion and 
8400 Westpark Drive, 2nd Floor 

McLean, VA 22102 

PHONE: 703 610-0314 

FAX: 703 995-4678 

EMAIL: info@edpma.org 

www.edpma.org 

added administrative expense to collect. By allowing patients to assign benefits directly to a 

provider at the time of service, patients would be protected from unnecessary payment disputes 

and collection actions. 

Thank you again for issuing strong regulations to protect patient interests. We look forward to 

working with you to further improve patient access to appropriate, high quality emergency 

services. Please contact me or EDPMA’s Executive Director, Linda Ayers, at (703) 610-9033 if 

we can be of any assistance on this topic or any other area. 

Sincerely, 

Randy Pilgrim, MD, FACEP 

Chair, EDPMA Board of Directors