The federal government clarified emergency services rules under the the Patient Protection and Affordable Care Act (ACA). The government clarified the rules, which were issued in 2015, after the American College of Emergency Physicians (ACEP) challenged them. Among other things, ACEP argued that the federal government did not adequately respond to their public comments on the regulations. On August 31, 2017, the court sent the matter back to the government to respond to the ACEP’s comments.
Emergency Services Rules
Under the 2015 final regulations a plan or policy satisfies the copayment and coinsurance limitations when it provides benefits for out-of-network emergency services in an amount equal to the greatest of:
(1) The amount negotiated with in-network providers for the emergency service furnished;
(2) The amount calculated using the same method the plan generally uses to determine payments for out-of-network services (such as the usual, customary, and reasonable charges) but substituting the in-network cost-sharing provisions for the out-of-network cost sharing provisions; or
(3) The amount paid under Medicare for the emergency service.
Each of these three amounts is calculated excluding any in-network copayment or coinsurance imposed on the patient. This is sometimes referred to as the “Greatest of Three” or the “GOT” regulation because it sets a floor on the amount nongrandfathered group health plans and health insurance issuers offering nongrandfathered group or individual health insurance coverage are required to pay for out-of-network emergency services under this provision at the greatest of the three listed amounts.
In its clarification, the government stated that the regulations provide a reasonable and transparent method for determining appropriate payments by nongrandfathered group health plans and health insurance issuers offering nongrandfathered group or individual health insurance coverage for out-of-network emergency services. In addition, the Departments maintain that ACEP and other commentators did not provide adequate information to support their assertion that the methods used for determining the minimum payment for out-of-network emergency services under the GOT regulation are not sufficiently transparent or reasonable.