ACEP4U: Federal Surprise Billing (Out-of-Network Billing) Advocacy

On July 29, ACEP and EDPMA sent a joint letter to the Department of Health and Human Services, Labor, and Treasury to raise concerns about the reliability of the Qualifying Payment Amount (QPAs) used in the Federal Independent Dispute Resolution (IDR) process. In our letter, we request that the Departments issue guidance as soon as possible that instructs IDR entities to assess the validity of the QPA when rendering payment determinations and to consider whether submitted QPAs have been calculated appropriately and accurately.

ACEP launches effort to collect stories from emergency physicians about their experiences with bad insurer behavior, including stalling in the NSA's IDR process in order to provide policymakers and the media with examples to help them push insurers toward transparency and better business practices.

ACEP worked with Congressional offices to help inform and build support for a letter sent by Reps. Wenstrup, Murphy, Pascrell, Morelle to the Biden Administration urging it to take action to ensure that the No Surprises Act is implemented properly and that additional administrative burdens and barriers to patient access are addressed.

ACEP partnered with the the American Society of Anesthesiologists (ASA) and the American College of Radiology (ACR) to survey physicians and help inform the steps that Congress and regulatory agencies can take right away to improve the severely flawed implementation of the new law.

On February 26, ACEP and EDPMA wrote to request immediate action by the Departments of Health and Human Services, Labor, and Treasury to address numerous instances in which health plans alter patient cost-sharing amounts after an independent dispute resolution (IDR) payment
determination. This is a direct violation of the No Surprises Act. ACEP and EDPMA are very concerned about the lack of enforcement or Department communications emphasizing the need for compliance with these patient protections.

On December 21, ACEP and EDPMA submitted a more comprehensive joint letter responding to the proposed rule on “Independent Dispute Resolution Operations” (CMS-9897). Overall, the letter expressed appreciation for the Departments’ proposals that would encourage negotiations
prior to the start of the independent dispute resolution (IDR) process, reduce the number of initiated disputes later determined to be ineligible, help speed up payment determinations by certified IDR entities (IDREs), and, with proper enforcement, hold the potential to reduce reliance on initiation of IDR overall. The letter also strongly urged the Departments to take the necessary steps to enforce compliance with the eventual finalized policies in order to ensure their successful implementation.

On November 10, ACEP and EDPMA submitted a joint letter expressing initial appreciation for a new proposed rule “Independent Dispute Resolution Operations” (CMS-9897), which would permit broader batching of claims under the No Surprises Act (NSA) and make other changes to the Federal Independent Dispute Resolution (IDR) process that ACEP has been asking for.

On October 26, ACEP and EDPMA submitted a joint letter commenting on the Administration's proposed rule on IDR fees. This proposed rule follows the August 3 decision in favor of the plaintiffs in the TMA IV lawsuit against the federal government.

On Sept 19, ACEP member Dr. Seth Bleier testified in front of the House Ways and Means Committee in a hearing about the flawed implementation of the No Surprises Act. Bleier emphasized the need to address the backlog of independent dispute resolution (IDR) claims and stop flagrant insurer abuses of the process, among other concerns.

ACEP, alongside our physician community partners, has notched its fourth win in the legal battle to make sure that the No Surprises Act is implemented consistent with Congressional intent. ACEP and allied physician groups strongly supported each of the lawsuits brought by the Texas Medical Association (TMA) through legislative and regulatory advocacy, media outreach and court filings.

On June 29, ACEP participated with several other physician and provider stakeholders in a roundtable discussion hosted by Senate Health, Education, Labor, and Pensions (HELP) Committee staff regarding ongoing implementation challenges for the No Surprises Act (NSA).

ACEP and others provided insights on the challenges with the open negotiation process, highlighting how it is seldom used in practice; difficulties with the timelines for open negotiation and independent dispute resolution (IDR) processes that disadvantage physicians and how insurers frequently disregard the timelines without consequence; and issues of insurer payments, including the qualifying payment amounts (QPAs) and amounts they have been instructed by IDR entities to pay but often have not paid accordingly or in a timely manner, and in many cases, have not paid at all. Stakeholders offered ideas and policy solutions to Committee staff aimed at addressing these issues.

ACEP partnered with EDPMA to submit a follow-up letter providing details of the recommendations raised during the roundtable.

