On behalf of the physician, PA, resident, and medical student members of the Medical Society of Virginia, I am reaching out to express the MSV’s support for the Notice of Intent to Amend Virginia’s State Plan for Medical Assistance, which eliminates down-coding of emergency room fees for what were previously considered “avoidable” claims.

The MSV, alongside our colleagues at the Virginia College of Emergency Physicians (VACEP) and the Virginia Hospital and Healthcare Association (VHHA), have previously expressed concerns with the practice of down-coding. Physicians, as mandated by the Emergency Medical Treatment and Active Labor Act (EMTALA), must treat any patient in the ER, regardless of their ability to pay. The practice of down-coding is at odds with this paramount responsibility, effectively denying these frontline physicians’ commensurate reimbursement for services they are mandated and duty-bound to provide.

Our members strongly support this state plan amendment, and the MSV remains committed to working alongside DMAS and other relevant stakeholders in ensuring the highest quality care for the citizens of Virginia as well as working to decrease emergency room utilization as a source of primary and preventative care for enrollees.

If you have any questions or wish to discuss this matter further, please contact Clark Barrineau at the Medical Society of Virginia, at Cbarrineau@msv.org or 704-609-4948.

Re:       VACEP Public Comment on Intent to Amend the State Plan – Emergency Room Charges

The Virginia College of Emergency Physicians are writing today in strong SUPPORT of DMAS’ Notice of Intent to Amend the Virginia State Plan for Medical Assistance to eliminate the provision that allowed the pending, reviewing and downcoding of fees for “avoidable” emergency room claims.  This provision must be eliminated, as required by a federal court order that was issued on April 27, 2023 (Va. Hosp. & Healthcare Assoc., et al. v. Roberts, et al., 3:20-cv-00587-HEH), which VACEP was a party to.  We agree with DMAS’ proposal to change and repeal the downcoding provision as described in Notice, which is consistent with the court order.  

Back in June of 2020, VACEP strongly OPPOSED the implementation of the ER Utilization program. We believed- as we still do today- that the Prudent Layperson Standard obligates Medicaid programs and managed care organizations (MCOs) to reimburse doctors and hospitals for the delivery of emergency medical care based on presenting symptoms and NOT using diagnosis lists. This standard is reflected in CMS guidance and remains in effect today.  

Removing this provision will have a positive impact on the emergency physicians across the Commonwealth who report to work every day to serve and save the lives of our patients.  The unfair reduction in their reimbursements over the last three years has had a very significant impact on their practice and the ability to appropriately staff emergency departments.  Emergency physicians and hospitals are obligated to treat everyone who comes into the ER, regardless of their ability to pay under the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”).  

As we, MSV and the VHHA addressed in previous public comment, EMTALA requires us to provide medical screening exams to everyone who comes in to determine whether an emergency medical condition exists. The downcoding provision conflicted this obligation, forcing physicians to continue to care for patients yet not get a commiserate reimbursement for the care that was provided.  Our hope is that the removal of this penalty will help to reduce some of the financial strain our physician practices are under as we strive to serve an ever-increasing number of patients, especially Medicaid patients who continue to struggle to find available primary care and preventative care. 

Finally, we want to emphasize that we remain committed to working with DMAS and the Commonwealth to support programs that truly reduce emergency department utilization by Medicaid patients.  Not paying the physicians for the care they provide has no impact on patient behavior. In 2021, DMAS issued a good roadmap for better options- the “Medicaid Payment Policy and Care Coordination Workgroup Report.” After two years of stakeholder meetings, the consensus recommendations focused on improving access to primary care, providing more complex care coordination, targeted rate increases, and improving access to behavioral health providers.  We also look forward to continuing to work on programs such as the Emergency Department Care Coordination Program to really work to help patients get the wraparound services they need to stay healthy and out of the ER.  

