Emergency Department Practice Management Association Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, April 16 -- Bing Pao, board chair of the Emergency Department Practice Management Association, has issued a public comment on the Centers for Medicare and Medicaid Services' proposed rule entitled "Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly". The comment was written on April 6, 2020, and posted on April 13, 2020:

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The Emergency Department Practice Management Association (EDPMA) is one of the nation's largest professional physician trade associations focused on the delivery of high-quality, cost-effective care in the emergency department.

EDPMA's membership includes emergency medicine physician groups, as well as billing, coding, and other professional support organizations that assist healthcare providers in our nation's emergency departments.

Together, EDPMA's members deliver (or directly support) health care for about half of the 141 million patients that visit U.S. emergency departments each year.

We work collectively and collaboratively to deliver essential healthcare services, often unmet elsewhere, to an underserved patient population who often has nowhere else to turn.

We appreciate the opportunity to comment on CMS' Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly proposed rule.

In the unprecedented circumstance in which we find ourselves responding to the COVID-19 public health emergency, we ask that you consider the unique circumstances in which emergency medicine providers find themselves as you look toward finalizing 2021 policies for the Medicare Advantage (MA) program and Part D prescription drug plan program.

Medicare Advantage (MA) Network Adequacy

EDPMA is appreciative of CMS' efforts to strengthen network adequacy in the current proposed rule, but we believe that MA plans must be held to an even higher standard than the current policies require of them. In addition to considering the number of physicians that are available to a given patient population in a given coverage area, it is also important for CMS to ensure that once those patients are cared for by physicians that the appropriate level of coverage is provided so that MA plans are not skirting their coverage responsibilities by having the right "number of physicians" available but providing insufficient levels of coverage once those patients have been cared for.

In particular, we are concerned that MA plans are not abiding by the Prudent Layperson Standard for emergency department visits. The prudent layperson is an important patient protection that ensures that the patient is covered for situations where a prudent layperson would be concerned that they may be experiencing an emergency. It prevents payers from basing reimbursement on the diagnosis. And it ensures that patients are not discouraged from visiting the emergency department when they are appropriately concerned they are experiencing an emergency. It also ensures that patients are not encouraged to self-diagnose for fear of not being fully reimbursed for the care if it ends up being a false alarm. The standard requires that the patient's presenting symptoms, comorbidities, and other important factors such as age, must be considered BEFORE an emergency claim can be denied or down coded. The medical claim must be reviewed before an emergency claim is denied or down coded.

The federal PLP standard covers Medicare, Medicaid, ERISA and group and individual commercial plans. The Affordable Care Act (ACA) extended this PLP standard to ERISA plans and to all group and individual commercial plans (other than plans grandfathered from the ACA).

We wrote CMS with our concerns that a Medicaid MCO was violating the PLP by denying and down coding based on diagnosis. In Seema Verma's March 15, 2018, response letter, she wrote:

Whenever a payer (whether an MCO or a State) denies coverage or modifies a claim for payment, the determination of whether the prudent layperson standard has been met must be based on all pertinent documentation, must be focused on the presenting symptoms (and not on the final diagnosis), and must make take into account that the decision to seek emergency services was made by a prudent layperson (rather than a medical professional).

This State Medicaid Director letter is still in effect and can be found at: http://www.medicaid.gov/federal-policy-guidance/federal-policy-guidance.html" (emphasis added to point out that both denials and down coding based on diagnosis violates the federal PLP). (3/15/18 CMS Response Letter)

As we understand it, this violation of PLP is now beginning to appear in the MA market.

Reimbursement for all emergency claims that were unlawfully denied or down coded prior to medical record review should be paid in full immediately. Now especially, as emergency physicians are risking their lives every day combatting the coronavirus pandemic, down coding or denying their reimbursement and leaving them with less resources to provide care is not only unlawful, it is dangerous and frankly immoral. Therefore, EDPMA urges CMS to prohibit MA plans from prospective downcoding and denials of any emergency claims. We believe the Agency should address these MA plan practices in its rulemaking to ensure that not only do enrollees have access to adequate networks but that MA plans are administering the benefits according to statute and regulation.

Sincerely,

Sincerely,

Bing Pao, MD, FACEP

Chair of the Board, EDPMA

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0010-0002

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