On March 17, CMS issued revised guidance for the independent dispute resolution (IDR) process that takes into account the recent Texas Medical Association Court Order.  The new guidance removes the flawed "double counting" provision and states that independent arbiters must consider all evidence presented to them by the disputing parties (without weighting the qualifying payment amount more heavily than any other factor or assuming that other factors are already incorporated into the qualifying payment amount). 

At last, the guidance seems to closely reflect what the No Surprises Act statute actually says. This is a major advancement in ACEP's advocacy push to make the arbitration process more fair and balanced.

After being suspended for services delivered after Oct. 25, 2022, IDR process is now finally reopened for all claims! Hopefully now since the IDR process is reopened, arbiters can start working through the significant backlog.

On February 28, ACEP, the American College of Radiology® (ACR®), and the American Society of Anesthesiologists (ASA) sent a letter to CMS requesting that the agency issue revised guidance as soon as possible that takes into account the TMA II Court Order. IDR determinations for services delivered after October 25, 2022 are suspended pending the release of this guidance.

On February 13, ACEP and EDPMA sent a letter to federal agencies expressing multiple concerns about the significant increase in the non-refundable IDR administrative fee in 2023, from $50 to $350, and the impact such a high fee will have on emergency physicians and their patients.

On February 6, a Texas District Court judge invalidated parts of the August final rule implementing the No Surprises Act—specifically pertaining to the prioritized treatment of the qualifying payment amount (QPA) during the IDR process. ACEP and other medical societies praised the decision, and you can read more about ACEP’s legal efforts here. The Departments have instructed certified IDR entities to hold all IDR claims until they can issue revised guidance that adheres to the Court order.

On January 5, ACEP participated in a meeting with federal officials and other stakeholders impacted by federal IDR including medical societies, hospitals, insurers, and employer groups in an effort to address ongoing issues with the process. ACEP followed up with a letter to HHS, Department of Labor, and the Treasury Department to provide more specifics around some of the recommendations discussed in the meeting. 

On November 28, ACEP and EDPMA sent a letter to federal agencies reiterating our previous request that health plans be required to use certain Remittance Advice Remark Codes (RARCs) when responding to out-of-network claims. We believe that required use of the RARCs will help streamline the IDR process and eliminate some of the roadblocks that has made the IDR process inefficient. 

On October 19, ACEP, the American College of Radiology^® (ACR^®), and the American Society of Anesthesiologists (ASA) filed an amicus brief in support of a new Texas Medical Association (TMA) suit, stating that the Surprise Billing Final Rule IDR process still fails to comply with No Surprises Act statutory text. The TMA suit is filed in the same Texas Federal Court that ruled in favor of the TMA thus vacating parts of the IDR process published in the Surprise Billing Interim Final Rule issued last September.  Read ACEP’s press release for more.

On August 19, federal agencies issued a final rule finalizing certain policies related to the No Surprises Act, including one that  ACEP viewed as a flawed implementation giving unequal weight to the Qualified Payment Amount (QPA), tilting the process unreasonably in favor of insurance companies. Additional details can be found in this ACEP summary. 

JUNE 2022

On June 21, ACEP and EDPMA sent another letter to federal agencies that included additional requests for guidance to help ensure that patients are truly taken out of the middle of billing disputes and that health care providers have the clarity they need to accurately bill patients for furnished services and, if necessary, engage in the federal IDR process.

In response to our advocacy, on June 6, CMS released a checklist of requirements for insurers during the Open Negotiations and federal IDR processes. In the introduction to the checklist, CMS states that it has received numerous complaints that insurers have not been complying with some of the requirements, and therefore the purpose of the checklist is to ensure that insurers understand and follow all of them. 

MAY 2022

On May 25, ACEP and EDPMA met with staff within the Center for Consumer Information and Insurance Oversight (CCIIO) at the Centers for Medicare & Medicaid Services (CMS) to follow-up on a letter we sent on April 25. During the meeting, we described to CCIIO what specific health plan non-compliance issues we are experiencing, provided specific recommendations, and also requested additional guidance on how we should proceed with the Open Negotiations and IDR processes when there is limited or missing information from health plans (information that was required by the first interim final rule implementing the No Surprises Act). We also emphasized the critical need for stronger enforcement of the regulatory requirements that health plans are failing to meet.