Again, we appreciate the opportunity to comment and strongly support DMAS’ proposed removal of the Downcoding Provision from the State Plan. If you have any questions or require clarifications of our comments, please feel free to contact Aimee Perron Seibert at aimee@commonwealthstrategy.net

Submitted Online (www.townhall.com) and Sent Via Email (Jimeequa.Williams@dmas.virginia.gov)

November 9, 2023

Jimeequa Williams

Virginia Department of Medical Assistance Services

600 E. Broad St., Suite 1300

Richmond, VA 23219

Re:       Virginia Hospital & Healthcare Association

Public Comment on Intent to Amend the State Plan – Emergency Room Charges

Virginia Hospital & Healthcare Association (“VHHA”) appreciates the opportunity to submit comments to the Virginia Department of Medical Assistance Services (“DMAS”) in response to its Notice of Intent to Amend the Virginia State Plan for Medical Assistance (the “State Plan”) posted on October 11, 2023 (the “DMAS Notice”).  In the DMAS Notice, DMAS specifically solicited input on the potential impact of the proposed changes to eliminate a provision allowing the pending, reviewing, and the reducing of fees for avoidable emergency room (“ER”) claims (the “Downcoding Provision”).  Elimination of this provision is required by a federal court order, dated April 27, 2023, (Va. Hosp. & Healthcare Assoc., et al. v. Roberts, et al., 3:20-cv-00587-HEH) (the “Order”).  VHHA supports DMAS’ proposed change to repeal/remove the Downcoding Provision from the State Plan as described in the DMAS Notice and consistent with the court’s ruling in the Order.

In its June 19, 2020, public comment letter to DMAS regarding a Notice of Intent to amend the State Plan to implement the Downcoding Provision, VHHA stated its opposition citing in detail its serious concerns that the Downcoding Provision will violate federal Medicaid regulations, conflict with the well-established “prudent layperson” (“PLP”) standard, raise constitutional concerns, and ultimately fail to reduce avoidable and unnecessary ER utilization.  In particular, the Downcoding Provision would cause DMAS to violate regulations at 42 CFR § 438.114 prohibiting state Medicaid agencies and Managed Care Organizations (“MCOs”) from (i) denying payment for treatment for an emergency medical condition and (ii) limiting what constitutes an emergency medical condition on the basis of lists of diagnoses or symptoms.  Indeed, the court found in Va. Hosp. & Healthcare Assoc., et al. v. Roberts, et al. that the Downcoding Provision violates and is not in accordance with the standards set forth in these regulations along with other provisions of the Medicaid Act.

Repeal/removal of the Downcoding Provision will have several positive impacts including not inappropriately penalizing hospitals and ER physicians for meeting required federal statutory obligations under the Emergency Medical Treatment and Active Labor Act (“EMTALA”).  As we addressed in previous public comment, EMTALA obligates hospitals to provide an appropriate medical screening examination to all individuals who present to the ER in order to determine whether an emergency medical condition exists, regardless of their ability to pay or their insurance status.  Implementation of the Downcoding Provision was in direct conflict with this duty to patients, causing hospitals and ER physicians to incur financial penalties for complying with this federal law.  Repeal/removal of these penalties will help to alleviate some of the financial strain on the ability of hospitals to staff ERs and meet ever-increasing demand for ER services, especially among Medicaid enrollees and medically underserved, vulnerable, and low-income individuals and families.

We are also concerned that the DMAS Notice understates the impacts of repeal/removal of the Downcoding Provision.  The DMAS Notice estimates an expected increase in annual aggregate fee-for-service expenditures of approximately $141,666 in federal funds from repeal/removal of the Downcoding Provision in FFY24 and FFY25.  This is dramatically lower than estimated savings for fee-for-service expenditures from implementation of the Downcoding Provisions when it was implemented – then estimated to be $2,642,866 in federal funds for FFY20 and $10,624,321 in federal funds for FFY21.  We are repeating here our request for DMAS to provide additional information on the calculation of these amounts and verification of same.  

Lastly, as we have stated previously, the Medicaid program in general, and Medicaid beneficiaries in particular, are not well served when actual emergencies are, by default, treated as non-emergencies merely because a patient has a diagnosis that could have been treated in an alternative setting of care other than the ER.  Reducing provider reimbursement for such services will not address the conditions or behaviors underlying the need for emergency medical services, but rather will penalize providers for serving their community and complying with the law.  

For all of the reasons stated herein, VHHA supports DMAS’ proposed change to repeal/remove the Downcoding Provision from the State Plan as described in the DMAS Notice and consistent with the court’s ruling in the Order.  If you have any questions or require clarifications of our comments, please feel free to contact Brent Rawlings brawlings@vhha.com, Senior Vice President & General Counsel.

Sincerely,

R. Brent Rawlings

Senior Vice President & General Counsel