Dr. Langer testifies before the Assembly Financial Institutions Committee on A-2039

  • 6 February 2018
  • Author: Lauren Myers
  • Number of views: 3600


Emergency medicine physicians are the physicians on the front line in the emergency department.  We are the “ER docs.”  Hospital EDs also are required to provide access to “on-call” specialty physicians, who as part of their privileges at the hospital are scheduled to provide on-call services, when necessary and requested by the patient presenting in the ED.  The most common specialties I might call in, for example, on any given shift include cardiology, general surgery, and orthopedic surgeons. 

As an emergency medicine physician, I might be a hospital employee or an employee of a practice group contracted by the hospital to staff its ED. There are two large national groups that provide these ED staffing services in New Jersey.  I have been employed in both capacities in my career and, regardless of my employment; I am providing care to patients without any knowledge of their insurance status. 


An insurance company will receive a claim generated from an ED visit that will include at a minimum a fee from the hospital/facility and the ER physician practice. And, if you were seen by an on-call specialty physician, that would be a separate claim, as well.   


ER docs operate under the Federal Emergency Medical Treatment and Labor Act (EMTALA) and professional ethics to ensure that patients who present to the ER will be evaluated, stabilized, and treated regardless of the patient’s insured status, ability to pay or the health insurer’s willingness to pay.  Unlike the majority of my private practice physician colleagues, insurance is thankfully not something I ever have to think about nor do my patients in order to be seen in an ED.  ER docs are not even allowed to discuss insurance with a patient and EDs are not allowed to post or list the health plan networks in which we participate under EMTALA.  Anything that puts a barrier or perception of a barrier to a patient’s access to emergency care is a violation of EMTALA.


  • Hospital employed emergency medicine physicians working in the ED are 100% in network with the same plans as the hospital.
  • Contracted emergency medicine physicians staffing EDs negotiate their own network contracts, and are currently participating with all major payers in the state and are in network with the same plans as their hospitals.
  • In 2017 one national contracted emergency medicine physician group staffing 24 NJ EDs did not balance bill a single patient in New Jersey.
  • And, just as point of information, in states where patients can be billed for out of network emergency care, it occurred less than 5% of the time and for emergency medicine physicians reflected an amount, on average, that was less than $250.


Patients ONLY pay their in-network obligation:  Patients insured with a state regulated plan cannot be balanced billed for out of network emergency care and are only responsible for their in-network obligations (copays/deductible/coinsurance), which as we all know can be a surprise to a patient who doesn’t fully understand their health benefits.

Insurer pays the Emergency OON Provider:  Because there is no contract with an out of network provider, insurers pay providers based upon the patient’s out of network benefit, which is an unknown to the provider, the patient and can be anything the insurer determines.   For emergency out of network providers the amount the insurer pays is all they will receive for their services no matter what.

NJDOBI’s Dispute Resolution Caps Provider payments:  If the provider/insurer after negotiations cannot agree on payment, NJDOBI dispute resolution is available to them.  As of November 2016 caps insurer’s payments to providers at up to 90th percentile of Fair Health– the same independent claims database used in New York – and providers must accept the insurer’s payment as payment in full for out of network emergency services.

Evolution of Insurance

Three things have changed since New Jersey’s balance billing ban was put in place:  (1) 70% of New Jersey’s insured lives are now insured though employer-sponsored/self-insured plans; (2) high deductible plans have become standard offerings resulting in patients paying out of pocket and being “surprised” at what they have to pay even for in-network obligations; and (3) health plans have significantly reduced the amount they are paying for out of network services and are not being transparent in how they calculate payments to providers leaving patients with the balance of the bill for even non-emergency care.   

Employer-Sponsored/Self-funded Plans

       The Affordable Care Act has also attempted to protect patients in self-funded plans from this “insurance gap” for out of network emergency care.  To shrink the gap, the ACA decided to regulate what the plans have to pay the provider, not regulate what the provider charges.  Plans must pay out of network emergency care pursuant to the “Greatest of Three” rule: (1) Usual, Customary and Reasonable Amount, (2) Medicare, or (3) the Median Negotiated In-Network Rate.  However, the Greatest of Three lacks transparency by not defining the typically highest of the three:  Usual, Customary and Reasonable Amount and patients still have no idea what the plan will pay the provider and what their ultimately responsibility will be.


Last week there were many questions about New York’s out of network resolution.  As it relates to emergency medicine, it is important to note that New York recognized the low billing amounts for emergency medicine physicians and explicitly excluded certain common codes for emergency services from being subject to the Independent Dispute Resolution process: CPT codes 99281 - 99285, 99288, 99291 - 99292, 99217 - 99220, 99224 - 99226, and 99234 – 99236.

The NJACEP strongly supports transparency and disclosure and encourages the sponsors to include the same disclosures required by insurers on the employers offering self-funded plans.  This is the only way to ensure that patients with self-funded plans will be able to benefit from the transparency and disclosure provisions of this legislation.

The NJACEP encourages this Committee to recognize the legal opinion provided to you that cites the Supreme Court decision that explicitly decided that states cannot regulate ERISA plans and those plans cannot elect to submit to individual state regulations.

The NJACEP also hopes the Committee considers the use of Fair Health as a true independent claims database.

Thank you for the opportunity to offer testimony to the committee.

Margie Langer, MD, FACEP

President, NJ American College of Emergency Physicians

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