Why Did AAEM Take a Stand Against APP Independent Practice?
Physician members of the American Academy of Emergency Medicine have voiced concerns about the use of advanced practice providers (APPs) in the emergency department and their push for independent practice without the supervision or even availability of a physician. The task force spent hours discussing the issues, comparing the education of physician assistants, nurse practitioners, and board-certified emergency physicians, speaking to physicians about their concerns, and examining the literature. (J Emerg Med 2004;26:279; Acad Emerg Med 2002;9:1452; J Emerg Med 1999;17:427; Acad Emerg Med 1998;5:247; Ann Emerg Med 1992;21:528.)
Most emergency physicians have worked with APPs and appreciate that they are talented clinicians who improve emergency department flow, efficiency, and quality of care under the guidance of the emergency physician-led team. Many emergency physicians are aware of situations that place APPs in clinical environments that are beyond their capabilities, level of training, and even scope of practice. This is not the quality of care our emergency patients deserve.
There is a vast difference in the clinical training of APPs compared with EPs. Some APP training programs require only 500 hours of unregulated, supervised clinical experience before graduating, while physicians must complete approximately 4,000 hours of clinical experience during medical school and an additional 8500 hours of highly regulated and supervised training as an emergency medicine resident before entering independent clinical practice. (J Emerg Med 2015;48:474.)
APPs do have a valuable role in many emergency departments, but their skills should be used as part of a team led by an ABEM/AOBEM emergency physician. APPs as members of that team should fill a role clearly defined by the emergency physicians in that department which professionally stimulates the APP and results in quality care. The cost of employment is lower for APPs than for EPs. As increasing patient volume drives increased need for coverage, the potential for increased profits grows if APPs replace EPs. The delivery of safe, expert physician-led care to every patient must be the primary factor when making staffing decisions, not profit.
The physicians staffing an emergency department are best capable of determining the needs of their department. Physicians should not be told by management that they must use APPs who have been hired for them. Rather, they should decide how many APPs they need and hire only those candidates who have the expertise and personality to mesh well with the culture of their emergency department team.
We are aware of situations where EPs are expected to supervise three, four, or even five APPs while simultaneously seeing patients primarily. The reality of those situations is often that the EP has only a cursory knowledge of the patients that the APP sees and little or no time to evaluate those patients independently. If defined patients and scenarios are deemed safe for the patient to be seen by the APP with the supervising physician providing only guidance and backup, then a bill should not be sent in the physician’s name. We support meaningful patient care by the physicians who are billing for it and transparency to patients. A signature in medicine implies that the signatory attests to the accuracy of the document. Without direct evaluation of the patient, how can one know the accuracy of the document?
Emergency medicine residency is a time for physicians to learn how to practice their profession. Residents should be trained by those who practice the profession in which they are seeking board certification. In a situation where APPs are practicing alongside EM residents, it is imperative to establish processes so that the training of the EM residents is not compromised. Residents need to complete a certain number of procedures to become competent. Attaining these skills should be a priority, and the residents should be the first priority to perform a procedure to become independently skilled.
It is challenging, if not impossible, for a patient to determine the role of all the people with whom they interact in the emergency department. Patients can easily be misled by non-physicians using the term doctor. They should not be expected to understand the difference between an MD or DO and a DNP or DScPAS (doctorate of science in PA studies). Patients deserve full transparency about who is caring for them, and non-physician clinicians must truthfully represent their level of training.
Throughout its history, AAEM has consistently asserted that ABEM/AOBEM certification is essential. The academy has also spoken against emergency departments staffed by non-ABEM/AOBEM physicians. Supporting the independent practice of APPs in our emergency departments is inconsistent with these core values. If APP independent practice is tolerated, a logical profit-driven next step is staffing entire emergency departments with APPs and even developing staffing companies to provide that coverage.
Our specialty owes its identity to our founders who demonstrated that the skills required to manage an emergency department expertly were unique in the house of medicine. They struggled to establish the specialty of emergency medicine and define the training required to become a specialist in emergency medicine. The independent practice of APPs has the potential to undermine all the efforts of those men and women who created the specialty of emergency medicine.
©2019 Wolters Kluwer Health, Inc. This article first appeared in Emergency Medicine News, and is reprinted with permission. www.em-news.com.
Highlights for Scientific Assembly 2019
Don’t Miss the Keynote Speaker
We could not be more excited for Scientific Assembly 2019 in Las Vegas. Don’t gamble on missing any of the opportunities to meet with your colleagues
from across the country and hear some of the latest scientific material from your favorite speakers and some exciting new talent. Our ,keynote speaker this year, Matthew Wetschler, MD will share his perspective on life and career. Matthew is an emergency physician, artist, and former professional athlete who drowned and suffered ten minutes of cardiac arrest. Even though he has sustained right-sided weakness, he has developed his artistic talents, and works to explore our relationship with limits, edges, and the space beyond. We are looking forward to his message.
