Physicians File Suit to Prevent Washington State Plan that Classifies more than 700 diagnoses as “non-emergent” for Medicaid Patients

Emergency physicians in Washington State today filed suit in the Superior Court of Washington for Thurston County against a state plan that would limit payment for Medicaid visits to three "non-emergency" visits to emergency departments each year and classify more than 700 diagnoses as "non-emergent," including chest pain, abdominal pain, miscarriage and breathing problems.

The Washington Chapter of the American College of Emergency Physicians said the basis for the suit is multi-factorial and includes:

*The state has not implemented a rule making process that included stakeholder comments; yet the plan is being forced on hospitals and providers with no warning.

*The state has violated requirements that this be a collaborative process as outlined by the legislature.

*The state has violated the requirements that this be a collaborative process as outlined by the legislature.

*The state has misconstrued the ability to bill patients for services.  Federal law prevents physicians from meeting Medicaid requirements for billing patients through EMTALA, and state law blocks hospitals from billing under charity requirements.

*The state is violating the federal Prudent Layperson standard by applying it to managed care patients.

ACEP Sues Washington State over Proposed Medicaid Rules

Proposed List of "Non-Emergency" Diagnoses Includes Those with Symptoms of Serious Medical Conditions

The American College of Emergency Physicians (ACEP) this week urged the Centers for Medicare & Medicaid (CMS) to reject a list of more than 700 diagnoses that Washington State will treat as “non-emergent” for Medicaid patients, effective October 1. The list includes the symptoms of serious medical conditions, including chest pain, shortness of breath, miscarriage and abdominal pain. 

The state’s plan will limit Medicaid patients to three non-emergency visits to the emergency department each year, putting the most vulnerable members of society — including children — at risk of serious harm. Physicians in the state have offered to work with state officials to come up with a list of truly non-emergent conditions. 

“The list of conditions was generated solely by state Medicaid office over the objections of physician and hospital task force representatives,” said Dr. Sandra Schneider, president of ACEP. “The use of discharge diagnoses instead of presenting symptoms/conditions is a clear violation of the prudent lay person standard required for Medicaid managed care organizations. With Washington State having close to 60 percent of its Medicaid population enrolled in managed care, how will the state comply with the law? Also, what implications does this have for the millions of people who will be added as Medicaid beneficiaries as part of health care reform?” 

Specifically, ACEP asked CMS to ensure that the Washington’s State Plan Amendment:

• Requires the state to create a notification system or website so providers will know that an individual has reached his/her third annual “non-emergent” visit,
• Requires the state to ensure that patients who reach this status have access to viable primary care services before imposing this policy, and
• Ensures the state does not apply this policy to managed care patients in violation of federal law.

“The symptoms of many of these medical conditions indicate life-threatening emergencies, and people with these symptoms should seek emergency care,” said Stephen Anderson, MD, president of Washington ACEP. “Not doing so could lead to severe illness, disability, and even death. Including conditions such as congestive heart failure, kidney stones, miscarriage, chest pain, and asthma is outrageous and dangerous.” 

The prudent layperson standard requires health plans to cover visits to emergency departments based on an average person‘s belief that he or she may be suffering a medical emergency due to the symptoms he or she is experiencing, not a final diagnosis. It is designed to protect patients who experience the symptoms of a medical emergency but who, after a medical examination and testing by a trained professional, are diagnosed with an acute care or non-emergent medical condition. 

“We understand the financial stress that states are under and we support efforts at the state and national level to link Medicaid beneficiaries to primary care practitioners, but those resources have to be available and accessible,” said Dr. Schneider. 

Dr. Schneider also said that hospital emergency departments are required by law to see patients, but then this state plan is requiring the services not to be paid. 

The American College of Emergency Physicians sent a comment letter to Dr. Donald Berwick, Administrator of the Centers for Medicare and Medicaid Services in response to the draft Accountable Care Organization regulations published Spring 2011.  The ACEP comment letter  lists a series of concerns regarding structure, governance, start-up costs and risk sharing that would make physician-based ACOs inaccessible except to large, well-capitalized multi-specialty practices.  Further, EM practices that cover large geographic areas could possibly trigger an expensive and resource consumptive Federal Trade Commission review as a result of the anti-trust requirements created by the new regulations.  If the final regulation is not changed significantly, the pool of applicants may be quite small.   

The letter in its entirety is posted below:

December 2, 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: CMS-1345-NC Re: Policies and Standards for ACOs Participating with the Medicare Program

Dear Dr. Berwick:

On behalf of the American College of Emergency Physicians’ (ACEP) more than 29,000 members and the Emergency Department Practice Management Association (EDPMA) and its 83 affiliated member organizations, we appreciate the opportunity to submit preliminary comments regarding aspects of policies and standards for Accountable Care Organization (ACO) design and development.

