WASHINGTON, D.C.—The U.S. District Court for the District of Columbia has ruled on a motion filed by the American College of Emergency Physicians (ACEP) in regard to its lawsuit against the federal government (ACEP v. Thomas E. Price, MD) that argued a regulation under the Affordable Care Act (ACA) violated Congressional intent.

"This is a clear step in the right direction," said Rebecca Parker, MD, president of ACEP. "It does not invalidate the federal regulation, but it supports ACEP's contention that the federal agencies ignored significant concerns raised by public commenters regarding a lack of transparency by health insurance companies in determining payments. Congress in the ACA required that reasonable amounts be paid for emergency care, based on an objective standard, when patients receive it outside of a qualified health plan's network."

The court remanded the case back to the U.S. Departments of Health & Human Services, Treasury, and Labor for further explanation, saying that comments during the regulation's development had been submitted to the Centers for Medicare & Medicaid Services (CMS) expressing concerns "for example, that the methods it used to set payments were not transparent and could be manipulated by insurers…The Departments all but ignored these comments and proposals."

ACEP originally filed suit in May 2016 against then-Secretary Burwell after the federal government did not address the concerns raised to CMS about out-of-network emergency physician payments, which the agency set at the "greatest of three" options: (1) Medicare (which often does not even cover providers' costs) (2) In-network rates (set without the provider's input) (3) "Usual and customary" (as determined by the health plans). As written, this regulation opened the door for insurers to use non-transparent ("black box") methods to determine these "usual and customary" payment amounts without providing any means to externally verify the data.

ACEP has called for transparency by insurance companies and use of independent databases, such as Fair Health, for calculating payments for out-of-network emergency care. The Fair Health claims database was developed after United Healthcare was successfully sued by the State of New York for fraudulently calculating and significantly underpaying doctors for out-of-network medical services (using its own Ingenix database).