Come Early: Pre-Conference Opportunities
Our pre-conference sessions will include the ever-popular ultrasound, resuscitation, ECG, and LLSA reviews, as well as Medication Assisted Treatment (MAT) waiver training and a session on military hemorrhage control. New this year will be a Written Board Review Boot Camp, for those of you taking the ABEM exam in April, and AAEM will jointly provide a teaching program with the Teaching CoOp, for those of you looking to brush up your teaching and presentation skills.
Back by Popular Demand
This year — back by popular demand — we will double the number of highly popular hands-on small group sessions. Our plenary speakers will cover the latest knowledge on cardiology, sepsis, trauma, resuscitation, critical care, and neurology. Also by popular demand, we will have the Airway Storytelling session, hosted by the unstoppable Billy Mallon. There will be many other events to participate in, such as Open Mic, Resident and Student Research Competition, WestJEM Competition and the RSA sessions. The Wellness Committee has some fun plans, including a new attendee welcome and a coffee crawl for you early risers.
New Panel: Patient as Educator
On Tuesday, the AAEM Scientific Assembly Subcommittee is delighted to announce a pilot format featuring patients as the educators in a session entitled: “Oncology Patient Perspective Panel.” In some diseases, there is no better way to learn about “best practice” than to hear from the patients themselves and see the emergency department (ED) encounter through their eyes. In this session, Dr. Jack Perkins (FAAEM) will serve as the moderator, and the panel will consist of oncologist Dr. Jennifer Vaughn, her patient Mr. Ben Bane, and the wife of her late patient Mr. Jason Price. Both Mr. Bane and Mr. Price spent dozens of hours in the ED with neutropenic fever, various chemotherapy complications, and other oncology related issues. Mr. Bane and Mrs. Susan Price will discuss details of their ED encounters in terms of what went smoothly, as well as opportunities for improvement. Dr. Vaughn will provide insight and expertise in a discussion of optimal collaboration between the emergency medicine provider and the patient’s oncologist.
This session will introduce a new “patient as the educator” format for educational sessions that may be utilized for future scientific assemblies. We will cover best practice in evaluation of neutropenic fever, optimal ways to initiate goals of care or end of life discussions, and the critical importance of collaboration with the patient’s oncologist regardless of the perceived severity of the presenting complaint. Please come to hear this engaging panel where the patients will give us their perspective. We guarantee it will be insightful and valuable.
Because we will be in Las Vegas, you will also have easy access to flights, and the opportunity to take in a show or maybe even practice your card shark skills. Don’t play the odds — join us for some of the best emergency medicine education and a great time!
Tattered Tarp or New Roof: Who Gets Included in Disaster Recovery?
In the bend of the south Texas coast, a community comes together to reflect on a year gone by since many lost everything. We danced in the streets, honored one another’s hardships and congratulated each other’s resilience, and I reflect on my own experience.
The last move my husband and I made before evacuating with our toddler and seven month- old was to throw an anchor from our sailboat, sitting on its trailer, in the front yard, a hundred feet from the water’s edge. “Maybe that will keep her from surfing into the neighbor’s second story living room,” my husband half-heartedly joked as he climbed into our small RV, wet from the first bands of the storm blowing ashore. At 5:30am, we left our home, driving in 20-minute shifts, exhausted from a day and a night of increasingly frantic preparation. Less than 12 hours later, the eye-wall of Hurricane Harvey made landfall directly on our small hometown of Rockport, Texas.
We returned to “The Charm of the Texas Coast” two days after the storm. Half of the structures were damaged beyond repair, the electrical grid was a tangle of wires and snapped poles, there was no running water, and overnight there was a new homeless population. The nearest hospital was destroyed and the majority of doctors’ offices closed due to damage. Rockport (Aransas County), Texas, was already designated a Medically Underserved Area. Like so many coastal communities, it is a glaring example of wealth inequality and social stratification; vacation homes and trailer homes. The storm’s destruction exacerbated an already failing safety net of health care and left our vulnerable population struggling with added mental and physical stress, financial devastation, and decreased access to primary care resources. It was obvious that the community needed a local medical response. After a short and self-guided course on legal protections for volunteer medical professionals in disaster zones, approval from the city Emergency Manager, and crucial support, both on the ground and remote, from a small group of graduates of the Latin American School of Medicine, I founded the Rockport Strong Mobile Medical Unit (RSMMU). For four months, RSMMU served as a pop-up urgent care clinic, staffed with volunteer physicians, nurses, and community health workers, operating out of the same RV in which my family had evacuated. Working alongside Emergency Management and FEMA, we provided free medical attention to over 400 patients.
Our team conducted a survey analysis to determine some characteristics of the population seeking our services. Some of the more important questions we asked our patients were if they had a primary care provider (61.5% reported they did not) and if they had health insurance (68% said no). And to the question, “Do you use the ED as your primary care provider?” 34% said they did. Of note, 74% of patients reported negative effects of the storm on their physical and/or mental health. The stories of the people represented in these figures were just as disconcerting: “I lost everything. I didn’t qualify for assistance. I don’t have a spare dollar to my name. My house is molding. I can’t afford my prescriptions.”