APRIL 2022

On April 25, ACEP and EDPMA sent a letter to federal agencies that describes, with examples, some of the major issues our members are facing receiving all the information needed from health plans in order to accurately bill patients and initiate the Open Negotiations Process.

The U.S Government appealed the U.S. District Court for the Eastern District of Texas ruling that invalidated the flawed Qualifying Payment Amount Policy that the government had implemented. On April 25, ACEP issued a statement that, now that the government has appealed this decision, ACEP, the American College of Radiology (ACR), and the American Society of Anesthesiologists (ASA) stand ready to pursue their case to halt the government’s unlawful rule.

MARCH 2022

On March 22, ACEP and EDPMA sent a letter to federal agencies outlining our recommendations for what functionalities should be built into the IDR Portal—the main system that will be used to facilitate disputed claims through the federal IDR process.

DECEMBER 2021

On December 22, ACEP, the American College of Radiology (ACR), and the American Society of Anesthesiologists (ASA) brought a lawsuit against the federal government charging that the interim final rule (IFR) on surprise medical billing goes against the language of the No Surprises Act and will ultimately harm patients and access to care. Read ACEP's press release here.

On December 9, ACEP and the North Carolina College of Emergency Physicians (NCCEP) sent a joint letter to the NC Congressional delegation notifying them of our strong concerns and asking for assistance regarding BCBS-NC and other payer letters that have been sent to physician groups citing the new surprise billing regulation as their impetus. 

On December 6, ACEP and EDPMA submitted a comprehensive response to the second interim final rule implementing the No Surprises Act. This second rule mainly focuses on the independent dispute resolution (IDR) process. In the letter, ACEP and EDPMA express our disappointment with how much weight this rule has now given to the qualified payment amount (i.e., the median in-network rate) in this process. The justification provided by federal agencies in the rule for going this route is particularly disappointing and is far outside the bounds of Congressional intent in the No Surprises Act. 

NOVEMBER 2021

On November 11, ACEP and EDPMA submitted an initial response to the second interim final rule implementing the No Surprises Act. 

On November 5, Reps. Tom Suozzi (D-NY), Brad Wenstrup, DPM (R-OH), Raul Ruiz, MD (D-CA), and Larry Bucshon, MD (R-IN) sent a letter to HHS Secretary Xavier Becerra, Labor Secretary Martin Walsh, and Treasury Secretary Janet Yellen, urging their respective departments to follow the letter of the law and amend the second interim final rule. The letter was cosigned by 152 bipartisan members of the House of Representatives - more than 1/3 of the entire chamber. In total, 2,540 ACEP members sent 5,297 messages to Congress sounding the alarm about this disastrous rule and asking House members to sign the letter.

OCTOBER 2021

On October 15, ACEP participated in a meeting with the CMS Administrator, other senior CMS officials, and key staff from the Departments of Labor and Treasury to discuss our concerns with the second interim final rule. ACEP helped organize the meeting and was joined by other medical societies and hospital organizations

On October 14, ACEP hosted a Surprise Billing Member Town Hall that provided an overview of the second interim final rule implementing the No Surprises Act and discussed our advocacy strategy going forward. This second rule mainly focuses on the independent dispute resolution (IDR) process. ACEP is disappointed and concerned with how much weight this rule has now given to the qualified payment amount (i.e., the median in-network rate) in this process. The justification provided by federal agencies in the rule for going this route is particularly disappointing and is far outside the bounds of Congressional intent in the No Surprises Act.

On October 1, ACEP issued a statement opposing the second interim final rule.

SEPTEMBER 2021

On September 30, federal agencies released a second interim final rule implementing the No Surprises Act. 

AUGUST 2021

On August 10, ACEP and EDPMA sent a letter to federal agencies that included detailed input on the independent dispute resolution process in anticipation of the release of the second interim final rule implementing the No Surprises Act.

On August 31, ACEP and EDPMA submitted our official response to the first interim final rule implementing the No Surprises Act.

JULY 2021

On July 1, federal agencies released an interim final rule that implements specific sections of the law.

On July 22, ACEP and EDPMA sent comments related to State All Payer Claims Databases (APCDs) to the State All Payer Claims Databases Advisory Committee (SAPCDAC). The SAPCDAC has the responsibility of advising the Secretary of Labor on the standardized reporting format for the voluntary reporting of data by group health plans to State APCDs.