CMS has provided various background documents and public forums over the past few months in preparation for implementing Sec. 3021 and 3022 of PPACA. The vision for primary care physicians and/or hospital-based systems developing ACOs has been well-outlined. However, any description of expectations of the roles for emergency care physicians (and other hospital- based specialists) has not been addressed. We are concerned that once ACOs, medical homes, and expanded coverage are implemented, many policy makers expect emergency visits to all but disappear. While the health reform law will greatly expand insurance coverage starting in 2014, the volume of emergency visits is showing no signs of diminishing. In states like Massachusetts where 97 percent of the population has coverage, emergency department visits continue to grow.

According to the HHS’ Centers for Disease Control and Prevention, emergency visits in 2008 grew to 124 million, the highest level ever reported, and the number of uninsured recently reported by CDC has now reached 50 million, which will undoubtedly add to the volume of already crowded emergency departments. In addition, we predict that when the estimated 16 million individuals are added to Medicaid, the volume of emergency department visits will rise again as the supply and willingness of physicians in the community to add more low paying Medicaid patients to their practices falls short of demand.ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 2

We believe there is a significant, and often overlooked, role for emergency physicians in new delivery system models that will greatly contribute to improvements in quality and coordination of patient care.

We have selected three of the seven questions posed in the November 17th Federal Register notice for response today. We will have more extensive reactions and recommendations when the draft regulation is released for comment.

• What policies or standards should we consider adopting to ensure that groups of solo and small practice providers have the opportunity to actively participate in the Medicare Shared Savings Program and the ACO models tested by CMMI?

We urge CMS, FTC, and OIG to strongly consider concerns on the structure and the need to remove certain legal barriers that have been articulated to CMS by the American Medical Association, American Hospital Association, the Federation, and other provider groups.

With regard to the question above, we believe that practice size is not the only factor that CMS needs to consider in planning shared savings models. Approximately one-third of emergency physicians are hospital employees while the majority are members of practice groups of varying sizes that contract with hospitals to provide 24/7 coverage of their emergency departments.

Fifty percent of Medicare admissions come through the emergency department and the majority of those have time-sensitive conditions. Our members play a critically important role coordinating care at the front end of an episode, i.e. they conduct a medical screening examination and assess the patient’s need to be either admitted, treated and discharged, or kept in observation for several hours before a final disposition decision is made. Approximately 25 percent of US hospitals have dedicated observation units and they are generally directed by emergency physicians. If the patient requires inpatient care, the emergency physician contacts the patient’s treating physician – primary care and/or specialty – who actually admits the patient. If the patient has no physician, the decision goes to the hospitalist or other hospital medical staff member. At the end of the inpatient stay, many patients are discharged into the community or to post acute care settings with little or no coordinated follow up. And, some of these individuals return to the emergency department when their conditions worsen and they don’t know where else to go.

This is an area where emergency physicians can improve transitions between sites of care, particularly when a patient comes back to the emergency department and is re-admitted within 30 days of discharge. As electronic health records continue to expand to link community-based physicians with the emergency department and other health care providers, emergency physicians will be able to play a more integral and expanded role in care coordination. Payment policies for specialty groups like emergency physicians who have little control over who comes to the emergency department should evolve over time as the ACO infrastructure improves and participating physicians can undertake joint risk sharing.

• The Affordable Care Act requires us to develop patient-centeredness criteria for assessment of ACOs participating in the Medicare Shared Savings Program. What aspects of patient-centeredness are particularly important for us to consider and how should we evaluate them?

ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 3

We believe that collaborative patient education is the most effective tool to improving quality and patient satisfaction. ACEP has long provided public education regarding when an individual should come to the emergency department, based on the now universal ‘prudent lay person standard’ that is based on the individual’s belief that he/she may have a medical emergency. Appropriate use of the emergency department requires much more than communication between the emergency physician and the patient.

It starts with the patient’s primary care provider, who is often the one who tells the patient to go 

directly from home to the emergency department for tests, especially on nights and weekends.

The ACO should provide a framework to engage all the physicians in coordinating the patient’s care and keeping the patient informed about what types of services are actually needed at the most appropriate site for that care. We envision that inclusion of collaborative clinical decisions can reduce the number of diagnostic images and foster greater consideration of alternatives to inpatient care. Patient understanding and satisfaction should improve along with the quality, safety and efficiency. A team approach is especially important for Medicare patients with chronic conditions.

Again, real time exchange between providers will require extensive investments in health information technology (IT) infrastructure to facilitate coordination using EHRs and other technology. We urge CMS to reassess the EHR incentive program as policies and standards continue to be established and the current state of health IT adoption and functionality evolves. At the same time, HCAHPS and/or other instruments can be refined to measure patient understanding and satisfaction with their overall care.