A year later, tattered blue tarps fail to cover the holes in roofs spaced throughout the community. Whose roof, though? Well, this is a diversity and inclusion column, so I bet you can guess. First, let’s talk about disaster vulnerability and how social conditions and location lend to the potential for greater harm to some social groups during a disaster and in the immediate aftermath. Social class factors force the poor to live in substandard housing, often located in physically vulnerable areas such as flood zones and in proximity to industrial sites, and reduce the ability to undertake loss-reduction measures (boarding windows, stockpiling supplies). In the U.S., race and ethnicity are strongly correlated with social class and are also associated with increased vulnerability to disaster.1
In the intermediate phase of disaster recovery, the same differential presents itself. Research conducted in the months following Hurricane Harvey found that the population affected differs by geography, race/ethnicity, and income, the largest impact felt by Blacks, Hispanics, and those with a self-reported income <100% FPL.2 Loss of income and employment disruption had a larger effect on Hispanic, Black, and lower-income residents. Among those with home damage, low-income, Black and Hispanic residents were less likely to have had insurance. Blacks and low-income residents also reported in higher percentages that they were not getting the help they needed. Language barriers arose as a contributing factor to sluggish recovery. Three in ten individuals answering a survey in Spanish reported that it was very or somewhat difficult to find information in Spanish regarding recovery assistance. The study also conveyed that undocumented migrants are particularly vulnerable to the effects of natural disasters, in part out of fear of exposing themselves or family member’s immigration status, and in another part due to ineligibility for benefits.
Now let’s look at long-term recovery and what has recently come to light. A study published in August (2018) concludes that wealth inequality increases along the lines of race, education, and home ownership in counties badly hit by natural disasters.3 In areas with at least $10 billion in damages, Black, Hispanic, and Asian communities saw their wealth decrease by an amount between $10,000 and $29,000, while white communities increased their wealth by an average of $126,000. The study suggests that the money follows the higher levels of reinvestment via infrastructure improvements and low-interest loans after a disaster occurs, as more privileged residents gain access to new resources. Meanwhile, low-income and non-property owners are more likely to experience financial strain from losing one’s job, moving, paying higher rents due to housing shortages, and depleting savings trying to compensate. Contrary to an often repeated myth, this data does not support the idea of disasters being “great equalizers.” It does however bring attention to the fact that for some people the resources which flow into disaster zones can be a silver lining to a universally bad situation. I witnessed this in Rockport as it became a temporary boomtown for construction contractors, clean-up crews, and donation sites across town. The issue is that the silver doesn’t seem to be making it into all folk’s pockets, especially for people of color.
What can we do? Disasters are great disruptors, and where there is disruption, there is room for innovation. After Hurricane Mitch slammed Honduras in 1998, Cuba responded by founding an international medical school, The Latin American School of Medicine (Escuela Latinoamericana de Medicina), designed to train doctors from lesser developed countries, mostly people of color, who would return to their medically underserved area when they graduate so that these communities would be healthier and more prepared for disasters in the future. This plan obviously took a very long view of disaster response, as the first graduates would have returned home some seven years after Mitch made landfall. It’s an example of a long-term disaster response that promotes inclusion and diversity in terms of both the medical profession and access to health care. The free mobile clinic in Rockport was a much= smaller and shorter-term response, but was still a successful innovation that brought resources to a medically underserved disaster zone. It is a model that can easily be recreated when the need presents.
The scientific community warns us that our warming planet will make high-magnitude weather events like hurricanes Katrina, Harvey, and Maria more frequent over the coming years. What does this mean for the health of communities of color exposed to these forces of destruction? Unfortunately, if disaster recovery maintains the pattern of reinforcing gaps in wealth along racial lines and the strong correlation between socio-economic status and individual health is also maintained, it’s likely that the health of communities of color will disproportionately suffer. While the issues are systemic, there are roles that individual physicians can take to immediately address some of the social determinants of health at play in post-disaster communities. Here are three suggestions:
- Set up a free clinic or volunteer to staff if one is already operating.
- Consider in-kind donations of medical equipment.
- Get involved with Emergency Management and advocate for the funding of programs that will improve access to health care (a community health center, for example).
Innovate. We need to change the trajectory of who gets to recovery from a disaster. The resilience and diversity of our communities depend on it.
1. Tierney, Kathleen. (2006). Social inequality, hazards, and disasters. On Risk and Disaster: Lessons from Hurricane Katrina. 109-128.
