At the state level, one of the hottest policy topics discussed at HIMSS 2017 in Orlando was legislation on so-called “surprise” medical bills incurred when a patient unexpectedly receives care from an out-of-network physician.

These aren’t isolated incidents, according to recent studies. Of all emergency department visits, 22 percent have included care from an out-of-network physicians, and some specialists could charge up to four times the Medicare rate to those patients. Laws tying those charges to Medicare rates, however, could have major financial consequences on hospitals in those states.

It’s not just patient advocates concerned about these charges—it's also the doctors themselves. Michele Kimball is president and CEO of Physicians for Fair Coverage, a coalition of emergency physicians, anesthesiologists and radiologists seeking to “end the surprise insurance gap.” With some success pushing through legislation in New York and Connecticut, Kimball spoke with HealthExec about the next steps for these policies and why physicians are getting involved in these conversations.

HealthExec: Whose fault is it that surprise bills happen in the first place?

Michele Kimball: Surprise medical bills are the result of two major forces happening in the marketplace.

First, insurers are narrowing networks and/or offering physicians unacceptable "take-it or leave-it" reimbursement deals that can force them to practice out-of-network. Second, the proliferation of high deductible insurance policies—offering, in most cases, the only affordable premium option—leaves patients increasingly and surprisingly underinsured.

In an emergency, for example, patients often have no control over which facility they go to or are rushed to—and it may or may not be in their network. Even when a patient seeks emergency treatment at an in-network facility, he or she may—through no fault of his or her own—be treated by an out-of-network physician. Further, insurers often fail to keep their directories up to date, and patients and even doctors themselves don't realize the provider is no longer in-network until the bill arrives.

Why should emergency physicians and specialists want to support legislation that may limit reimbursements and pay?

Physicians, especially emergency care doctors and specialists, are genuinely concerned about an increasing cost shift by insurers onto patients. They feel strongly that their patients should be adequately covered and held financially harmless for unexpected out-of-network care where they have no choice. They want to take the patient out of the middle and deal directly with the insurer. Reimbursement by the insurer should be adequate, and the physician community feels strongly that establishing benchmarks to a percentile of FAIR Health, an independent and CMS recognized database, would be the best way to fairly pay for quality care, even though reimbursement in most cases would be below the cost of providing the service.

How could a repeal of the Affordable Care Act (ACA) affect this issue?

Emergency department physicians are required by the EMTALA (the Emergency Medical Treatment and Labor Act)—and by their conscience—to treat all patients, regardless of their ability to pay. This is an unfunded mandate, and the costs of providing such care can be tremendous. This means that insurers have a default network of providers ready to care for their patients, whether they contract with them or not. Emergency providers and departments are already financially strained with this mandate but have had some relief through private insurance.

If the ACA is repealed, there is an excellent chance it will result in millions more without insurance straining emergency departments and physicians further. Additionally, the ACA extended the life of the Medicare program by 10 years. Medicare already pays exceptionally low rates that don't fully cover the cost of care. Without a replacement plan, repeal risks creating an immediate financial crisis for Medicare. Couple this with a significant spike in the uninsured, and you have an already-strained emergency care healthcare system tipping over the brink. Nothing less than access to care is at risk—especially for rural America.

What kind of movement is there to tackle this on a national level through Congress?

There is no real national movement at this time, though there has been some talk of addressing this issue with [Employee Retirement Income Security Act] plans. At the moment, this remains a states' rights issue because of the inability of insurers to sell private health insurance across state lines.

President Trump has mentioned bringing down the barriers to this. If and when this occurs, there will be significant interest in dealing with this issue at a national level through Congress.