We also note that emphasis on physicians providing more extensive education, coordination, and collaboration through participation in ACOs may result in higher costs for physician services, while reducing costs of inpatient and post acute care. The current payment silos must be adjusted to recognize overall system savings so physicians are not penalized.

• In order for an ACO to share in savings under the Medicare Shared Savings Program, it must meet a quality performance standard determined by the Secretary. What quality measures should the Secretary use to determine performance in the Shared Savings Program?

The most important aspect of performance measurement for nascent ACOs is to begin with existing measures endorsed by a consensus based entity (e.g., National Quality Forum) and work with consensus groups and private payers to further standardize measures and metrics. Most physicians and other providers are responding to myriad “quality” measures, and new, ACO-specific measures make no sense at this point.

The majority of physician groups are now participating in PQRI/PQRS including emergency physicians who were early adopters, so PQRI/PQRS measures are the best source of measures for the foreseeable future. As CMS and ACOs glean experience with these new delivery models, more outcome measures should be added, while some of the more process- oriented measures should be retired.

We also recommend that as the experience is gained, measures that reduce emergency department overcrowding be considered, as well as measures encouraging communication

ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 4

between hospital physicians and primary care physicians and coordination of emergency department transitions so that a loop of continuous care is created to diminish morbidity and mortality at critical transition points.

We look forward to working with CMS and other physician and hospital groups to share research and clinical guidelines that can be integrated into larger bundles of care. If you have any questions about our comments, please contact Barbara Tomar, ACEP’s Federal Affairs Director at (202) 728-0610, ext. 3017.

Sincerely,

Sandra H. Schneider, MD, FACEP Randy Pilgrim, MD, FACEP President, ACEP Chairman, Board of Directors, EDPMA

American College of Emergency Physicians Announces Leadership Nominations

Today the Board of Directors of the American College of Emergency Physicians released the slate of candidates seeking elected leadership positions in 2012.

President-elect

Dr. Alexander Rosenau

Dr. Andrew Sama

Dr. Robert Solomon

Council Speaker

Dr. Marco Coppola

Council Vice Speaker

Dr. James Cusick

Dr. Kevin Klauer

Dr. William Meeks

Board of Directors

Dr. Michael Gerardi (Incumbent)

Dr. Hans House

Dr. William Jaquis

Dr. David John

Dr. Mark Mackey

Dr. David Mendelson

Dr. John Rogers

Elections will be held during the annual Council Meeting in San Francisco in October. 

President Obama Launches Medical Malpractice Reform Proposal

President Obama’s budget, discussed at a press conference yesterday, launches a new presidential focus on professional liability laws as they apply to medicine.   He intends to revamp state medical malpractice laws and curb the practice of so-called “defensive medicine.”  The budget specifically calls for $250 million in Justice Department grants to help states rewrite malpractice laws that are consistent with the recommendations made by the bipartisan debt reduction commission last year.  Health and Human Services Secretary Kathleen Sebelius told the Senate Finance Committee yesterday that her agency would advise the Justice Department on grant awards. 

The president’s proposals for professional liability reform include:

• Establishing health courts to deal with medical liability cases.  Health courts would use specially trained judges instead of juries to decide medical malpractice cases.  Awards would be made according to a set schedule.
• Creating a “safe harbor” for physicians who adhere to guidelines for best clinical practices. 
• Creating some protections for physicians who demonstrate acceptable use of an electronic medical record. 
• Providing protections for hospitals and physicians that employ early apology and compensation for medical errors.
• Changing proportionate share laws such that instead of each defendant being held liable for the entire amount of an award in a malpractice suit, each defendant is liable for a percentage proportionate to the responsibility for the harm.  

NOT covered in the president’s proposal is a cap on jury awards.  President Obama has long said that he would not entertain caps as a solution to the professional liability insurance crisis, but has said that he would entertain other options as outlined in his proposal.

President Obama’s debt reduction commission estimates that implementation of the recommendations could save government programs $17 billion by 2020.  Although the cost of defensive medicine is widely debated, conservative estimates start at around $50 billion per year.  The president’s budget does not include any actual savings from the new proposal.   

The Future of Emergency Medicine Summit

Leaders from the major organizations in emergency medicine are meeting to discuss the needs of emergency patients both now and in the future.  Major areas of discussion include workforce, access to care, the daily practice of emergency medicine, and the value of emergency medicine in the emerging era of healthcare reform, with discussion of emergency medicine's role in the formation of accountable care organizations.