2. Hamel, L. et al. (2017). An Early Assessment of Hurricane Harvey’s Impact on Vulnerable Texans in the Gulf Coast Region: Their Voices and Priorities to Inform Rebuilding Efforts. Kaiser Family Foundation and Episcopal Health Foundation. http://www.episcopalhealth.org/files/7315/1240/4311/An_Early_Assessment_of_Hurricane_Harveys_Impact.pdf
3. Junia Howell, James R Elliott. (2018). Damages Done: The Longitudinal Impacts of Natural Hazards on Wealth Inequality in the United States, Social Problems, spy016, https://doi.org/10.1093/socpro/spy016
Highlights of AAEM's Legal Advocacy for Emergency Physicians
In the 25 years since AAEM’s founding, the Academy has been very active in advocacy and legal efforts on behalf of individual emergency physicians and independent groups. AAEM continues to be the only emergency medicine (EM) professional society ever to take legal action against contract management groups (CMGs) in defense of emergency physicians. The Academy’s willingness to put the interests of individual emergency physicians over corporate interests has had a major impact on our specialty.
Corporate Practice of Medicine
Catholic Healthcare West (CHW) and Emergency Physician Medical Group (EPMG)
In 1997, CHW, one of the largest hospital chains in the country, announced the purchase of EPMG, a privately held emergency medicine (EM) group. For the first time, a large hospital system had taken over a large EM group, converting hundreds of private practice emergency physicians into hospital employees. The $36 million purchase price was to be recouped by CHW from revenue taken from the professional fees of those emergency physicians. EPMG’s principal owners earned millions of dollars on the sale, and were then given jobs in the new CHW managed services organization, Meriten, which was essentially a contract management group. All current EPMG physicians — staffing eight of the 37 CHW hospitals — immediately became part of Meriten. Even more concerning, the independent emergency physician groups staffing the 29 CHW hospitals that were not part of EPMG were to be forced under the control of Meriten, which planned to take a 28% fee from its emergency physicians’ fees for expenses and profit.
With 29 contracts at risk, the regional implications were profound. AAEM also recognized national implications, as every large hospital system would see the opportunity to control and profit from their emergency physicians. After AAEM wrote letters of concern to the board of CHW, CHW in turn threatened AAEM. Undeterred and with AAEM’s help, the practicing emergency physicians of CHW organized into the Affiliated Catholic Healthcare Physicians (ACHP). With the support of AAEM, ACHP — along with the California Chapter of AAEM and the California Medical Association (CMA) — filed a lawsuit alleging violations of corporate practice of medicine (CPOM) and fee-splitting laws. The CMA recognized both the threat to emergency physician autonomy and the wider threat, as Meriten would also be positioned to control other hospital-based specialists. ACEP was asked to participate in these actions but declined, saying it was a private business matter.
The amicus curiae (friend of the court) brief filed by AAEM in this case can be found here.
After initial court hearings seemed to go against it, CHW sold EPMG back to its original owners, who then reorganized EPMG into a fairer, independent, physician-owned group. If CHW had been successful in this endeavor it would have opened the door to other hospital chains taking over emergency physician groups large and small, dipping into emergency physicians’ professional fees as a new source of revenue, and dramatically reducing the number of private EM groups. AAEM, at the time a fledgling organization, was the only EM society willing to stand with the ACHP physicians. This stand changed the course of EM in California. In the aftermath of this failed attempted takeover of EM, the chief medical officer (CMO) and chief executive officer (CEO) of CHW both resigned.
Mount Diablo Hospital (MDH), California Emergency Physicians (CEP), and TeamHealth
In 2003, Quantum Health, a subsidiary of TeamHealth, the second largest EM contract management group (CMG) in the United States, lost its contract at Mount Diablo Hospital in Concord, California to CEP. Three of the emergency physicians there wanted to continue working at MDH, where they had each been on staff for years. One was even a former Medical Staff President. In response, Quantum Health filed suit against these doctors, seeking damages from them for their supposed role in the loss of the contract. The emergency physicians went to ACEP for help and were told, as in the CHW matter, that it was a private business matter. They then came to AAEM and were provided advice, support, and legal assistance. The doctors joined AAEM in a counter-suit against TeamHealth, alleging that TeamHealth was using corporate subsidiaries to hide its violation of California’s prohibition on the corporate practice of medicine (CPOM). AAEM sought a declaratory judgment, requesting that all ED staffing contracts held by TeamHealth subsidiaries in California be voided, in light of California’s CPOM laws. This counter-suit was the first legal action ever taken against a CMG by an EM professional society.
All parties reached a settlement whereby TeamHealth dropped its lawsuits against the emergency physicians, who were able to continue working at MDH, and AAEM dropped its lawsuit against TeamHealth for violating California CPOM laws. In 2005, AAEM assisted in similar cases in Rhode Island and Indiana, also with favorable outcomes.
A copy of the AAEM counter-suit can be found here.
Read the full story from Emergency Medicine News here.
