FCEP believes it is extremely important to prevent “surprise bills” from being sent to patients who have been treated in an emergency department. These surprise bills are a result of “balance billing,” or the practice of when a practitioner sends a patient a bill for the remaining balance of the care provided that the health insurer did not pay.

In the 2016 Legislative Session, FCEP, in good faith, agreed to legislation that would ban physicians from balance billing an insured patient treated in the emergency department in return for appropriate reimbursement, as defined by statute, from the insurer. The bill “requires insurers to provide coverage for emergency services without a prior authorization determination and regardless of whether the provider is a participating provider.”1 After all, balance billing results from the unwillingness of insurers to adequately pay healthcare providers.

Unfortunately, the law is not working as intended.

1) Providers are not being compensated fairly: The patient no longer receives a surprise bill; instead, the healthcare provider is routinely being surprised by health insurers, who are underpaying for the care provided. This care, in many cases, has saved the patient’s life.

Several physician groups have taken payment disputes falling under the surprise billing ban to the Statewide Provider and Health Plan Claim Dispute Resolution Program, referred to hereafter as MAXIMUS, which is housed at AHCA. MAXIMUS has recently ruled in favor of these physician groups. These physician wins utilizing the dispute resolution program has prompted health insurers to “opt out” of the process. They claim a loophole is available because of past case law. Now, physicians have no easy way to challenge underpayments because of the insurer’s claimed ability to simply “opt out” of this venue.

The only player winning under the current scenario is the insurer. They are able to pocket premium dollars without passing them on to the physicians providing care.

This has never been truer than now, as emergency care providers struggle with the challenges of the COVID-19 pandemic. As frontline providers nationwide risk their lives daily to care for COVID-19 patients, many emergency medicine group practices have been forced to decrease their workforce, coverage and/or benefits. A recent workforce study released by the American College of Emergency Physicians paints a grim picture. Since the pandemic began:

• 21% have had to lay off physicians
• 31% have furloughed physicians
• 56% have cut pay for the same work
• 83% have experienced a decrease in productivity
• 83% have cut hours of ED coverage
• 47% have deferred or cut benefits

In 2015, each emergency physician provided an average of $138,000 in uncompensated care. Between being consistently undercompensated by health insurers and the unique challenges of this year, collectively, emergency physicians are expected to miss out on millions of dollars.

2) The cost of insurance and care keeps rising for patients anyway: While the patient has been taken out of the middle of billing disputes, they are now experiencing another problem: insured Floridians are paying their rising premiums and deductibles, but insurers are not honoring their obligations to compensate care providers appropriately.

Physicians set charges based on the cost of recruiting and retaining qualified providers, providing for uncompensated and undercompensated care, standby costs for surge capacity, medical malpractice insurance costs, among other factors. National and state databases, such as FAIR Health, show aggregate and median charges per zip code for billions of provider charges. Meanwhile, insurers arbitrarily decide how to reimburse out-of-network care, and amounts vary widely.

Insurers are cutting their costs by paying providers less while raising deductibles on patients, increasing financial burdens on consumers and providers as insurance profits rise every year. When resources are withheld from these providers, the care they are able to provide patients suffers as well. And, as this pandemic has acutely reminded us, anyone could be one of those emergency patients, including you or a loved one.

“The bill provides that willfully failing to comply with the balance billing provisions with such frequency as to constitute a general business practice is defined as an unfair method of competition and an unfair or deceptive act or practice.” [1]

Emergency physicians treat anyone and everyone. Emergency care is provided for about 10 million patients in Florida every year, and then reimbursement is sought for that care. Many of these emergency patients are uninsured, underinsured by government payers, or uncompensated altogether, which is not a sustainable business model.

Emergency care is unique. It is healthcare’s safety net. Without safeguards from the Florida Legislature in place, there is no way for emergency physicians to recoup the cost of care when insurers do not pay correctly. Caregivers should be reimbursed appropriately for the services they provide. Closing the loophole being used by insurers to opt out of the payment dispute program enacted during the 2016 Session is a top priority for 2021 Session.

The intent of the law was to protect patients and emergency physicians. Florida has protected the patient. Now, it’s time to protect the caregiver. ■

References

1. Florida Senate Health Policy Committee. “CS/CS/CS/HB 221 — Health Care Services Bill Summary.” 2016. Access at: www.flsenate.gov/Committees/billsummaries/2016/html/1387#:~:text=The%20bill%20prohibits%20an%20out,services%20or%20covered%20nonemergency%20services.&text=Insurers%20or%20health%20care%20providers%20may%20not%20balance%20bill%20the%20insured
2. FCEP. “Surprise Billing.” Presentation. Health Insurance Summit, December 9, 2020.