Future of EM Summit 2011

Participants in the conference  include:

James G. Adams, MD, FACEP  (AACEM)

Dennis M. Beck, MD, FACEP  (ACEP)

Howard Blumstein, MD  (AAEM)

Marilyn Bromley, RN  (ACEP)

Michele Byers, CAE  (EMRA)

Steven H. Bowman, MD, FACEP  (CORD)

Thomas Brabson, DO, FACOEP (ACOEP)

Gregory Christiansen, DO  (ACOEP)

Theodore A. Christopher, MD, FACEP  (AACEM)

Tammy Crowley  (ACEP)

Nathan Deal, MD  (EMRA)

Angela F. Gardner, MD, FACEP (ACEP)

Marjorie Geist, RN, PhD, CAE  (ACEP)

John Graykoski, PA-C, MPAS  (SEMPA)

Robert Heard, MBA, CAE  (ACEP)

Cherri D. Hobgood, MD, FACEP  (SAEM)

Michelle Hoppes, RN, MS, AHRMQR, DFASHRM  (ASHRM)

Hans R. House, MD, FACEP (ACEP)

Nicholas J. Jouriles, MD, FACEP (ACEP)

Douglas F. Kupas, MD, FACEP  (SAEM)

Douglas L. McGee, DO, FACEP (CORD)

Robert McCurren, MD, FACEP (EDPMA)

Mark Mitchell, DO, FACOEP (ACOEP)

Dighton Packard, MD, FACEP (EDPMA)

AnnMarie Papa, DNP, RN, CEN, NE-BC, FAEN  (ENA)

Michelle Parker  (SEMPA)

Randy Pilgrim, MD, FACEP (EDPMA)

John J. Rogers, MD, FACEP (ACEP)

Sandra Schneider, MD, FACEP (Chair of Summit, ACEP)

Donald Stader, MD  (EMRA)

Cary J. Stratford, PA-C, DFAAPA  (SEMPA)

Jim Tarrant, CAE  (SAEM)

Harold A. Thomas, MD, FACEP (Observer only)

Jill Walsh, DNP, RN, CEN  (ENA)

Dean Wilkerson, JD, MBA, CAE (ACEP)

Joseph Wood, MD, FACEP  (AAEM)

Led by Dr. Sandra Schneider, ACEP President, the group will produce a document detailing both the discussions and recommendations in the near future.  

Independent Contractor Status At Risk For Emergency Physicians

As Congress tries to complete work for the year, several bills are being considered and funding must be found to offset their costs.  The Senate is considering a menu of funding mechanisms that could be used to pay for the legislation under consideration.   One source of offset funding under consideration is The Fair Playing Field Act of 2010.  Currently, the law allows businesses a safe harbor to treat workers as independent contractors for employment tax purposes if the company has had a reasonable basis for such treatment and has consistently treated such employees as independent contractors by reporting their compensation on Form 1099s.  

As proposed, The Fair Playing Field Act would require the Treasury Secretary to issue regulations or other prospective guidance clarifying the employment status of individuals for federal employment tax purposes.  It specifically allow the Internal Revenue Service the ability to individually question independent contractor status.

How would this impact the delivery of Emergency Care?


If enacted, this provision could have a negative impact on the delivery of emergency care by harming the ability of independent contractor emergency physicians to provide much-needed staffing of emergency departments throughout the country.  Restricting the ability of hospitals to staff their emergency departments using emergency physician independent contractors could have dire results for patients' access to lifesaving emergency care.


ACEP's Message:
Please contact your U.S. Senators and urge them not to attach The Fair Playing Field Act to any other bill during the lame duck period and/or use its provisions as an offset to legislation under consideration.

Thank you for your prompt action.

Questions: Contact Brad Gruehn in the ACEP Washington DC office.

Policies and Standards for ACOs Participating with the Medicare Program

In response to pre-ACO regulations, CMS posed questions to physicians concerning their possible participation in soon to be developed accountable care organizations. ACOs are a product of the new Patient Protection and Affordable Care Act (PPPAC) and will serve a minimum of 5000 Medicare beneficiaries.  It is assumed that most ACOs will enroll private patients as well as Medicare once they are up and running.  ACEP's comments to CMS Administrator Donald Berwick regarding aspects of policies and standards for ACOs' design and development include the need to recognize the potential role that emergency physicians can play in coordinating care across sites of service.


Below is the text of the letter sent to Dr. Berwick by ACEP President Dr. Sandra Schneider and EDPMA Board Chairman Dr. Randy Pilgrim.
                                       

December 2, 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:  CMS-1345-NC

Re: Policies and Standards for ACOs Participating with the Medicare Program

Dear Dr. Berwick:

On behalf of the American College of Emergency Physicians’ (ACEP) more than 29,000 members and the Emergency Department Practice Management Association (EDPMA) and its 83 affiliated member organizations, we appreciate the opportunity to submit preliminary comments regarding aspects of policies and standards for Accountable Care Organization (ACO) design and development. 