CMGs and Malpractice Coverage
In 2003, PhyAmerica, one of the largest CMGs, went bankrupt. In 2004, Sterling Healthcare, another large contract management group, purchased PhyAmerica’s bankrupt assets, including its ED contracts. PhyAmerica then told its emergency physicians that their self-insured medical malpractice/legal defense fund had been exhausted. 200 PhyAmerica emergency physicians who had already been sued were told they no longer had malpractice coverage, and must pay all attorney fees and legal judgments out of their own pockets. And of course, PhyAmerica emergency physicians had no malpractice coverage for future suits. In response, AAEM organized a Working Group from among the affected emergency physicians, handled logistics, and offered free legal counsel. The Academy also filed an amicus curiae brief before the Baltimore Bankruptcy Court.
In April of 2005 a court order guaranteeing the protection of the physicians’ personal assets was handed down. AAEM also negotiated with Sterling Healthcare for partial reimbursement of the emergency physicians’ legal costs.
Corporate Practice of Medicine
Emergency Physicians Professional Association (EPPA) and EmCare
In 2004, EmCare, the largest emergency medicine CMG, acquired the contract at Methodist Hospital in St. Louis Park, Minnesota. EPPA, a private democratic group serving the hospital since 1969, was not even told the contract was up for bid until after the contract was awarded to EmCare. No request for proposals was issued. EPPA’s physicians initially reached out to ACEP for support through its state chapter, but were told this was not allowed by national ACEP. EPPA then asked AAEM for help. AAEM Past President, Dr. Robert McNamara flew to Minnesota and met with nearly 100 emergency physicians. The Academy offered legal counsel, went to the hospital on EPPA’s behalf, and filed complaints with the state attorney general and Board of Medicine. In December of 2004, AAEM and EPPA jointly filed suit against EmCare for violating CPOM and fee-splitting laws, and filed suit against the hospital for breach of contract. A copy of the suit can be found here.
Three weeks later, Methodist Hospital terminated its relationship with EmCare and re-contracted with EPPA. EPPA continues to serve Methodist Hospital and several other local hospitals. AAEM then sent a letter to every hospital administrator in the state of Minnesota, informing them of this matter and sending the message that AAEM is watching what they do with their EDs. This action had a chilling effect on the desire of layperson-owned CMGs to move into Minnesota, and they have been unable to establish a significant foothold in that state.
Read more from EM News.
The Fight Against Alternate Boards
The American Board of Physician Specialties (ABPS) began approaching state medical boards seeking formal recognition beginning in the early 2000’s. State boards do not generally control what specialties different physicians may practice, but several state boards limit how physicians may describe their specialization, typically in the form of advertising. The ABPS describes itself as “… the official multi-specialty board certifying body of the American Association of Physician Specialists (AAPS).” It offers certification in 20 different specialties, but review of its website reveals that the majority of its diplomats are certified in a single specialty: Emergency Medicine. Their designation is “Board of Certification in Emergency Medicine” (BCEM).
AAEM believes that “A specialist in emergency medicine is a physician who has achieved, through personal dedication and sacrifice, certification by either the American Board of Emergency Medicine (ABEM) or the American Osteopathic Board of Emergency Medicine (AOBEM).” The fundamental problem with the BCEM process is that it does not require formal ACGME accredited Emergency Medicine training. Rather, an applicant can qualify after completing one of a large number of alternative specialty training programs or even one of 14 EM fellowships, harkening back to the ABEM and AOBEM “Practice Track ” provisions that closed in the late 1980’s. State board recognition of BCEM allows these physicians to misleadingly represent themselves as EM specialists.
In 2002, AAPS certified physicians were approved by the Florida Board of Medicine for such advertising. In 2010, similar recognition was granted in Texas. However, AAEM has been a staunch opponent of back-door paths to proclaim “board certification” outside the ABEM/AOBEM process.
AAEM played a key role in successful efforts in Oklahoma, North Carolina, Utah opposing AAPS’s attempts to gain similar status in these states. AAEM member Dr. Howard Roemer, was awarded AAEM’s James Keaney Award for his key role in convincing the Oklahoma State Legislature to reject AAPS’s proposal. AAEM remains the only EM organization requiring board certification to be a full voting member and a fellow of AAEM.
Read the February 6, 2006 letter to OK Board of Osteopathic Examiners.
Read the AAEM Values Statement, describing EM Specialist.
Restrictive Covenants in Tennessee
In 2005, legislation was introduced to allow restrictive covenants in physician employment contracts in Tennessee. AAEM and its Tennessee chapter strongly opposed these efforts and made this issue a top legislative priority for the next two years. TN-AAEM Board members Dr. David Lawhorn and Dr. Andy Walker testified before the House committee reviewing the bill, and explained to committee members how such non-compete clauses harm both patients in general and emergency physicians in particular.
While TNAAEM was not able to kill the bill entirely, emergency medicine was exempted. Emergency physicians in Tennessee remain free of restrictive covenants to this day.
Read more at EM News.