JUNE 2021

On June 2, ACEP and EDPMA met informally with staff at the Center for Consumer Information and Insurance Oversight (CCIIO) to follow-up on the two letters that we sent to federal agencies implementing the No Surprises Act.

On June 15, ACEP and EDPMA had an official meeting with the White House’s Office of Management and Budget (OMB) and other federal officials to discuss the implementation of the law.

MAY 2021

On May 14, ACEP and EDPMA sent a second letter to the federal agencies that provided additional technical feedback for implementation. 

APRIL 2021

On April 14, ACEP and EDPMA participated in a listening session with key federal agencies implementing the No Surprises Act.

ACEP and EDPMA form the EM SMB Implementation Task Force in order to develop a robust advocacy strategy for the implementation of the “No Surprises Act.”  

On March 24, ACEP and EDPMA sent a letter to federal agencies that outlines our policy positions on key issues that affect emergency care. Read this Regs & Eggs blog post for highlights of the letter.

ACEP sent a letter to congressional leadership in response to the "No Surprises Act." The “No Surprises Act” was ultimately included in the major omnibus bill that was enacted on December 27, 2020. 

ACEP and other specialties and state medical associations send a joint statement to key Congressional offices reiterating our specific priorities for effective surprise billing legislation and pushing back against an unreleased proposal from the House Energy & Commerce and Senate HELP Committees.

ACEP sends a letter to Congressional leadership pushing back on efforts by the House Energy & Commerce and Senate HELP Committees to fold their surprise billing proposal into the fourth Congressional COVID-19 relief package.

As the three committees in the House that each passed their own surprise billing legislation work to reconcile them into a single product, ACEP and other specialties and state medical associations send a joint letter to them and to House leadership reiterating our specific priorities. 

The House Ways & Means Committee introduces H.R. 5826, the “Consumer Protections Against Surprise Medical Bills Act”, which ACEP and numerous other provider organizations announce support for; ACEP letter of support to Congress. 

ACEP and ten other specialties in the "Out of the Middle" campaign send letters to the House Ways & Means Committee and the House Education & Labor Committee reiterating our joint principles and specific asks on IDR. 

Chairman Pallone and Ranking member Walden of the House Energy & Commerce Committee release a joint proposal with Senate HELP Chairman Alexander, the Lower Health Care Costs Act of 2019. ACEP releases a statement expressing strong concerns with the proposal, and a letter to the authors with our specific points of opposition.

ACEP puts out a request to members to contact Congress and urge their legislators to weigh in with Congressional leadership to ask for a thoughtful solution instead of rushing a lesser solution through in a year-end funding package.

Almost 900 small and independent physician practices of all specialties, including emergency medicine, from across the country sign a letter to Congressional leadership calling for an approach on surprise billing that includes an accessible IDR process and does not put them at a disadvantage due to their size. 

ACEP and 100 other specialty and state medical societies send a letter to Congressional leadership calling for IDR to be part of any surprise billing proposal that Congress moves ahead on. 

Oct. 30: ACEP President Vidor Friedman op-ed published in Modern Healthcare, "IDR Process Offers Best Fix for Balance Billing."

Oct. 17: ACEP applauds Reps. Raul Ruiz and Phil Roe for reaching 100 co-sponsors on the Protecting People from Surprise Medical Bills Act (HR 3502). This is now the most heavily supported vehicle to solve surprise bills in the House.

Oct. 16: ACEP and 109 other state and specialty medical societies sign on to an AMA-led letter to Congressional House leadership calling for IDR and other priorities to be included in any surprise billing legislation.

September 5: ACEP coordinated and sent a letter to key committees in Congress that is signed by 60 smaller emergency physician groups to bring attention to the disproportionate impact that certain proposals being considered by Congress would have on small groups. 

September 4: ACEP, the AMA, and eight other hospital-based specialties send a letter to the House Education & Labor, and Ways & Means Committees outlining key principles that should be included in their respective surprise billing proposals under development. 

ACEP launched a digital campaign targeting Capitol Hill policymakers and staff to provide a deeper dive into the benefits of IDR and how proposals such as rate setting could negatively impact patient’s access to care: www.protectemergencycare.org. 

JULY 2019

July 17: ACEP issued a statement in response to the Energy and Commerce Committee markup supporting the markup's amendment to include independent dispute resolution while stating that the qualifying threshold for IDR needed to be lowered.