CMS has provided various background documents and public forums over the past few months in preparation for implementing Sec. 3021 and 3022 of PPACA.  The vision for primary care physicians and/or hospital-based systems developing ACOs has been well-outlined.  However, any description of expectations of the roles for emergency care physicians (and other hospital-based specialists) has not been addressed.  We are concerned that once ACOs, medical homes, and expanded coverage are implemented, many policy makers expect emergency visits to all but disappear.  While the health reform law will greatly expand insurance coverage starting in 2014, the volume of emergency visits is showing no signs of diminishing.  In states like Massachusetts where 97 percent of the population has coverage, emergency department visits continue to grow. 

According to the HHS’ Centers for Disease Control and Prevention, emergency visits in 2008 grew to 124 million, the highest level ever reported, and the number of uninsured recently reported by CDC has now reached 50 million, which will undoubtedly add to the volume of already crowded emergency departments.  In addition, we predict that when the estimated 16 million individuals are added to Medicaid, the volume of emergency department visits will rise again as the supply and willingness of physicians in the community to add more low paying Medicaid patients to their practices falls short of demand.  

We believe there is a significant, and often overlooked, role for emergency physicians in new delivery system models that will greatly contribute to improvements in quality and coordination of patient care. 

We have selected three of the seven questions posed in the November 17^th Federal Register notice for response today.  We will have more extensive reactions and recommendations when the draft regulation is released for comment.  

•       What policies or standards should we consider adopting to ensure that groups of solo and small practice providers have the opportunity to actively participate in the Medicare Shared Savings Program and the ACO models tested by CMMI?

We urge CMS, FTC, and OIG to strongly consider concerns on the structure and the need to remove certain legal barriers that have been articulated to CMS by the American Medical Association, American Hospital Association, the Federation, and other provider groups.

With regard to the question above, we believe that practice size is not the only factor that CMS needs to consider in planning shared savings models.  Approximately one-third of emergency physicians are hospital employees while the majority are members of practice groups of varying sizes that contract with hospitals to provide 24/7 coverage of their emergency departments.  

Fifty percent of Medicare admissions come through the emergency department and the majority of those have time-sensitive conditions.  Our members play a critically important role coordinating care at the front end of an episode, i.e.  they conduct a medical screening examination and assess the patient’s need to be either admitted, treated and discharged, or kept in observation for several hours before a final disposition decision is made.  Approximately 25 percent of US hospitals have dedicated observation units and they are generally directed by emergency physicians.   If the patient requires inpatient care, the emergency physician contacts the patient’s treating physician – primary care and/or specialty – who actually admits the patient.  If the patient has no physician, the decision goes to the hospitalist or other hospital medical staff member.  At the end of the inpatient stay, many patients are discharged into the community or to post acute care settings with little or no coordinated follow up.  And, some of these individuals return to the emergency department when their conditions worsen and they don’t know where else to go. 

This is an area where emergency physicians can improve transitions between sites of care, particularly when a patient comes back to the emergency department and is re-admitted within 30 days of discharge.  As electronic health records continue to expand to link community-based physicians with the emergency department and other health care providers, emergency physicians will be able to play a more  integral and expanded role in care coordination.  Payment policies for specialty groups like emergency physicians who have little control over who comes to the emergency department should evolve over time as the ACO infrastructure improves and  participating physicians can undertake joint risk sharing.   

•       The Affordable Care Act requires us to develop patient-centeredness criteria for assessment of ACOs participating in the Medicare Shared Savings Program. What aspects of patient-centeredness are particularly important for us to consider and how should we evaluate them?

We believe that collaborative patient education is the most effective tool to improving quality and patient satisfaction.  ACEP has long provided public education regarding when an individual should come to the emergency department, based on the now universal ‘prudent lay person standard’ that is based on the individual’s belief that he/she may have a medical emergency.  Appropriate use of the emergency department requires much more than communication between the emergency physician and the patient.   It starts with the patient’s primary care provider, who is often the one who tells the patient to go directly from home to the emergency department for tests, especially on nights and weekends. 

The ACO should provide a framework to engage all the physicians in coordinating the patient’s care and keeping the patient informed about what types of services are actually needed at the most appropriate site for that care.  We envision that inclusion of collaborative clinical decisions can reduce the number of diagnostic images and foster greater consideration of alternatives to inpatient care.  Patient understanding and satisfaction should improve along with the quality, safety and efficiency.  A team approach is especially important for Medicare patients with chronic conditions.

Again, real time exchange between providers will require extensive investments in health information technology (IT) infrastructure to facilitate coordination using EHRs and other technology. We urge CMS to reassess the EHR incentive program as policies and standards continue to be established and the current state of health IT adoption and functionality evolves.  At the same time, HCAHPS and/or other instruments can be refined to measure patient understanding and satisfaction with their overall care.