Corporate Practice of Medicine
TeamHealth and the Memorial Hermann Hospital System (MHHS)
In 2007, MHHS, a large hospital network in Houston, awarded eight emergency department contracts to TeamHealth. Several emergency physicians contacted AAEM for assistance in this matter, including a private group with a 20-year history with MHHS, which was ousted in this move. AAEM and the private group — with AAEM’s financial assistance — filed suit against TeamHealth and MHHS, citing violation of Texas CPOM laws. AAEM felt the case had substantial footing, as the Texas Medical Practice Act prohibits physicians from being employed by lay corporations for the practice of medicine. Additionally, previous Texas case law (Flynn Brothers, Inc. v. First Medical Associates, Dallas 1986) held that lay persons could not profit from an ED contract. AAEM’s efforts were funded through donations to the AAEM Foundation.
Unfortunately, a state district court held that it did not have jurisdiction to hear the case. Despite an amicus curiae brief filed in support of AAEM by the Texas Medical Association, a state appeals court affirmed the district court’s decision. The court of appeals held that AAEM lacked standing to challenge the contract between MHHS and TeamHealth, as well as the contracts between TeamHealth and its emergency physicians. One of the plaintiff physicians actually signed a contract with the TeamHealth subsidiary, but even then the court would not grant a declaratory judgment enforcing the state CPOM laws, holding that private individuals could not enforce the Texas Medical Practice Act. The court did leave open the possibility that physicians could file suit to nullify their contracts with a lay-owned corporation, as such contracts may violate state CPOM laws.
AAEM then appealed to the Texas Supreme Court, which refused to hear the appeal. As a result, neither the Academy nor the plaintiff physicians ever got the chance to argue the merits of their case before a judge or jury, and no judgment on the merits of AAEM’s corporate practice of medicine claim was rendered. AAEM still believes it could win in court on the issue of the corporate practice of emergency medicine in Texas.
Read more from EM News.
Due Process / Whisteblower Case
Dr. Genova versus Banner Health
In January of 2010, emergency physician Dr. Ronald Genova contacted the hospital administrator on-call, the hospital CEO, requesting to implement a “Code Purple” to divert patients to other hospitals, because he believed the ED at North Colorado Medical Center could no longer provide appropriate and timely screening to patients due to excessive crowding. According to the facts alleged in Dr. Genova’s lawsuit, a patient with a GI bleed had already collapsed in the waiting room bathroom while awaiting evaluation and two heart attack patients had just presented to the ED. According to Dr. Genova, the hospital CEO refused the request. Two weeks later, in apparent retaliation, Dr. Genova was removed from ED duties.
Dr. Genova filed a lawsuit noting that his removal from the schedule violated EMTALA whistle-blower protections and the covenant of good faith and fair dealing implied in contracts by Colorado law. The federal District Court dismissed Dr. Genova’s suit, citing that Dr. Genova signed away his right to sue the hospital when his group contracted to provide physician coverage of the ED. Dr. Genova then asked for AAEM’s assistance. In November of 2012, Dr. Genova appealed, and AAEM filed an amicus curiae brief asking the appellate court to overturn the dismissal and have the allegations in the complaint adjudicated on its merits. AAEM argued that the District Court imposed too narrow a reading of EMTALA’s whistle-blower protections. AAEM also argued that a hospital should not be allowed to insist on a waiver of the covenant of good faith and fair dealing, as that implied covenant serves not only to protect the physician but also patients. While the 10th Circuit Court of Appeals favorably discussed the arguments made by AAEM, it ultimately upheld the dismissal. Although AAEM is disappointed with the outcome, this case demonstrates the Academy’s willingness to come to a member’s aid when their practice rights are threatened.
The AAEM amicus curiae brief can be accessed here.
Cross Subsidization, Fee Splitting, CPOM
In 2014, Tenet Health, one of the largest hospital networks in the country, put the contracts out for bid at 11 of its hospitals in California, to replace their emergency medicine, anesthesiology, and hospitalist groups. Many of these groups had served their hospitals and their communities well for decades. Such a change would be highly disruptive to the hundreds of physicians who have learned the systems and processes of their practice over time, and have developed relationships with their hospitals and medical staffs — not to mention the disruption to local nursing staffs, patients, and communities. Most of the hospitalist contracts and some of the anesthesiology contracts included a subsidy from Tenet, while most of the EM contracts generated enough revenue through collected professional fees to be entirely self-supporting and quite profitable.
Tenet solicited several large CMGs seeking a no-subsidy arrangement for all contracts. Essentially, Tenet wanted the profits from the emergency medicine contracts to cover its losses on the hospitalist and anesthesiology contracts. In addition, the emergency medicine practices will serve as a piggy bank to be raided by the CMG and the hospital. Of course, the CMG needs to show a nice profit to its investors too, which is hard to do without the anesthesiology and hospitalist subsidies. So, this also raised concern for future belt-tightening at the affected hospitals: less physician coverage, greater use of NPs and PAs, and lower pay for physicians. Federal fee-splitting laws, enacted to prevent kickbacks and abuse, prohibit the distribution of part of a physician’s professional fee to any entity, in excess of the fair market value of services provided to that physician. When part of a physician’s professional fee is being distributed to a hospital or CMG, the parties involved may be in violation of those laws. If an emergency physician’s professional fees were to go towards subsidizing other hospital-based specialists, or to pad the bottom line of a for-profit corporation, this would appear to be an extreme violation of federal fee-splitting laws. It is also important to recognize that California has some of the strongest corporate practice of medicine (CPOM) laws in the country. These laws, drafted to protect the public due to the potential for abuse when a corporation’s fiduciary duty to its shareholders is in conflict with a physician’s duty to his or her patients, prohibit non-physician, lay corporations from owning or controlling physician practices.
