American Academy of Emergency Medicine

AAEM Comments on the SGR Repeal Discussion Draft

November 12, 2013

The Honorable Dave Camp
Chairman, House Ways & Means Committee

The Honorable Max Baucus
Chairman, Senate Finance Committee

The Honorable Sander Levin
Ranking Member, House Ways & Means Committee

The Honorable Orrin Hatch
Ranking Member, Senate Finance Committee

Dear Chairman Camp, Chairman Baucus, Ranking Member Levin, and Ranking Member Hatch:

Thank you for providing us the opportunity to comment on the SGR repeal discussion draft outlined by the House Ways & Means Committee and the Senate Finance Committee. The American Academy of Emergency Medicine (AAEM) is the specialty society of board certified emergency physicians. Many elements of your proposal are consistent with AAEM’s mission to support fair and equitable practice environments for emergency physicians. We appreciate your leadership on this issue and strongly support your commitment to involve the physician community in your reform efforts.

Permanent SGR repeal will provide certainty to physicians and patients. As emergency physicians, we are uniquely impacted by the SGR formula. As you know, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires emergency physicians to provide treatment to every patient who presents to an emergency department - regardless of their insurance status. If other physicians choose to drop Medicare or Medicaid patients due to the uncertainty created by the SGR, the burden is often shifted to emergency departments. We have seen this in practice as an increasing number of medical professionals decline to take on Medicare or Medicaid patients. A permanent fix will help provide clarity to all physicians, and will be part of a constructive dialogue on common sense Medicare payment reforms.

This draft seeks to reward quality of care over volume of care, and AAEM is strongly supportive of this goal. Care provided in the Emergency Department (“ED”) does not fit into the same model of care as office-based practices. When designing metrics that reward quality and efficiency of care in the ED, Congress, CMS, and states should take into account the adverse impact of imposing additional burdens on our crowded EDs across the country. For example, mandates involving the use of electronic health records (EHRs) can take away critical time from patient-physician interaction in the ED, and this impact is felt not only by emergency physicians but also nurses, patients, and the hospital. AAEM looks forward to working with Congress, CMS, and states to develop appropriate quality metrics for emergency medicine.

Like Congress, AAEM supports the implementation of payment reforms that reward quality, efficient care. Please find below a description of several complimentary reforms that would have an immediate impact on quality of care and patient outcomes.

1) Due Process for Emergency Physicians

Description of the Issue
Emergency physicians believe that due process is fundamental to our ethical mandate to care for patients without being pressured by administrative or other external influences.

Due process is defined as a fair hearing with a right of appeal in front of peers on the medical staff prior to any alteration, restriction or termination of our privileges to practice medicine in a hospital. The Federal EMTALA statute has resulted in the ED becoming the “safety net” for the financially disenfranchised patient. Emergency physicians necessarily serve as direct advocates for their patients, many of whom go to EDs because they are vulnerable due to medical, social or financial issues outside of their control. In some cases, such advocacy may conflict with non-patient-oriented forces placing the emergency physician at odds with the hospital or consulting physicians. Therefore, any contractual limitation on the due process rights of emergency physicians is not in the public interest as it hinders the ability of emergency physicians to act at all times in the best interest of the patient.

AAEM supports an addition to the current CFR Title 42, Part 482.55 [referenced below]. The following language would provide basic due process rights for emergency physicians: 482.55 (B) (3):
“The medical staff members providing medical care in the emergency service or department must be entitled to a fair hearing and appellate review through medical staff mechanisms before any termination or restriction of their professional activity or medical staff privileges. These rights cannot be denied through a third party contract.”

Code of Federal Regulations - Title 42: Public Health PART 482.55 – Conditions of Participation for Hospitals: Emergency Services

The hospital must meet the emergency needs of patients in accordance with acceptable standards of practice.
(A) Standard: Organization and direction. If emergency services are provided at the hospital—
(1) The services must be organized under the direction of a qualified member of the medical staff;
(2) The services must be integrated with other departments of the hospital;
(3) The policies and procedures governing medical care provided in the emergency service or department are established by and are a continuing responsibility of the medical staff.

(B) Standard: Personnel
(1) The emergency services must be supervised by a qualified member of the medical staff. (2) There must be adequate medical and nursing personnel qualified in emergency care to meet the written emergency procedures and needs anticipated by the facility.

2) Enforced Billing Transparency

Description of the Issue
Many contract management groups (CMGs) do not allow emergency physicians to see what is being billed and collected for their professional services. Physicians should have the right to see what is being billed in their name. This is not only a fairness issue, but it also has legal implications because emergency physicians are held responsible for their billings and collections. CMS will approach both physicians and billing companies if they feel that excess charges are being made. Denying a physician the ability to see what is billed in their name places them at an increased risk of being audited.

AAEM supports the inclusion of language in the discussion draft relating to the transparency of Medicare data. AAEM is opposed to fraud and abuse in the Medicare system. Emergency physicians can serve as an important defense against billing fraud, but they are unable to do so if they are not allowed to see what is being collected in exchange for their services. A transparent system results in better patient outcomes and more efficient Federal healthcare programs.

AAEM supports an addition to the current CFR Title 42, Part 424.80 [referenced below]. The following language would enhance billing transparency: "The billing entity shall provide the supplier with itemized monthly reports of the claims submitted and remittances received on behalf of the supplier."

Code of Federal Regulations - Title 42: Public Health PART 424.80 – Prohibition of reassignment of claims by suppliers

(2) Access to records. The supplier furnishing the service has unrestricted access to claims submitted by an entity for services provided by that supplier.

Taken together, these straightforward, common sense reforms will improve the physician practice environment and improve efficiency and patient outcomes. We look forward to the opportunity to provide you with additional information on these proposals.

Finally, we would like to express our strong support for medical liability reform. We appreciate the past efforts of Congress to fix our broken medical liability system, and we hope that your Committees will continue working to bring much needed reforms to this aspect of our judicial system. AAEM supports sovereign immunity for emergency physicians acting in a volunteer capacity or providing uncompensated care for the uninsured or Medicaid population under EMTALA. Emergency physicians experience the negative effects of rapidly rising liability insurance rates on a daily basis. In EDs across the country, physicians face challenges sustaining their practice due to skyrocketing insurance rates combined with the large numbers of uninsured or underinsured patients they treat. Under the current system, many emergency physicians find themselves unable to obtain needed specialty consultation for victims of trauma due to liability concerns.

The net effect of this broken system is the cost increase of healthcare through the practice of defensive medicine. The costs associated with defensive medicine force physicians to make difficult decisions to limit services, retire early, or relocate their practices to states where medical liability insurance premiums are more stable. Without Congressional action to address medical liability reform, the practice of defensive medicine will continue to be accepted as a new standard of care, and healthcare costs will grow at an unsustainable rate.

Thank you again for the opportunity to provide feedback on the SGR repeal discussion draft that you have developed. We look forward to having a robust dialogue with your Committees and hope to continue working with you on issues that are critical to the physician community. We welcome the opportunity to serve as a resource to you on issues impacting emergency care.

Sincerely yours,
William T. Durkin, Jr., MD MBA FAAEM
AAEM President