JUNE 2019

June 26: The Senate HELP Committee passes the Lower Health Costs Act, despite significant opposition from the provider community, including ACEP. Read the letter here stating strong concern with the bill's approach capping payment for out-of-network emergency care at the insurer's median in-network rate for that geographic area. 

June 26: ACEP supports the "Protecting People From Surprise Medical Bills Act" because it "truly takes patients out of the middle of disputes between insurers and medical providers. This bill goes further than any other legislative proposals to encourage transparency from insurance providers and make sure that patients understand the limitations of their insurance." Read the ACEP release.

June 10: ACEP President Vidor Friedman, MD, FACEP, testifies on behalf of emergency medicine before the House Energy & Commerce Health Subcommittee in its hearing on surprise billing. Watch it here, or read his written testimony.  

June 5: ACEP responds with a detailed comment letter to the legislative discussion draft, the Lower Health Costs Act, released by the Senate HELP Committee, which contains a section on surprise billing. The surprise billing policy options offered in the draft would dramatically disrupt the health care system and significantly distort negotiations between insurers and emergency physicians.

ACEP formed and led Out of the Middle, a consumer-focused campaign comprising eight other medical specialities. 

May 7: More than 550 ACEP members representing 47 states traveled to Washington, DC, for ACEP’s Leadership & Advocacy Conference. They conducted meetings with legislative offices about issues important to emergency medicine, including surprise billing. Shortly after LAC, President Trump gave a statement outlining the White House principles for surprise billing. We issued a statement of response explaining that “the principles the White House laid out do not go far enough to protect patients.” 

May 9: In response to the release of the White House's principles regarding surprise billing, ACEP President Dr. Vidor Friedman said "ACEP shares the Administration's view that improving transparency is critical to stopping surprise bills ... Still, the principles the White House laid out do not go far enough to protect patients."

May 14: The House Energy and Commerce Committee released a discussion draft of legislation on surprise billing for public comment that caps out-of-network payment for emergency care at the median in-network amount. ACEP responded with a comment letter expressing concern and offering recommendations for improvements.

May 17: ACEP responded to the STOP Surprise Medical Bills Act of 2019 introduced by several senators including Sen. Bill Cassidy, MD (R-LA) saying it would tilt a proposed arbitration process in the insurer’s favor.

May 23: ACEP applauded the bipartisan coalition led by emergency physician Rep. Raul Ruiz, MD (D-CA) and Rep. Phil Roe, MD (R-TN) that released its framework for the Protecting People from Surprise Medical Bills Act. 

ACEP submitted a statement for the record explaining the perspective of emergency medicine during the House Education and Labor Health Subcommittee hearing regarding surprise medical bills (no provider groups were represented at this hearing). 

L. Anthony Cirillo, MD, FACEP, a member of the ACEP Board of Directors, represented ACEP during a surprise medical billing event sponsored by the Brookings Institute. Dr. Cirillo talked about the individual responsibility of all stakeholders—hospitals, physicians, and insurers—to make sure that patients are kept out of the middle when emergency care is out-of-network, and he emphasized our proposed arbitration approach as a way to determine fair reimbursement amounts for out-of-network services.

ACEP continued to meet with Congressional offices to educate them on our framework and the unique aspects of emergency care, including EMTALA.

Feb. 4: ACEP worked with other medical organizations, such as the AMA, ACS, ASA, ACR, and AANS to identify potential areas of agreement that were shared in a group letter to Members of Congress.

Feb. 5: ACEP developed an extensive response to a letter from the Cassidy Workgroup sent to both plans and provider groups, including ACEP, with a detailed list of questions and requests to submit data to help inform their ongoing efforts to develop surprise billing legislation.

Feb. 19: ACEP staff, in conjunction with representatives from the AMA, ASA, ACS, ACP, ACR, CAP, met with the majority and minority staff of the Sen. HELP Committee for a briefing and discussion about surprise billing legislation. In addition, ACEP staff and our consultants continue to meet with all the members of the Sen. HELP Committee, House Energy and Commerce Committee, and Hs. Ways and Means Committee.