The leaders of several groups affected contacted AAEM and asked for our assistance. AAEM and its California chapter provided advice to the affected groups, sent letters outlining AAEM’s concerns to the relevant hospital leaders, hospital boards, and medical staffs; and engaged in discussions with Tenet Health leadership. AAEM and the affected groups organized a highly effective public relations campaign. AAEM President Dr. Mark Reiter was quoted in many media outlets, noting his concerns that Tenet Health’s proposal was bad for Tenet’s hospitals, bad for its physicians, and bad for its patients. Soon after, Tenet’s leadership informed AAEM that they were no longer considering this course of action, and that the local groups would remain.
Read the September/October 2014 President’s Message: Tenet Wants Emergency Physicians to Subsidize the Rest of the Hospital.
Read the November/December 2014 President’s Message: Tenet Health Update & Opportunities with AAEM.
Fee Splitting, Anti-Kickback, CPOM
Over the past decade, the largest hospital network in the country, Hospital Corporation of America (HCA), entered into a joint venture with EmCare/Envision, the largest CMG in the country. Under this arrangement, via the joint venture, the hospital and the CMG jointly own the emergency physician group and split the profits resultant from the emergency physician professional fees. Although CMGs have profited handsomely from emergency physician professional fees for decades, this was new territory for hospitals. In the past few years, HCA has brought most of its EDs under the joint venture, destroying dozens of independent EM groups. In return for being able to keep working in the same ED, many of these physicians are forced to take significant pay cuts and lose much of their independence and job security. Several other hospitals and CMGs have engaged in similar arrangements on a smaller scale.
Since hospitals and CMGs are typically not physician-owned corporations, having a hospital-CMG joint venture owning or controlling a physician practice may violate corporate practice of medicine laws in many states. In addition, federal fee-splitting laws, drafted to prevent kickbacks and abuse, prohibit any portion of the physician professional fee from being distributed to any entity in excess of the fair market value of any services provided. In addition, there is concern that these arrangements violate federal anti-kickback laws.
AAEM, in conjunction with a prominent law firm, has been actively investigating potentially illegal activities and hopes to enforce any prohibitions on such activity. AAEM has brought its concerns to a variety of federal and state agencies, many of which have voiced significant concerns with the legality of these arrangements and continue to investigate. AAEM has also passed a position statement noting its opposition to these joint venture arrangements and has discussed the issue with the media.
Unfortunately, we have not been successful in shutting these joint ventures down, but we will continue to be the only professional organization that is fighting for its members on this important issue.
Read the May/June 2014 President’s Message: Hospital-Contract Management Group Join Ventures: A Disturbing Trend.
AAEM Physician Group
For years, AAEM has been the strongest advocate in the house of medicine for physicians owning and controlling their own practices. Practices owned by a small subset of their physicians or entirely owned by lay corporations are much more likely to lack transparency, political equity, and financial equity. This can create conditions ripe for exploitation. AAEM has worked hard to promote equitable, democratic, physician-owned practices throughout its existence. Despite AAEM’s efforts, physician-owned practices are under significant threat. Small practices may have difficulty developing and maintaining the infrastructure needed to be successful in the new reality of health care reform, accountable care organizations, and value-based purchasing.
In 2016, the AAEM Physician Group was launched to combine the advantages of small, democratic groups of physician owners, with the economies of scale, expanded services, and clout of large groups. Likewise, the AAEM Physician Group can help minimize the time, resources, and risk to emergency physicians who want to create their own EM group, or to bring the control of their group back to the physicians actually practicing in their ED. AAEM has created a new paradigm whereby smaller EM groups could become part of a national collaborative with access to best-in-class practice management services provided at fair market value. For existing groups, we believe the addition of more professional management will help them maintain their contracts and facilitate possible expansion. Moreover, as part of AAEM, we believe affiliated groups will garner significant legal protection under the existing prohibitions on corporate practice of medicine and fee-splitting. Unlike the Memorial Hermann case mentioned above, AAEM will now have “standing” in any threat to the contract. Likewise, AAEM Physician Group can seek new, high quality ED contracts and then set up and install local, democratic groups at these sites. We developed a set of fairness principles that would be required for participating groups to meet (i.e., financial transparency, reasonable path to partnership, due process, political and financial equity) to ensure that the commitment to a fair environment would be maintained.