We also note that emphasis on physicians providing more extensive education, coordination, and collaboration through participation in ACOs may result in higher costs for physician services, while reducing costs of inpatient and post acute care.  The current payment silos must be adjusted to recognize overall system savings so physicians are not penalized. 

•       In order for an ACO to share in savings under the Medicare Shared Savings Program, it must meet a quality performance standard determined by the Secretary. What quality measures should the Secretary use to determine performance in the Shared Savings Program?

The most important aspect of performance measurement for nascent ACOs is to begin with existing measures endorsed by a consensus based entity (e.g., National Quality Forum) and work with consensus groups and private payers to further standardize measures and metrics.   Most physicians and other providers are responding to myriad “quality” measures, and new, ACO-specific measures make no sense at this point. 

The majority of physician groups are now participating in PQRI/PQRS including emergency physicians who were early adopters, so PQRI/PQRS measures are the best source of measures for the foreseeable future.  As CMS and ACOs glean experience with these new delivery models, more outcome measures should be added, while some of the more process-oriented measures should be retired.  

We also recommend that as the experience is gained, measures that reduce emergency department overcrowding be considered, as well as measures encouraging communication between hospital physicians and primary care physicians and coordination of emergency department transitions so that a loop of continuous care is created to diminish morbidity and mortality at critical transition points.

We look forward to working with CMS and other physician and hospital groups to share research and clinical guidelines that can be integrated into larger bundles of care. If you have any questions about our comments, please contact Barbara Tomar, ACEP’s Federal Affairs Director at (202) 728-0610, ext. 3017.

Sincerely,                                                                                                                                                          

Sandra H. Schneider, MD, FACEP                                     Randy Pilgrim, MD

President, ACEP                                                             Chairman, Board of Directors, EDPMA

Voters Favor Health Care Reform Bill, Polls Show

Steven Thomma reports this morning in the Miami Herald that voters actually favor the new healthcare reform law, as determined by a new McClatchy Newspapers-Marist poll.  The post-election survey reportedly states that 51 percent of registered voters want to keep the law or change it to do more, while 44 percent want to repeal it or change it to do less.  Despite the Republican rhetoric that the recent mid-term elections represent a mandate to repeal the controversial law, many Americans actually favor many aspects of the bill. 

Not surprisingly, voters favor aspects of the bill that benefit patients.  The requirement that insurance companies provide coverage to people with pre-existing conditions is favored by 59% of respondents, with 36% opposed.  Allowing children to remain on a parent’s insurance policy until the age of 26 is also popular, with 68% of respondents favoring and 29% against.  Additionally, closing the “doughnut hole” in Medicare prescription drug coverage was favored by 57% of the respondents, compared to 32% against. 

The results of the poll portend a more complex and challenging political landscape ahead for the Republicans in Congress than perhaps anticipated.  It will be difficult to repeal bill in its entirety when significant portions are so popular.  Instead, this may represent the opportunity to create a truly bipartisan solution to America’s healthcare system problems.   

It's official. EMS is now a subspecialty of Emergency Medicine

The American Board of Medical Specialties (ABMS) approved the American Board of Emergency Medicine (ABEM)  application for subspecialty certification in Emergency Medical Services (EMS) yesterday at their meeting in Chicago.  This effort was led by Dr. Debra Perina, Immediate Past President of ABEM.

Unofficial reports are that the first exam will be scheduled for 2013.


The American College of Emergency Physicians kicks off it's Scientific Assembly tomorrow in Las Vegas, Nevada.  As part of the week-long conference members of the ABEM Board will attend the EMS committee meeting on Tuesday, September 28th in the Las Vegas Convention Center.


It is especially fitting that EMS gain recognition as a subspecialty on the 50-year anniversary of the publication of the first scientific research in cardiopulmonary resuscitation (CPR), a basic skill for all involved in pre-hospital care.

Emergency visits up 23% according to the CDC

A new report from the Centers for Disease Control and Prevention once again debunks the myth that emergency departments are crowded with non-urgent patients, a finding noted by the American College of Emergency Physicians (ACEP). 

The percentage of non-urgent patients dropped to only 7.9 percent in 2007 [from 12.1 percent in 2006].  The report also makes the excellent point that non-urgent does not imply unnecessary.  As ACEP has said repeatedly, our patients are in the ER because that’s where they need to be.

There were approximately 222 visits to U.S. emergency departments every minute in 2007 (http://bit.ly/9B5kHJ) and the number of visits increased by 23 percent between 1997 and 2007, according to the report.

Preliminary data for 2008 indicate that emergency visits will increase to a record high of more than 123 million (http://bit.ly/ak6oRx).

