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BOARD OF DIRECTORS 

Angela F. Gardner, MD, FACEP 

 President 

Sandra M. Schneider, MD, FACEP 

 President-Elect 

David P. Sklar, MD, FACEP 

 Chair of the Board 

Kathleen M. Cowling, DO, MS, FACEP 

 Vice President 

Andrew E. Sama, MD, FACEP 

 Secretary-Treasurer 

Nicholas J. Jouriles, MD, FACEP 

 Immediate Past President 

Andrew I. Bern, MD, FACEP 

Michael J. Gerardi, MD, FACEP 

Ramon W. Johnson, MD, FACEP 

Jay A. Kaplan, MD, FACEP 

Rebecca B. Parker, MD, FACEP 

Alexander M. Rosenau, DO, FACEP 

David C. Seaberg, MD, CPE, FACEP 

Robert C. Solomon, MD, FACEP 

COUNCIL OFFICERS

Arlo F. Weltge, MD, MPH, FACEP 

 Speaker 

Marco Coppola, DO, FACEP

 Vice Speaker 

EXECUTIVE DIRECTOR

Dean Wilkerson, JD, MBA, CAE 

August 3, 2010 

 

Donald M. Berwick, MD, MPP, FRCP 

Administrator 

Centers for Medicare & Medicaid Services 

Department of Health and Human Services 

445-G, Hubert H. Humphrey Building 

200 Independence Avenue, SW 

Washington, DC 20201 

 Attention: RIN 0991-AB69 

Re: PPACA Preexisting Condition Exclusions, Lifetime and Annual Limits, 

Rescissions, and Patient Protections Interim Final Rule 

Dear Dr. Berwick: 

On behalf of the American College of Emergency Physicians’ (ACEP) more than 28,500 

members, we are pleased to share our support and concerns on specific proposals in this 

Interim Final Rule that affect the practice of emergency medicine and the patients we 

serve. Our comments focus largely on patient protections and emergency services. 

ACEP strongly supports the timely implementation of new federal policy that protects 

individuals who need health insurance the most, those with pre-existing conditions and 

those who may need extensive and expensive medical care. And, we are also pleased 

that the provisions apply to both employer-sponsored plans and insurance coverage sold 

in the individual market. 

Emergency Services 

ACEP has long supported three positions for emergency services that were included in 

PPACA: 1) universal adoption of the prudent layperson standard for individuals seeking 

care in the nation’s emergency departments, 2) a ban on prior authorization for 

emergency care, including emergency services provided out-of-network, and, 3) a ban on 

greater restrictions on benefits and co-payments for out-of-network emergency services. 

We largely support the language of the interim final rule with regard to implementation 

of these provisions. However, we have some concerns and seek clarification on these 

regulatory provisions as well. 

First, we appreciate the clearly stated acknowledgement that allowing plans and insurers 

to pay emergency physicians whatever they see fit defeats the purpose of protecting 

patients from potentially large bills. In that light, we also support development of an 

objective standard to establish “fair payment”. Insurers know that emergency physicians 

will see everyone who comes to the ED due to EMTALA responsibilities, and many 

leverage that fact to impose extremely low reimbursement rates. While a large majority 

of our members participate in nearly every plan or insurer network in their area, the 

primary reason they cite for not joining a plan’s network is that the plan has arbitrarily 

offered an in-network payment rate that fails to cover the costs of providing the service. 
ACEP Comments Insurance Protections –PPACA 

August 3, 2010 

Page 2 

This forces the physicians to balance bill the patients, which often results in an 

unsatisfactory experience for everyone but the insurer. 

One clarification that is needed in this regulation relates to the application of state laws 

that prohibit or limit balance billing for emergency department services. The 

Departments’ more recent interim final rule, published on July 23rd, creates new patient 

protections for appeals of claims denials for group health plans and health insurance 

issuers. That rule will take effect for plan years starting September 23, 2010 but will not 

apply to residents in states that already have external review laws until July, 2011, giving 

those states time to adjust their own rules. 

We believe that the same legal reasoning should apply regarding the effective date for the 

restrictions on cost-sharing for emergency departments so that these protections affect 

plans and insurers in every state (except currently grandfathered plans). Allowing state 

bans on balanced billing is inconsistent and incompatible with the statutory language of 

PPACA that permits balanced billing and we believe Federal law should prevail. We 

strongly support a uniform national standard with an effective date that provides states 

with time to make necessary revisions through their legislatures. 

Payment for Out-of-Network Emergency Services

The IF rule requires that the plan or issuer pay for out-of-network emergency services 

(prior to imposing in-network cost-sharing) the greater of: 1) the median in-network rate; 

2) the usual customary and reasonable rate (or similar rate determined using the plans or 

issuer’s general formula for determining payments for out-of-network services); or 3) the 

Medicare rate. 

 Median in-network rate. Clarification is needed on how “network” will be 

defined in terms of the service area and how regulators will collect and verify 

proprietary payment data from plans and insurers. Also, how do the Departments 

propose to enforce use of reasonably drawn geographic areas for purposes of 

constructing a transparent median rate? 

 Usual and customary reasonable rate. As noted in the IF rule, “there is wide 

variation in how plans and issuers determine in and out of network rates.” The 

term “reasonable” is in the eye of the beholder. For many years, usual and 

customary rates referred to charges or a proportion of charges. This has changed 

in recent years and physicians, particularly emergency physicians, have had 

problems with the “black box” approach that commercial insurers have used to 

determine usual and customary “rates” for out of network providers. At this 

time, we are unaware of a national database that is widely available and provides 

timely data for objective comparisons of charges and/or costs that could be used 

to implement this part of the regulation. A new database, perhaps the FAIR 

health data that is currently being developed as a result of the settlement with 

Ingenix, may prove to be more timely and accurate, but any database used to 

establish usual and customary reasonable rates will require transparent validation, 

monitoring, and active enforcement by state and federal insurance officials. 

 The Medicare rate. We assume that the Medicare payment rate with adjustments 

would be based on the location of the physician/hospital but seek clarification. 
ACEP Comments Insurance Protections –PPACA 

August 3, 2010 

Page 3 

ACEP also asks that payment for out-of-network emergency physician services to be paid 

directly to the physician/group. Insurers often pay the patient and the physicians must 

then pursue payment from the patient which also leads to confusion, ill will, and most 

often non-payment for the out-of-network services. We believe that enrollees should be 

permitted to assign benefits to the emergency physician group. Assignment would make 

clear what the enrollee payment responsibilities are, i.e. any co- payments or deductibles, 

and not place them in between the payer and the provider. 

 

If you have any questions about our comments and recommendations, please contact 

Barbara Tomar, ACEP’s Federal Affairs Director at (202) 728-0610, ext. 3017. 

 

Yours truly, 

Angela F. Gardner, MD, FACEP 

President