The AAEM Physician Group is off to an excellent start. We now have multiple EDs representing hundreds of thousands of patient visits partnering with us as part of the AAEM Physician Group. Each group maintains local ownership and control while being obligated to follow AAEM’s Fairness Principles. If your group is interested in learning more about the AAEM Physician Group, please contact its CMO, Dr. Robert McNamara at firstname.lastname@example.org
Read the September/October 2015 President’s Message: The AAEM Physician Group at: http://www.aaem.org/UserFiles/file/CS_SepOct2015_ President.pdf
As you can see, the Academy has been extremely active in protecting the practice rights and livelihoods of emergency physicians, who often have nowhere else to turn for support in such matters. Many of our advocacy and legal actions have been successful and substantial, with significant benefits to the emergency physicians involved — including saving their jobs. There is still much to do, however, especially in an environment where lay-owned, corporate, contract management groups — which often have a very poor track record regarding restrictive covenants, due process, and other practice rights — control a large proportion of emergency medicine jobs. Your AAEM membership, your active support of its work, your recruitment of new Academy members, and your donations to the AAEM Foundation provide the resources the Academy needs to be a successful advocate for the practicing emergency physician.
The links below are further readings on this matter:
Emergency Medicine at Risk?
You may have heard it said that we really don’t have a health care system, rather a health care mess. I disagree. Our system is actually quite good at doing what it is designed to do. Let me explain by starting with some definitions.
Health care is the prevention, treatment, and management of illness or injury by health professionals.
Physicians deliver health care along with the advance practice providers, nurses, techs, respiratory therapists, physical therapists, etc. that we guide. Hospitals, insurance companies, pharmaceutical companies, pharmacies don’t deliver health care. They may be part of a system within which health care is delivered but they don’t deliver health care. What should their role be? Let’s look at another definition.
According to the Business Dictionary a system is an organized, purposeful structure that consists of interrelated and interdependent elements (components, entities, factors, members, parts etc.). These elements continually influence one another (directly or indirectly) to maintain their activity and the existence of the system, in order to achieve the goal of the system.
If you think of the various entities in our “system” — pharmaceutical companies, hospitals, insurance companies, medical device manufacturers, contract management groups, pharmacies, and a host of others — they are certainly interrelated and continually influence on another to maintain their activity. They just have the wrong goal. Their goal is to make money and as evidence by the fact that we spend around 18% of our GDP on the delivery of health care they are very good at it. The goal should be to support the delivery of health care. Everything these entities do should foster and facilitate the physician-patient relationship. We all know from our various experiences that our system does not support but rather uses and in some cases corrupts the physician-patient relationship. That corruption is the root cause of much of the burnout we observe in our practices, in my opinion. But I digress.
Change is going to happen because the economists and other “experts” believe that the spending is not sustainable. They are probably right but it is a by-product of our system so efforts to control the spending must necessarily change the system. This will be a monumental task simply because there is so much money involved and no one will voluntarily give that up. Those with the best lobbyist have their turf protected. Physicians are very bad about organizing and devoting their time and money to protect their turf, believing the sanctity of the patient physician relationship will protect them. I may be cynical but I think that belief is naive.
I think this poses a very real threat to emergency medicine. It is widely believed that the care delivered in the emergency department is too costly. Efforts to show that it is only a small part of the overall health care spend are important but I believe will not be enough to protect our turf. Strides to defend the prudent layperson standard and prevent post treatment denials of payments such as Anthem has announced, are crucial. I am not sure they will be enough. I believe that someone will figure out how to keep the patients that “don’t need to be there” out of the emergency department. I am not talking about the patients that we can all agree that don’t need to be there — they probably don’t even need a doctor. I think the big challenge is those patients that we see every day that don’t need to be there but we don’t know this until after we see them. Pay attention during your next shift. How many patients can you determine after one or two minutes don’t need to be there? I know that the professional fees are not the problem. The facility fees are typically 5-10 times the professional fees. The hospitals are not going to bring those in line. Anthem and United recognize this and that is why they are retrospectively denying payments.
With challenges comes opportunity. Emergency medicine is a unique specialty we are defined by a patient population (those that present to an emergency department) and not, like most other specialties, defined by an organ system or disease process. We still may be defined by a patient population but within the house of medicine our role has evolved. We are now the specialty that treats almost all patients with undifferentiated acute illness. We are the specialty that puts the puzzle together and makes the diagnosis. Our skill set is crucial. Is it necessarily tied to hospital based emergency departments? Sure, we need some tools to do our job but the decreasing cost of tools no longer necessitates them being in hospitals. The growth of freestanding emergency centers (FSEC) in many areas of the country was fueled by this recognition and may be part of the solution. However, the “cost” of the FSECs are not much less than the hospitals. Urgent care centers largely lack the expertise and equipment to make a big impact.
Emergency medicine needs to understand that change is coming and that it is a particular threat to our specialty. But also recognize that our expertise is crucial and put forth “out of the box” solutions before the “system” defines our role going forward. Our “system” is very good at what it does — make money. If we don’t define the solutions we run the risk of being left out of the money.