Babies under 12 months old had the highest visit rate at 88.5 visits per 100 infants.  The second highest visit rate was by adults age 75 and older, with 62 visits per 100 people. 

Approximately one-quarter of all visits were by patients insured by either Medicaid or the State Children’s Health Insurance Program.  The uninsured represented about 15 percent of all visits.

The report, “National Hospital Ambulatory Medical Care Survey: 2007 Emergency Department Summary” offers far more detail than the data brief released by the Centers for Disease Control and Prevention (CDC) in May. The U.S. Department of Health and Human Services, of which the CDC is a part, has indicated that this is the last fully detailed report of its kind to be issued about emergency department visits.

I am urging the CDC to reconsider:

“It is essential to know what is happening in our emergency departments as we implement health care reform.  This report is rich in data about who our patients are, how old they are and why they are seeking care in the ER.  From a planning perspective, this information is invaluable.  It would be a mistake for the CDC to discontinue tracking what is happening on the front lines of healthcare, the nation’s emergency departments.”

The report also notes that only 0.1 percent of patients die in the emergency department.

The report says the main issue contributing to overcrowding has been delays in moving the sickest patients to inpatient beds.  Admitted patients have often been boarded in the emergency departments or hospital hallways for hours to days, resulting in overcrowding and diversion of incoming ambulances to other hospitals.

Congressional Update

Senate Approves Additional Medicaid Funding for States


The House will return next week to vote on the measure.

The Senate on Thursday passed a $26.1 billion state-aid package that the House is poised to consider next week, when it will return briefly from its August recess. The bill would provide $10 billion to save education jobs and six more months of increased federal Medicaid payments to states at a cost of $16.1 billion. The vote was 61-39 with Maine Republican Senators Olympia Snowe and Susan Collins joining all 59 members of the Senate Democratic Caucus. The Congressional Budget Office (CBO) says the bill is budget-neutral over 10 years and will reduce future deficits by $1.37 billion. Offsets include the end to a tax loophole for multinational corporations and reductions starting in 2014 in extra food stamp benefits provided under the 2009 economic stimulus law.

On Thursday House Speaker Nancy Pelosi (D-CA) announced on Twitter that she would call House members back to Washington, D.C. next week to take up the measure. The House adjourned for the August recess last Friday and the chamber was not scheduled to return until September 14.

Senate Schedule in the Fall

The Senate now heads home for their August recess with Senate Democrats working on scheduling post-Labor Day votes that will make up the first portion of what appears a daunting fall agenda.

Even before the recess, the Senate's focus was shifting to Democratic plans to push what could be a massive tax policy package extending trillions of dollars in tax cuts passed in 2001 and 2003. Senate Finance Chairman Max Baucus (D-MT) wants to mark up the package after Labor Day and Democratic leadership aides said Senate Majority Leader Reid (D-NV) hopes to bring it to the floor before October.

In the face of the November midterm elections, that effort could be politically explosive. The bill could pit traditional Republican backing for tax reduction against pressure for deficit reduction that many GOP members are pushing on the campaign trail. A small-business jobs bill is expected to be the first measure on the Senate floor after Labor Day.

With time running short for legislating this year, Sen. Reid on Thursday announced the Senate will convene for a lame-duck session after the election. The Senate will be in session the week of Nov. 15, then off the following week for Thanksgiving. The chamber will return Nov. 29 and remain for an undetermined period. The Senate is scheduled to be in session from Sept. 13 to Oct. 8, then out until Nov. 12 in preparation for the elections.

ACEP sends letter to Dr. Berwick, CMS

ACEP sent a letter to newly appointed CMS administrator Dr. Donald Berwick this week.  The letter outlines emergency physician concerns with several health care reform law implementation issues and highlights specific provisions of the new law that affect the delivery of emergency care.  The letter is as presented here:

 July 19, 2010

Donald M. Berwick, MD, MPP, FRCP 

Administrator Centers for Medicare & Medicaid Services

200 Independence Avenue, SW 

Washington, DC 20201

Dear Dr. Berwick:

On behalf of the American College of Emergency Physicians (ACEP) and our 28,000 members, I want to congratulate you on your appointment as Administrator of the Centers for Medicare & Medicaid Services (CMS). We look forward to working with you and your staff during this critical time that the new health care reform law regulations are being promulgated and we believe your clinical and health care policy experience give you a unique perspective on how these rules may impact the delivery of health care in America.

As an elected member of the Institute of Medicine (IOM), we're sure you are familiar with the 2006 IOM reports on the "Future of Emergency Care in the United States Health System," which detailed the challenges and concerns this nation faces in maintaining access to emergency medical care. As articulated in the IOM reports, America's emergency medical system as a whole is overburdened, underfunded and highly fragmented. As a result, ambulances are diverted from emergency departments once every minute on average and patients in many areas may wait hours, or even days, for hospital beds causing admitted patients to be boarded in the emergency department and redirecting precious emergency care resources away from incoming patients.