Feb. 26-27: ACEP President Vidor Friedman, MD, FACEP, met with several lawmakers who will be instrumental in the development of any surprise billing legislation, including Sen. HELP Committee Chairman Lamar Alexander (R-TN); HELP Committee Ranking Member Sen. Patty Murray (D-WA); HELP Committee members Sens. Maggie Hassan (D-NH) and Johnny Isakson (R-GA); House Energy and Commerce Health Subcommittee Ranking Member Rep. Mike Burgess (R-TX); Rep. Darren Soto (D-FL); as well as staff for the HELP Committee, Hs. Minority Leader Kevin McCarthy (R-CA), and Sen. Bill Cassidy.

ACEP President Vidor Friedman, MD, FACEP, and ACEP Executive Director Dean Wilkerson met with legislators on Capitol Hill to address ongoing discussions on out-of-network billing and other issues critical to emergency medicine, including drug shortages and access to emergency care. Dr. Friedman met with Sen. Bill Cassidy of Louisiana, Rep. Raul Ruiz, MD, of California, and Rep. Richard Hudson of North Carolina, to share ACEP’s message. Dr. Friedman and Mr. Wilkerson also spoke with Representatives Kenny Marchant (R-TX), Brett Guthrie (R-KY), Gus Bilirakis (R-FL), Andy Barr (R-KY), and Bill Flores (R-TX).

Jan. 23: President Trump hosted a roundtable at the White House featuring patients impacted by surprise medical bills and vowed to take action on the issue.

Jan. 28: ACEP released its Framework for Protecting Emergency Patients When Care is Out of Network. This proactive, legislative proposal would take patients completely out of the middle and would implement a baseball-style arbitration approach to settle disputes between insurers and physician groups on out-of-network bills, similar to the NY bill that has proven successful since its implementation. 

Jan. 31: Laura Wooster, ACEP Associate Executive Director for Public Affairs, participated as a panelist for a briefing hosted by the Senate Health, Education, Labor, and Pensions Committee staff, to present and answer questions from HELP Committee staff about surprise billing issues. HELP Committee Chairman Lamar Alexander (R-TN) had indicated that price transparency, including surprise billing, will be a legacy issue for him during his final two years in office. Ms. Wooster shared ACEP’s recently announced framework for protecting emergency patients with the group.

We continued our efforts to educate members of the Cassidy Workgroup. Dr. Cirillo and Laura Wooster, ACEP Associate Executive Director for Public Affairs, participated in the Cassidy Workgroup’s meeting with select providers, insurers, consumer groups, researchers, and FAIR Health. A significant portion of this meeting was spent delving further into aspects of arbitration (ACEP’s preferred approach), with considerable pushback from the insurers at the meeting.

In addition to the bipartisan workgroup’s efforts on surprise billing, two other related bills were introduced in the Senate (S. 3541/S. 3592) by Sens. Jeanne Shaheen (D-NH) and Maggie Hassan (D-NH), respectively, that would ban balance billing and provide options to states for how to set reimbursement rate (S. 3541) and establish arbitration for disputed reimbursements (S. 3592).

ACEP continued to work with other medical organizations, such as the AMA, ACS, ASA, ACR, and AANS to identify potential areas of agreement to share with Members of Congress.

ACEP worked with Congressional offices, including Sen. Cassidy, to create a bipartisan agreement on policy that would establish financial protections for patients who received unanticipated emergency care. As this was happening, the Cassidy Workgroup released a draft of legislation that would ban balance billing and – contrary to ACEP’s position – cap payments for out-of-network emergency care at only 125 percent of in-network, contracted rates. ACEP weighed in on the draft with comments.

ACEP participated in a roundtable discussion on health care price transparency initiated by the Cassidy Workgroup that included the AMA, the American College of Surgeons, the American Hospital Association, insurers and brokers, and patient advocates. This discussion was indicative of an increasing interest from Congress to identify ways to help consumers better understand their cost-sharing obligations before receiving treatment.

Senate bipartisan price transparency workgroup (Senators Bill Cassidy (R-LA), Michael Bennet (D-CO), Chuck Grassley (R-IA), Tom Carper (D-DE), Todd Young (R-IN), and Claire McCaskill (D-MO) – aka the Cassidy Workgroup – solicited input from stakeholders on ways to “increase health care price and information transparency to empower patients, improve the quality of health care, and lower health care costs.” ACEP submitted comments urging them to consider the unique aspects of emergency medicine, explaining how EMTALA and the Affordable Care Act “have had the effect of increasing overall volume, while discouraging incentives for health plans to enter into fair and reasonable contracts to provide services at reasonable in-network rates.”