Emergency departments in this country handle more than 120 million patient visits per year and utilization of our services continues to steadily increase. As we have learned from observing the evolution of the Massachusetts medical care system, and its near universal coverage, emergency department utilization has actually increased in that state, rather than decreased, as many projected. We believe this is the result of a number of factors, including the federal mandate applied by the Emergency Medical Treatment and Labor Act (EMTALA), the lack of internal medicine physicians and general practitioners in the state, injuries and illnesses that occur after normal physician office business hours, and the fact that emergency departments continue to be the sole source of access to the health care system for many in that state, despite their insurance status. The one true lesson from Massachusetts is that coverage does not equal access.

Frankly, we are concerned that the combination of health care law reforms and the general delay in producing more primary care physicians could potentially overwhelm America's emergency departments, many of which currently operate at or above capacity on a regular basis. In particular, we would like to focus your attention of the followingprovisions of the "Patient Protection and Affordable Care Act" and the "Health Care and Education Reconciliation Act:"

Patient Protections (§10101) - This measure extends the "prudent layperson standard" to group health plans, or issuers of group or individual health plans, which offer hospital emergency department services, as well as eliminates the need for prior authorization and provides parity in coverage and patient co-payments for in- and out-of-network providers. We urge you to consider expanding these important patient protections to grandfathered health plans as well.

Hospital Value-Based Purchasing Program (§3001) – As this program advances, we want to ensure measures that will improve emergency department efficiencies are considered an essential component of this plan.

Improvements to PQRI System (§3002) – Please assure emergency physician measures continue to be available in the PQRI program and that these measures promote integration of clinical reporting using electronic health records, as well as demonstrate both meaningful use of electronic health records and quality of care furnished to the patient.

Value-Based Payment Modifier (Physician Fee Schedule) (§3007) – As CMS develops its own transparent episode grouper software; it must account for the unique delivery aspects of emergency services. In addition, it is critical that future risk-based measures developed by HHS ensure emergency physician measures are applied only to services that are within the control of the physicians.

Medicare Shared Savings Program (§3022) and Payment Bundling (§3023) – We urge you to recognize the important role emergency physicians play in providing the full continuum of care to Medicare beneficiaries. There must be commensurate recognition of these distinctive services as an integral part of any Accountable Care Organization (ACO) and through the coordination of bundled payments for an episode of care.

Distribution of Additional Residency Positions (§5503) – Due to the statutory obligation to provide at least 75% of the redistributed residency positions to primary care or general surgery, it is even more imperative that CMS provide as many of the remaining slots to emergency medicine residency programs. The expected immediate increase in emergency department visits demands that we accelerate the availability of residency-trained emergency physicians in our communities.

National Health Care Workforce Commission (§5101) – The growing disparity between the increasing number of emergency department visits each year and the decreasing number of emergency departments is alarming and of great concern to us and our constituents. We strongly encourage you to highlight the education and training needs of emergency medicine as the commission proceeds.

Patient-Centered Outcomes Research (§6301) – Due to the integral role of emergency physicians in providing all types of care for elderly patients, we ask that the emergency medicine perspective be represented in the identification of research priorities and the establishment and implementation of the research project agenda.

Extension of Medical Malpractice Coverage (§10608) – The law extends Federal Tort Claims Act liability protections to an officer, governing board member, employee or contactor of a free clinic. This is an important recognition of the unique role of those individuals who provide medical services without requiring compensation from the patient. As you know, the federal mandate of the Emergency Medical Treatment and Labor Act (EMTALA) requires emergency department physicians and many on-call specialists to provide similar, and in fact more comprehensive, services as those provided at free clinics with a substantial burden of uncompensated care. We urge you to review the unique requirements on physicians who provide EMTALA- related services and consider how the Federal Tort Claims Act may be applied to ensure the availability of these emergency and on-call physicians.

In addition, we are writing to request your assistance with another matter of significant importance to the coordination and delivery of high-quality medical care in America's emergency departments. Senator Debbie Stabenow (D-MI) has requested a formal response from HHS on her proposal to create a CMS working group that would be responsible for reviewing issues affecting access to emergency care and for developing standards and measures to reduce emergency department boarding and crowding, as well as ambulance diversion. Both of these issues can have dire consequences for patient care and we urge you to develop your response to her request as soon as possible.

Thank you for your consideration of these important issues. As you know, enactment of health care reform was only the first step. We look forward to working with you to ensure the implementation of these laws help our patients receive the best medical care possible, including maintaining access to lifesaving emergency medical services that are so vital to our communities.

Sincerely,

Angela Gardner, MD, FACEP

President